United States District Court, D. Colorado
December 22, 2016
GEORGE MOORE, Plaintiff,
NANCEY ZIMMER, in her official capacity as Denver Health Medical Center Intake RN of the Denver Sheriff Department, and in her individual capacity; AND DR. CHRISTIAN STOB, in his individual capacity as Denver Health Medical Center Doctor of the Denver Sheriff Department, and in his official capacity, Defendants.
ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION
FOR SUMMARY JUDGMENT
S. Krieger Chief United States District Judge.
MATTER comes before the Court pursuant to the Defendants'
Motion for Summary Judgment (# 93), Sworn Affidavit and
Declaration of Plaintiff George Moore (# 101), Amended Sworn
Affidavit and Declaration of Plaintiff George Moore (# 102),
Reply in Support of Motion for Summary Judgment by
Defendants, Nancey Zimmer RN and Dr. Christian Stob (#103),
and Supplement Response to Sworn Affidavit and Declaration of
George Moore (# 108).
Court exercises jurisdiction over this matter pursuant to 28
U.S.C. § 1331.
Court has reviewed the submissions of the parties and finds
the following facts to be undisputed, or where disputed
construes the evidence most favorably to the non-movant, Mr.
October 9, 2014, Mr. Moore was arrested and incarcerated in
the Denver County Jail. As part of the intake process, the
Defendant, Nurse Nancey Zimmer, screened Mr. Moore to
determine his medical needs while in jail. Mr. Moore told her
that he was disabled, had “stability issues, ”
needed a cane or walker, and suffered “tremendous pain
walking and getting up and down without a cane.” She
responded that she needed to screen forty other inmates and
did not have time to address his concerns. She did not
provide Mr. Moore with a cane or walker.
October 10, 2014, Mr. Moore submitted a grievance to the
jail. He complained about Nurse Zimmer's failure to
provide him with a cane. He also said that he was suffering
increased pain without a cane and asked that he be issued a
Moore was seen by the Defendant, Dr. Christian Stob, shortly
after he submitted his grievance. Dr. Stob reviewed Mr.
Moore's medical records that showed that Mr. Moore was
diagnosed with posttraumatic left hip degenerative joint
disease that caused him chronic pain. They also showed that
Mr. Moore had been using a cane or walker to ambulate under
the direction of his treating physician. Dr. Stob wrote an
order directing that Mr. Moore be given a cane or a walker,
but one was not provided to him that day.
October 11, 2014, Mr. Moore got out of bed to go to the
bathroom. While he was walking, his hip gave out, and he
collapsed. Three hours after he fell, an intake nurse brought
Mr. Moore a walker. His fall caused him to suffer injuries to
his hip, groin, and lower back resulting in tremendous pain,
the inability to sleep, difficulty eating, the inability to
exercise, depression, and the embarrassment of having to have
others, including inmates, help him put on his left sock and
Moore, acting pro se,  filed this lawsuit on January 6,
2015 and amended his complaint on February 11, 2015. In the
Amended Complaint, Mr. Moore asserted claims under 42 U.S.C.
§ 1983 and the Americans with Disabilities Act against
Nurse Zimmer, Dr. Stob, and several other defendants. Judge
Babcock dismissed the Amended Complaint on March 23, 2015.
Mr. Moore appealed, and the Tenth Circuit Court of Appeals
affirmed the dismissal of all claims other than Mr.
Moore's individual claims against Nurse Zimmer and Dr.
Stob brought under 42 U.S.C. § 1983. As to those claims,
the Tenth Circuit reversed. See Moore v. Diggins,
633 Fed.Appx. 672 (10th Cir. 2015).
Zimmer and Dr. Stob now move for summary judgment (# 93) on
the remaining claims. They argue that Mr. Moore cannot show
that they acted with deliberate indifference to his medical
needs. Mr. Moore argues that there is a genuine issue of
material fact precluding summary judgment.
Standard of Review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Thus, the primary question presented to the Court in
considering a Motion for Summary Judgment or a Motion for
Partial Summary Judgment is: is a trial required?
is required if there are material factual disputes to
resolve. As a result, entry of summary judgment is authorized
only “when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Savant Homes,
Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A
fact is material if, under the substantive law, it is an
essential element of the claim. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the conflicting evidence would enable a rational
factfinder to resolve the dispute for either party.
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
consideration of a summary judgment motion requires the Court
to focus on the asserted claims and defenses, their legal
elements, and which party has the burden of proof.
Substantive law specifies the elements that must be proven
for a given claim or defense, sets the standard of proof, and
identifies the party with the burden of proof. See
Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). As to the evidence offered during summary judgment,
the Court views it the light most favorable to the non-moving
party, thereby favoring the right to trial. See Tabor v.
Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).
for summary judgment generally arise in one of two
contexts-when the movant has the burden of proof and when the
non-movant has the burden of proof. Each context is handled
differently. When the movant has the burden of proof, the
movant must come forward with sufficient, competent evidence
to establish each element of its claim or defense.
See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the
absence of contrary evidence, this showing would entitle the
movant to judgment as a matter of law. However, if the
responding party presents contrary evidence to establish a
genuine dispute as to any material fact, a trial is required
and the motion must be denied. See Leone v. Owsley,
810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City
of Grand Junction Police Dep't, 717 F.3d
760, 767 (10th Cir. 2013).
different circumstance arises when the movant does not have
the burden of proof. In this circumstance, the movant
contends that the non-movant lacks sufficient evidence to
establish a prima facie case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The moving party must
identify why the respondent cannot make a prima
facie showing; that is, why the evidence in the record
shows that the respondent cannot establish a particular
element. See Collins, 809 F.3d at 1137. If the
respondent comes forward with sufficient competent evidence
to establish a prima facie claim or defense, then a
trial is required. Conversely, if the respondent's
evidence is inadequate to establish a prima facie
claim or defense, then no factual determination of that claim
or defense is required and summary judgment may enter.
See Shero v. City of Grove, Okla., 510 F.3d 1196,
1200 (10th Cir. 2007).
Process Clause and the Eighth Amendment protect pretrial
detainees and convicted prisoners, respectively, from cruel
and unusual punishment. See Lopez v. LeMaster, 172
F.3d 756, 759 n. 2 (10th Cir. 1999) (citing Bell v.
Wolfish, 441 U.S. 520, 535 n. 16 (1979)) (in determining
whether an incarcerated individual's rights were
violated, the analysis is identical whether under conducted
under the Due Process Clause or Eighth Amendment). Deliberate
indifference to a prisoner's serious medical needs is
considered to be cruel and unusual in violation of the Eighth
Amendment and Due Process Clause. See Estelle v.
Gamble, 429 U.S. 97 (1976); Sealock v. Colo.,
218 F.3d 1205, 1209 (10th Cir. 2000). To establish that a
prison official acted with deliberate indifference requires
proof of both objective and subjective indifference. Self
v. Crum, 439 F.3d 1227, 1233 (10th Cir. 2006);
Sealock, 218 F.3d at 1209.
indifference is demonstrated by showing that the inmate
suffered from a serious medical need. Sealock, 218
F.3d at 1209 (citing Farmer v. Brennan, 511 U.S.
825, 834 (1994)). A medical need is sufficiently serious if
it is one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person
would recognize the need for a doctor's attention.
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). A
delay in providing medical treatment may constitute objective
indifference if the delay results in substantial harm.
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.
2001). Substantial harm typically occurs when an inmate
suffers a lifelong handicap, permanent loss, or considerable
pain. Mata, 427 F.3d at 751.
contrast, subjective indifference requires evidence that a
defendant acted with a culpable state of mind; that is,
knowing/conscious disregard of the medical need or with
recklessness. Self v. Crum, 439 F.3d 1227, 1232
(10th Cir. 2006). An inmate may demonstrate a medical
provider's culpable state of mind by presenting evidence
that the provider knew of the inmate's serious medical
condition (or such condition was obvious) but nevertheless
delayed treatment, referral, or examination. Id.
opinion reversing the dismissal of his 42 U.S.C. § 1983
claims against Nurse Zimmer and Dr. Stob, the Tenth Circuit
essentially resolved the issue of whether Mr. Moore can make
a prima facie showing of objective indifference.
Although it addressed the sufficiency of Mr. Moore's
allegations in the amended complaint, it outlined what facts,
if true, would prove objective indifference in this case:
When he requested a walker or cane, Mr. Moore complained of
stability issues and “tremendous pain” to sit
down, stand up, or walk around. Dr. Stob verified that
Moore's treating physician had prescribed both a cane and
walker. Further, the delay in treatment resulted in
substantial harm: when Moore fell, he further injured his hip
and complains again of “tremendous pain, ”
difficulty sleeping, increased difficulty in caring for
himself, and depression.
Moore v. Diggins, 633 Fed.Appx. 672, 676 (10th Cir.
2015) (emphasis in original). Thus, if the
evidence before the Court would be sufficient to prove these
allegations, then it is sufficient to make a prima
facie showing as to the objective indifference element
of Mr. Moore's deliberate indifference claim.
evidence before the Court, viewed most favorably to Mr.
Moore, is sufficient to show objective indifference. When he
was first incarcerated, Mr. Moore requested a walker or cane
and complained of stability issues and tremendous pain. Mr.
Moore's medical records showed his diagnosis and need for
a cane or walker to ambulate. The failure to provide Mr.
Moore with a cane or walker resulted in injuries to his hip,
groin, and lower back, tremendous pain, the inability to
sleep, difficulty eating, the inability to exercise,
increased difficulty in caring for himself, and depression.
Therefore, there is sufficient evidence for a prima
facie showing as to the objective indifference element
of his claims against Nurse Zimmer and Dr. Stob.
Tenth Circuit's opinion also sets out facts which, if
true, would be sufficient to make a prima facie
showing that Nurse Zimmer acted with subjective indifference:
Moore alleges that when he spoke with RN Zimmer, he
complained about his tremendous pain, explained he had
stability issues and was disabled under the ADA, and needed a
cane or a walker. In response, she said she did not have time
to deal with him and sent him away.
evidence before the Court, taken most favorably to Mr. Moore,
is sufficient in this regard as well. Mr. Moore told Nurse
Zimmer that he had stability issues, was disabled, needed a
cane or a walker, and suffered from tremendous pain. In the
face of such information, Nurse Zimmer failed to review his
records or supply him with a cane or walker. Instead, she was
deliberately indifferent to his needs, saying that she did
not have time to address his concerns. Therefore, Mr. Moore
has made a prima facie showing as to the subjective
indifference element of his claim against Nurse Zimmer.
Tenth Circuit's opinion also sets out facts which, if
supported by the evidence, would be a sufficient prima
facie showing of subjective indifference by Dr. Stob:
As to Dr. Stob, he verified that Moore's treating
physician prescribed a cane and walker yet did not obtain a
cane or walker for Moore or call other medical departments to
try to find one.
undisputed that Dr. Stob ordered that a cane or walker be
provided to Mr. Moore, and that Mr. Moore had not received
the cane or walker when he fell the day after the order was
issued. In determining whether the evidence shows that Dr.
Stob was subjectively indifferent, the Court focuses on
whether he “did not obtain the cane or walker for
Moore”. Consistent with the standard in Self v.
Crum, supra, this phraseology must mean that Dr. Stob
not only recognized Mr. Moore's need, but in addition, he
could/should have done something more than order that it be
Stob's prescriptive order indicates his intent that Mr.
Moore's needs be provided for, rather than an intent to
disregard them. The record contains no evidence that would
rebut that intent. For example, there is no evidence showing
that Dr. Stob was able to fill or usually filled his own
prescriptions, but chose not to in this circumstance.
Similarly, there is no evidence that Dr. Stob knew there
would be any delay in providing a cane or walker and that he
could avoid such delay by taking further action. Finally,
there is no evidence that Dr. Stob interfered with the
fulfillment of his order - that he told someone to delay in
filling it or purposely/recklessly misrouted or delayed its
fulfillment. In the absence of evidence showing purposeful or
reckless inaction by Dr. Stob in fulfilling his order for a
cane or walker, Mr. Moore has not made a prima facie
showing as to the subjective indifference on his claim
against Dr. Stob. Accordingly, on this claim, summary
judgment shall be entered in favor of Dr. Stob.
foregoing reasons, Defendants' Motion for Summary
Judgment (# 93) is GRANTED IN PART and DENIED IN PART.
Summary Judgment is entered in favor of Dr. Stob and against
Mr. Moore. Mr. Moore's claim against Nurse Zimmer will
proceed to trial. The caption in this matter will be reformed
to delete all Defendants except Nurse Zimmer and reflect only
the individual claim brought against her. The remaining
parties shall jointly contact chambers within 14 days to
schedule a Pretrial Conference on the claim proceeding to
 In considering Mr. Moore's
filings, the Court is mindful of his pro se status,
and accordingly, reads his filings liberally. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). However, such
liberal construction is intended merely to overlook technical
formatting errors and other defects in his use of legal
terminology and proper English. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). Pro se status does
not relieve Mr. Moore of the duty to comply with the various
rules and procedures governing litigants and counsel or the
requirements of the substantive law, and in these regards,
the Court will treat Mr. Moore according to the same standard
as counsel licensed to practice law before the bar of this
Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993);
Ogden v. San Juan County, 32 F.3d 452, 455 (10th
 Neither Mr. Moore nor counsel
for the Defendants address the Tenth Circuit's opinion
issued in this case. Given Mr. Moore's pro se status, his
failure to do so is understandable. But the counsel for
Defendants' failure to do so is not.