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Rabidue v. Blatnick

United States District Court, D. Colorado

August 17, 2017

AARON S. RABIDUE, Plaintiff,



         THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment (# 96), the Plaintiff's Response (# 100), and the Defendants' Reply (# 103). For the following reasons, the motion is granted, in part, and denied, in part.

         I. BACKGROUND [2]

         On January 31, 2014, Plaintiff Aaron Rabidue, an inmate at the Limon Correctional Facility (Limon), complained of intense pain in his left foot to nurse and health services administrator for the Limon clinic, Nicole Blatnick. Nurse Blatnick consulted with Alvin Massenburg, a physician's assistant (P.A.), completed a nursing protocol for sprains, and gave Mr. Rabidue an Ace bandage and Ibuprofen. Thereafter, Mr. Rabidue requested crutches, a housing restriction that would put him on the first floor, and a medical lay-in that would allow him to stay in his cell and have food delivered (collectively referred to as his requested “accommodations”). These requests were denied.

         Mr. Rabidue returned to the Limon clinic on February 4 and was examined by Nurse Tina Rosler.[3] He told her that his pain was increasing, it was keeping him up at night, and the Ibuprofen was not working. Nurse Rosler consulted with P.A. Massenburg, and then ordered that x-rays be taken of Mr. Rabidue's foot and ankle. She provided Mr. Rabidue with Motrin for the pain, but denied the requested accommodations. The x-rays were taken February 5; the Motrin ran out on February 8.

         Mr. Rabidue returned again to the Limon clinic on February 11 complaining of extreme pain. He was again examined by Ms. Rosler. Again, he requested accommodations. In consultation with P.A. Massenburg, Ms. Rosler rejected these requests, but gave Mr. Rabidue two doses of Tylenol 3.

         The next day, Mr. Rabidue attended a previously scheduled appointment with P.A. Massenburg to discuss a spinal injury. Noting decreased sensation in Mr. Rabidue's foot, P.A. Massenburg prescribed Neurontin to address any nerve-related pain. Mr. Rabidue again requested accommodations, and P.A. Massenburg again refused.

         P.A. Massenburg also met with Mr. Rabidue two days later to discuss his x-ray results. The x-rays revealed a mild expansion of the diaphysis[4] of the fifth metatarsal bone in his left foot. P.A. Massenburg asked if Mr. Rabidue could remember any incident that would have caused a fracture; he could not think of any. Mr. Rabidue again requested accommodations, which P.A. Massenburg denied. P.A. Massenburg told him to keep wearing the Ace bandage.

         On March 4, Mr. Rabidue “heard a popping and cracking sound” when he stepped on his left foot. He came to the clinic complaining of a sharp and intense pain. P.A. Massenburg ordered more x-rays of Mr. Rabidue's foot and authorized his use crutches, but continued to reject Mr. Rabidue's request for a housing restriction and lay-in. Ultimately, Mr. Rabidue did not utilize the authorized crutches for reasons that the parties dispute.[5]

         The second set of x-rays came back on March 11. Observing them, P.A. Massenburg determined that Mr. Rabidue had multiple fractures in his left foot. He then ordered an outside consultation with an orthopedic doctor, and for the intervening time period provided Mr. Rabidue a “post-op” shoe with a hard and flat bottom and pain medication. None of the other requested accommodations were authorized. Mr. Rabidue asked for more effective medication but was refused. The post-op shoe did not improve Mr. Rabidue's pain.

         Still in pain, Mr. Rabidue asked for a meeting with Nurse Blatnick in her capacity as health services administrator to complain about the treatment he was receiving. The meeting was held on March 18. It was Nurse Blatnick's normal practice to review an inmate's medical records before a meeting, but apparently she did not do so. Nurse Blatnick told Mr. Rabidue that sprains can take weeks to heal, even though he told her he did not have a sprain but had a fracture. When he tried to show her his medical records reflected a fracture, she threatened to end the meeting. He also informed her that his prescriptions had run out before they were refilled. Nurse Blatnick told him she would talk to P.A. Massenburg about the medications and she would meet with him afterward. When Nurse Blatnick met again with Mr. Rabidue on March 24, she had not spoken with P.A. Massenburg.

         On March 25, P.A. Massenburg met with Mr. Rabidue and prescribed a 14-day supply of pain medication, but continued to refuse any of his requested accommodations. The prescription ran out April 8 and apparently was not renewed.

         On April 14, Mr. Rabidue again heard a snapping sound when he stood on his left foot. He complained to Nurse Hong Dang that he was concerned he had broken his foot and he wanted an x-ray. Nurse Dang refused an immediate x-ray, telling him he had to wait for his appointment with the orthopedic doctor. Mr. Rabidue again requested accommodations, but Nurse Dang replied, “no tray, no provider, no meds, no ice, and definitely no crutches!”. She then conducted the protocol to assess a sprain.[6] On the written protocol there was a box entitled “Possible fracture” listed under “Findings Requiring IMMEDIATE Referral”. The marking of this box would have resulted in an immediate referral to an outside provider. Nurse Dang did not check the box because there was no outside provider on-site that day. Instead, she checked a box for “Finger or toe injury with no obvious deformity to provider at next work day” which did not require an immediate referral.

         Mr. Rabidue saw an orthopedic specialist three days later on April 17. Dr. Merribeth Bruntz took x-rays and determined that Mr. Rabidue had four fractured metatarsal bones in his left foot. Dr. Bruntz gave him a walking boot that immobilized his foot. The fractures healed over the course of the next 14 weeks.

         Mr. Rabidue brought this action suit in August 2014, proceeding without the assistance of counsel. In his Amended Complaint, he alleges two Eighth Amendment claims and seeks relief under 42 U.S.C. § 1983. Specifically, he avers that the Defendants were deliberately indifferent to his medical needs by (1) failing to provide effective pain medication; and (2) failing to impose limitations on his physical activity. The Defendants moved to dismiss these claims in February 2015. On referral from the Court, the Magistrate Judge recommended dismissal of Mr. Rabidue's first claim. In addition, the Magistrate Judge recommended that both claims be dismissed to the extent that the remedy sought was an award of monetary damages from the Defendants in their official capacities. The Court adopted this recommendation in July 2015. Counsel was appointed for Mr. Rabidue in January 2016. The Defendants now move for summary judgment.


         Rule 56 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). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-FrancisOilCo.v.Producer=sGasCo., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 ...

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