United States District Court, D. Colorado
AARON S. RABIDUE, Plaintiff,
NICOLE BLATNICK; TINA ROSLER; ALVIN MASSENBURG; JENNIFER NOVATNY; HONG DANG; and DEPUTY DIRECTOR OF PRISONS JOHN DOE,  Defendants.
OPINION AND ORDER ON MOTION FOR SUMMARY
S. KRIEGER UNITED STATES DISTRICT COURT
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.
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
Rabidue returned to the Limon clinic on February 4 and was
examined by Nurse Tina Rosler. 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.
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.
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.
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 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.
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.
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.
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.
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.
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. 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.
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.
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.
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 ...