United States District Court, D. Colorado
KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the “Motion to Dismiss
from Defendant Timothy Creany.” (Doc. No. 30.)
Plaintiff filed a Response (Doc. No. 49), to which Defendant
Creany replied. (Doc. No. 55.) Also before the court is the
“Motion to Dismiss from Defendant Correctional Health
Partners.” (Doc. No. 46.) Plaintiff filed a Response
(Doc. No. 69), to which Defendant Correctional Health
Partners (“CHP”) replied. (Doc. No. 71.) Finally
before the court is the “Motion by Defendant P.A. Singh
to Dismiss the Complaint for Failure to State a Claim.”
(Doc. No. 61.) Although provided with additional time to do
so (Doc. No. 72), Plaintiff did not respond to the same.
a former inmate proceeding pro se, initiated this
action on October 18, 2016. (Doc. No. 1
[“Comp.”].) In his Complaint, Plaintiff alleges
that he did not receive adequate medical care while
incarcerated. (See generally Comp.) He explains that
prior to his incarceration he sustained an on the job injury
to his left foot on July 10, 2015 when a nail punctured his
“first metatarsal head.” (Id. at 3, 4.)
Plaintiff was treated by Dr. Natasha Deonarain who placed
Plaintiff in a surgical boot. (Id. at 4.) Records
from Dr. Deonarain note that she examined him on August 13,
2015. (Resp. at 7.) She noted Plaintiff's report that, as
a result of a previous puncture wound in his foot, he was
continuing to experience pain and paresthesia if he stood for
longer than 5-10 minutes and that a previous MRI was negative
for nerve damage. (Id. at 7-8.) Upon examination,
Dr. Deonarain noted Plaintiff exhibited a normal gait and
that a puncture wound was visible over the first metatarsal
heal on left foot and that it was tender to direct palpation.
(Id. at 9.) She referred Plaintiff to a podiatrist.
(Id. at 7.) She also recommended over the counter
medications and limiting himself to light duty.
Michael Zyzda, podiatrist, saw Plaintiff on September 2, 2015
and stated in his records, “We will get him approved
for some orthotics to see if we can distribute the weight and
pad that area more” and noted Plaintiff would need to
get casting done for the same. (Id. at 10.) Dr.
Zyzda also noted Plaintiff might benefit from topical cream
four times per day. (Id.) In late September or
October 2015, before the orthotics could be completed,
Plaintiff was incarcerated at Bent County Correctional
Facility (“BCCF”). (Comp. at 4; Doc. No. 42 at
arriving at BCCF, Plaintiff requested medical attention
related to his left foot. (Comp. at 4.) According to
Plaintiff's medical records from BCCF, he was seen by
Jamie Harrelson on September 30, 2015. (Doc. No. 42 at 1.)
Plaintiff reported that due to the previous foot injury, his
toe goes numb and hurts if he stands on it or wears tight
shoes. (Id.) Upon examination, Harrelson noted
Plaintiff had a normal gait, normal strength in the subject
toe, and subjective complaints of pain. (Id.)
Harrelson recommended Plaintiff be fitted for wide boots and
recommended he discontinue wearing the surgical boot.
was next seen on October 20, 2015 by Jeremy Romero, a
Registered Nurse. (Id. at 2.) Plaintiff reported
that he experienced foot pain and numbness when standing for
longer than ten minutes and when crossing over his leg.
(Id.) He also stated the symptoms last for about
five to eight minutes. (Id.) Plaintiff reported that
prior to his incarceration, his physicians had performed an
x-ray, prescribed pain medication, and were in the process of
completing a mold of his foot in order “to make a shoe
for him.” (Id.) Nurse Romero referred
Plaintiff to a physician and requested his medical records
from Concentra. (Id.)
saw Defendant Dr. Timothy Creany on December 9, 2015. (Comp.
at 4; Doc. No. 42 at 3.) Plaintiff reported that he was
experiencing pain in his left foot from an injury suffered in
July 2015 and that he used to be on Percocet. (Id.)
Dr. Creany noted Plaintiff was in an “ortho shoe”
and had a normal gait. (Id.) Dr. Creany ordered
“labs to ensure no ongoing infxn but doubt.”
(Id.) He informed Plaintiff that he could prescribe
pain medication that would help to some extent.
(Id.) Dr. Creany noted, “[D]oubt he will be
approved to get an orthotic, but awaiting his old records. I
suspect he will cont to ask about this and not accept the
answers he gets.” (Id.)
alleges Dr. Creany informed him that he could not provide
orthopedic shoes because the Department of Corrections
(“DOC”) would not allow it. (Comp. at 4.)
Plaintiff states that Dr. Creany first prescribed Lamictal
for pain and when Plaintiff reacted badly, he prescribed
Pamilair instead. (Id.; Doc. No. 42 at 3.) According
to Plaintiff, Dr. Creany recommended an x-ray of
Plaintiff's foot but Plaintiff refused because the
primary problem with his foot was nerve damage, which an
x-ray would not detect. (Comp. at 4.) Dr. Creany also told
Plaintiff to order shoes from the DOC canteen. (Id.)
Plaintiff did so but found the shoes were too narrow, causing
problems with neuropathy in his foot, and he continued
instead to use his medical boot. (Id. at 4, 5.)
2016, Plaintiff was transferred to the Arkansas Valley
Correctional Facility (“AVCF”). (Id. at
4.) Similar to his arrival at BCCF, Plaintiff immediately
requested medical attention regarding his left foot injury.
(Id.) Plaintiff was examined by Defendant Tejinder
Singh, a Physician's Assistant. (Id.) Plaintiff
alleges Defendant Singh accused him of lying, spit in his
face, and told Plaintiff that he would not issue medical
shoes and that Plaintiff had to wear regular shoes like
everyone else. (Id. at 4-5.)
alleges officials of CHP were aware of his medical conditions
and his lack of treatment. (Id. at 5.) He contends
he suffers constant pain and discomfort similar if not worse
than when the injury first occurred. (Id.)
Construing Plaintiff's Complaint liberally, he is
asserting claims under 42 U.S.C. § 1983 based on
violations of his right to adequate medical care under the
Eighth Amendment. (See generally Comp.) Each
Defendant has filed a Motion to Dismiss contending Plaintiff
has failed to state a claim upon which relief can be granted.
Pro Se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007). See also Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations
of a pro se complaint “to less stringent standards than
formal pleadings drafted by lawyers”).
a pro se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). See also
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (noting that a court may not “supply additional
factual allegations to round out a plaintiff's
complaint”); Drake v. City of Fort Collins,
927 F.2d 1156, 1159 (10th Cir. 1991) (noting the court may
not “construct arguments or theories for ...