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Shoals v. CHP Clinical Health Partners

United States District Court, D. Colorado

January 24, 2018




         This 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.


         Plaintiff, a former inmate proceeding pro se, initiated this action on October 18, 2016. (Doc. No. 1 [“Comp.”].)[1] 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. (Id.)

         Dr. 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 1.)

         Upon 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. (Id.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         In May 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.)

         Plaintiff 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.


         1. Pro Se Plaintiff

         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”).

         However, 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 ...

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