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Broadus v. Chapdelaine

United States District Court, D. Colorado

February 15, 2018

CHAPDELAINE, Associate Warden, [1] CHP, Clinical Health Provider, GILES, Lieutenant, EVA LITTLE, Lieutenant, LUYANDO, Lieutenant, THODE, Sergeant, Defendants.


          William J. Martinez United States District Judge.

         Plaintiff John Michael Broadus (“Broadus”) is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) and is currently housed at CDOC's Sterling Correctional Facility (“Sterling”). Broadus's Complaint (ECF No. 6) alleges numerous disparate violations of his constitutional rights by various Sterling employees and officials.

         Currently before the Court are two summary judgment motions, one filed by Defendant Correctional Health Partners, Inc. (“CHP”) (ECF No. 114) and the other filed by the remaining Defendants, who referred to themselves as the “CDOC Defendants” (ECF No. 118). For the reasons explained below, the Court grants summary judgment in favor of all Defendants except Thode and Giles. Thus, this case remains set for trial as against Thode and Giles, but given the reduced scope of that trial, it will be shortened to four days.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).[2]

         II. CLAIM 1 (KNEE INJURY)

         A. Relevant Facts

         1. Injury & Response

         Broadus injured his knee while playing basketball on February 28, 2014. (ECF No. 127 at 12, ¶ 9.) His knee swelled to “at least twice its normal size, ” and walking became very difficult. (Id. ¶ 10.) The following day, his condition had not improved, so he showed his knee to a correctional officer (not a party here) who advised that he should “talk to someone and declare a medical emergency.” (Id. at 13, ¶ 11.) Broadus claims that he then spoke to Defendant Luyando (also a correctional officer), who allegedly “told him that the medical clinic probably would not see him, but that he should submit a medical kite.” (Id.) Luyando “denies that he had knowledge of the alleged injury” on this date (ECF No. 154 at 3, ¶ 11), but he does not deny that he interacted with Broadus on this date.

         Broadus and Luyando had no further relevant interactions until March 5, 2014. Their stories of what happened on that date conflict. Broadus's story is as follows.

         By March 5, 2014, his knee had not improved, and he told another correctional officer (not a party here) that he wanted to declare a medical emergency. (ECF No. 127 at 13, ¶ 12.) He was then called into Luyando's office and he asked to declare a medical emergency, but Luyando “refused to alert medical personnel and told Mr. Broadus that he could not declare a medical emergency unless he was actually dying or the injury was life-threatening.” (Id. ¶¶ 13-14.) Broadus then returned to his cell, and was informed via intercom several minutes later that he was being assigned to a top bunk in a new cell. (Id. at 14, ¶ 17.) He protested because he could not climb onto a top bunk, and he was ordered to speak with Luyando again. (Id.) During this second conversation, Luyando refused to change the bunk assignment. (Id. at 19.)

         Luyando denies that he spoke with Broadus on March 5 prior to the dispute over the bunk assignment. (ECF No. 154 at 3-4, ¶¶ 13-15, 17.) Luyando agrees that cell and bunk reassignments were announced that day; moreover, it is undisputed that Broadus descended the stairs from the third tier of his cellblock to speak with Luyando about the reassignment. (ECF No. 118 at 7, ¶¶ 23-24.) But Luyando denies knowledge of Broadus's knee injury before that time, and he also says that he observed Broadus walking with no limp or other obvious problem when coming down the stairs and entering Luyando's office. (Id. ¶ 24.)

         While in Luyando's office, Broadus asked to declare a medical emergency. (Id. ¶ 25.) According to Luyando, he then contacted the medical clinic, “who denied the medical emergency and informed Lt. Luyando that Broadus would be seen when scheduled based on his medical kite requesting an appointment.” (Id.) Broadus denies that Luyando contacted the medical clinic. (ECF No. 127 at 6, ¶ 25.)

         Regardless of how the conversation with Luyando played out, Broadus ultimately would not accept a top bunk and so “refused the order [to transfer cells] and was placed into segregation.” (Id. at 14, ¶ 20.) This development triggered a requirement that Broadus

be escorted to the medical clinic for an anatomical evaluation. The “anatomical” is a security-requested evaluation in order to determine if an offender has any immediate medical or mental health concerns that would prevent an offender from being placed in RFP (“removed from population”) status. If an urgent medical or mental health situation is suspected based on this evaluation, the nurse will proceed to initiate a nursing protocol evaluation. If no urgent concerns are identified, no further action is expected from the nurse performing the anatomical. If nonurgent issues are identified, the nurse will instruct the offender to submit a kite for formal evaluation.

(ECF No. 118 at 7, ¶ 26 (citation omitted).) The nurse who performed Broadus's anatomical evaluation noted “swelling” of his right knee (id. at 8, ¶ 27), but also wrote, “No medical attention needed @ this time” (ECF No. 120-1 at 12).

         Broadus was seen at the medical clinic for his knee injury on March 25, 2014. (ECF No. 118 at 7, ¶ 28.) The clinician who examined him was Keri McKay, PA (not a party to this lawsuit). (ECF No. 120-1 at 14.) According to the “subjective” portion of McKay's treatment note, Broadus complained of a “dull constant ache” in his right knee and reported that he had been “trying to just take it easy on his knee with little relief. He states he has tried exercises and stretches as well to help with the pain but has not had any relief.” (ECF No. 120-1 at 14.) On the “objective” portion of the treatment note, McKay wrote that Broadus “ambulate[d] into clinic, in and out of chair without difficulty, ” but also that he “[a]mbulate[d] with antalgic gait favoring the right leg, right knee tender to palpation, with swelling.” (Id.) McKay further wrote, “McMurr[a]y's positive in the right leg and negative in the left leg.” (Id.) This refers to the McMurray test, which is a particular method of manipulating the leg and knee “to determine injury to meniscal structures.” Stedmans Medical Dictionary, definition no. 906520 (Westlaw, Nov. 2014 update). Given Broadus's response, McKay stated she would request an MRI. (ECF No. 120-1 at 14.)

         2. Request for MRI

         McKay's MRI request went to Defendant CHP, with whom CDOC contracts “to review and provide prior authorization for medical care to be provided to CDOC inmates outside of the internal CDOC medical system.” (ECF No. 114 at 2, ¶ 1.) CHP does not have the final say, however, on whether an inmate is authorized for a procedure. Through an appeals process, that question may ultimately end up before CDOC's chief medical officer, who makes the final decision. (Id. at 3-4, ¶¶ 3-10.)

         McKay's MRI request to CHP was handled by CHP employee Stephen Krebs, M.D. (not a party to this lawsuit). (Id. at 4-5, ¶¶ 13, 21.) Dr. Krebs received a complete transcript of McKay's treatment note. (ECF No. 129-3 at 2.) On April 10, 2014, he denied the MRI request, explaining as follows: “Declined at present. Exam only partially suggestive, no plain films described or included, and no conservative therapy described.” (Id. at 3.)

         On June 2, 2014, McKay submitted on Broadus's behalf a new MRI request to CHP. (ECF No. 116-2.) It is unclear whether Broadus had visited her a second time. In any event, McKay's request states, in relevant part:

Consulting for an MRI of his right knee due to needing further evaluation of joint damage. [Inmate] ambulating with antalgic gait, wearing knee brace, pain medications, and done physical therapy on his own with little relief. Will send encounter form 3/25/14. . . . Xrays returned and showing no evidence of bone damage. MRI prior was denied due to not having the xray. Has xrays and still needing an MRI to evaluate knee pain and underlying damage as McMurr[a]y's test was positive, and he is having difficulty and pain with walking.

(Id.) On June 13, 2014, Krebs denied this request, explaining “no objective impairment of ADLs [activities of daily living] noted.” (Id.)

         On September 16, 2014, a different physician assistant at the Sterling medical clinic submitted to CHP a request that Broadus receive physical therapy, and Krebs approved that request on October 6, 2014. (ECF No. 114 at 7, ¶ 34.) Broadus has not seen “any medical provider” regarding his knee since September 2014 (id. at 8, ¶ 36), although he claims he submitted a medical kite for further knee care sometime in 2015 because his knee was “still messed up” (ECF No. 126 at 7, ¶ 36 (internal quotation marks omitted)). It is not clear whether “any medical provider” includes physical therapists; or in other words, the record does not disclose whether Broadus attended physical therapy.

         B. Basic Principles of Eighth Amendment Liability Based on Inadequate Medical Care

         The Eighth Amendment protects against the infliction of “cruel and unusual punishment.” U.S. Const. amend. VIII. The Eighth Amendment's prohibition against cruel and unusual punishment encompasses deliberate indifference by prison officials to objectively serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976). Objectively serious medical needs are those that have “been diagnosed by a physician as mandating treatment or [are] so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Al-Turki v. Robinson, 762 F.3d 1188, 1192-93 (10th Cir. 2014) (internal quotation marks omitted). A prison official is deliberately indifferent to such a need when the official “knows of and disregards [the medical need]; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

         C. “Gatekeeper” Liability

         Broadus's Eighth Amendment claims against Luyando and CHP rely on what is commonly known as the “gatekeeper” theory of liability. Under this theory, “prison officials prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). But, for a gatekeeper to be liable, the objective component of the Eighth Amendment test requires “substantial harm, ” meaning that the delay led to “lifelong handicap, permanent loss, or considerable pain.” Al-Turki, 762 F.3d at 1193 (internal quotation marks omitted).

         D. Defendant Luyando

         Broadus's gatekeeper claim against Luyando quickly runs into a causation problem. See Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000) (“A plaintiff must allege factual causation-i.e. ‘but for' causation-in order to state a claim under § 1983.”). Broadus must be able to prove a causal connection between (a) Luyando's alleged refusal to permit him to declare a medical emergency and (b) whatever “lifelong handicap, permanent loss, or considerable pain, ” Al-Turki, 762 F.3d at 1193 (internal quotation marks omitted), that forms the basis of his claim. In other words, Broadus must have evidence from which a jury could conclude that, had Luyando permitted Broadus to visit the clinic when requested, the subsequent course of events would have been different.

         Broadus presents no evidence that this would have taken place, or that any other course of events would have played out. “Rather, the only evidence in the record of what clinic staff might have done is what they actually did . . . .” Tantlinger v. Duchaine, 2016 WL 8201447, at *5 (D. Colo. Aug. 19, 2016). Broadus did see a nurse on the day he tried to declare a medical emergency because he refused Luyando's bunk reassignment and was sent to segregation-and, as it happened, was therefore required to undergo an “anatomical” examination at the medical clinic. That nurse noted Broadus's knee injury but concluded, “No medical attention needed @ this time.” (ECF No. 120-1 at 12.)[3] Then, when Broadus eventually received more-formal medical care, factors outside Luyando's control delayed the care that Broadus believes he should have received, namely, the MRI and whatever treatment recommendations might have flowed from it. To this day, in fact, it appears that Broadus's knee has never been treated in the manner he believes necessary. “Accordingly, even assuming that [Luyando] behaved precisely as [Broadus] believes he should have, there is no evidence from which a jury could conclude that [Broadus] would have avoided any of the [pain] he actually suffered.” Tantlinger, 2016 WL 8201447, at *6.

         Accordingly, the causation element fails as to Luyando and he is entitled to summary judgment.[4]

         E. Defendant CHP

         Broadus asserts that CHP is also liable to him under the Eighth Amendment for preventing his access to medical care. (ECF No. 126 at 14.) Broadus states that his claim against CHP is limited to Krebs's June 2014 decision to deny an MRI. (Id. at 12, 16 n.1.)[5]

         Beyond the usual gatekeeper elements (see Part II.C, above), Broadus's case against CHP involves another layer of complexity because CHP is a business entity, not a natural person. In the Tenth Circuit, a business entity working on the state's behalf can only be liable through the municipal liability framework established by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658 (1978). See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003); Smedley v. Corr. Corp. of Am., 175 F. App'x 943, 945-46 (10th Cir. 2005). Under Monell, a municipality-or, in this case, a private entity under contract with the state to fulfill one of the state's functions- can be liable in 42 U.S.C. § 1983 for damages only when the entity's “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] injury.” 436 U.S. at 694. As applied to this case, then, Broadus must be able to show some CHP policy or custom of acting as a gatekeeper in the face of substantial harm.

         Broadus says that the policy at issue here is “requiring the presentation of several factors to support that an MRI is medically necessary. This policy, requiring multiple factors before granting an MRI, runs directly counter to the medical standard for MRIs.” (ECF No. 126 at 18 (citation omitted).) Broadus here relies on the testimony of his expert that the standard of care in the medical community is to order an MRI for a patient with a positive McMurray test-or in other words, that nothing but a positive McMurray test is needed to justify an MRI. (ECF No. 126 at 9, ¶ 9.)

         Even assuming that CHP abides by the policy Broadus alleges, and further assuming that Broadus's expert has accurately described the standard of care in the medical community, Broadus has not pointed this Court to any case in which an entity was held liable under Monell because it required more than the accepted standard of care before approving a medical procedure. A trial on this matter would essentially be asking a jury to listen to the testimony of Dr. Krebs and the testimony of Broadus's medical expert, and then to judge whether CHP impermissibly deviated from the medical standard of care. If mere medical malpractice cannot rise to an Eighth Amendment violation, Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”), the Court cannot see how it can nonetheless become a constitutional claim because the malpractice allegedly flowed from an official policy. Moreover, if a disagreement between medical professionals about the appropriate treatment of a prisoner cannot be the basis of Eighth Amendment liability, see McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977) (“defendants did not have to bear the risk arising from the variations in the views of the doctors”), the Court cannot similarly see how a simple disagreement between an entity's procedure-approval policies and the community standard of care can be the basis of Eighth Amendment liability.[6] CHP is entitled to summary judgment in its favor.


         Broadus claims that Chapdelaine is liable to him for exposing him to uranium-contaminated water at Sterling for several months.

         A. Relevant Facts

         1. Uraniu ...

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