United States District Court, D. Colorado
OPINION AND ORDER RE: DEFENDANTS' MOTIONS FOR
S. Krieger, Chief United States District Judge.
MATTER comes before the Court pursuant to Motions
for Summary Judgment (the “Motions”) filed by
Defendants Boulder County Sheriff's Office's Office
(the “Sheriff's Office”) and Dr. Jeremiah
Kaplan (#110), and Defendant Aramark
Correctional Services, LLC (“Aramark”)
(#106). The Court has also reviewed briefing
submitted by Mr. Crow in opposition to the Motions
(#113, #114), and the replies in support
thereof submitted by the Sheriff's Office and Dr. Kaplan
(#116) and Aramark (#115).
The parties' Joint Motion to Exclude Expert Testimony
Pursuant to Fed.R.Evid. 702 (#108) is also
before the Court.
Crow brings two claims under 42 U.S.C. § 1983 against
the Sheriff's Office and Dr. Kaplan for deliberate
indifference to his broken foot. The Court exercises
jurisdiction with regard to these claims pursuant to 28
U.S.C. § 1331.
Crow's other claims - negligent creation of a dangerous
condition (against the Sheriff's Office), negligent
operation (also against the Sheriff's Office), and
violation of the Colorado Premises Liability Act (the
“PLA”) against Aramark - all arise under Colorado
law. The Court exercises supplemental jurisdiction with
regard to these claims pursuant to 28 U.S.C. § 1367.
following facts are undisputed or where disputed are viewed
in the light most favorable to the nonmovant, Mr. Crow. More
factual details are provided as necessary in the Court's
Crow was arrested for failure to appear on a warrant
associated with a misdemeanor traffic offense, and held in
the Boulder County Jail (the “jail”) for much of
November 2014. While detained, he was assigned to work with
the kitchen crew. Part of the kitchen crew's duties were
required to wash the kitchen floor and several dozen
relatively large (4' by 8', and 25 pounds) traction
mats. The detainee/inmates were required to pick up the
traction mats, hose them off, and put them in a pile to keep
the main kitchen floor clear for hosing.
Crow was injured on November 30, 2014, at approximately 8:30
am. He had just deposited a mat in the pile and was returning
to the work space, when he was forced to dodge another inmate
carrying a mat in the opposite direction. He slipped, stepped
on the pile of traction mats, caught his foot among the mats,
then fell. This fall caused his foot to bend at an awkward
angle creating intense pain. A cursory examination at the
scene confirmed that his foot appeared to be broken. Mr. Crow
was taken in a wheelchair to the jail medical clinic, and at
approximately 8:45 am, examined him. The nurse noted swelling
of his foot, and immediately put Mr. Crow on the jail's
so-called “sprain/strain” protocol, which
consisted of a medical wrap (an Ace bandage), crutches, ice
packs (to be provided twice a day),  elevation, a lower bunk
restriction, and the administration of 800 milligrams of
ibuprofen twice a day.
nurse also promptly notified the on-call physician, Dr.
Kaplan, of Mr. Crowe's injury, and he ordered an x-ray.
The x-ray was taken later that afternoon. A radiologist
reviewed the scan about an hour-and-a-half after it was
taken, and diagnosed a fracture in Mr. Crow's proximal
second metatarsal bone. When Dr. Kaplan received the
radiologist's report, he instructed the jail nursing
staff to schedule an appointment for Mr. Crow with an
orthopedic specialist, then increased Mr. Crow's
ibuprofen dose to 600 mg three times a day and instructed the
staff that he should continue to use ice and crutches and/or
a wheelchair. At no point did Dr. Kaplan examine Mr. Crow.
The next morning after the injury, a jail nurse scheduled an
appointment for Mr. Crow with an orthopedic specialist on
December 3, 2014, two days hence.
Crow experienced significant pain between following the
incident through the time of his appointment with the
orthopedic specialist. He states that the prescribed
ibuprofen was wholly ineffective. The record contains notes
by the jail's nursing staff noted that his foot was very
swollen during this interval. There also is some indication
that fracture blisters were beginning to form by the morning
of the December 3, 2014.
December 2, 2014, Mr. Crow submitted a kite asking to see a
doctor “for his broken foot and pain.” The kite
mentioned nothing about inadequacy of pain medication or the
need for more. Jail staff responded that an appointment with
a specialist had been scheduled, but consistent with jail
security policies, he was not told precisely when.
next day, December 3, Mr. Crow transported by jail staff to
be examined by Dr. Mark Birmingham, an orthopedic specialist
and podiatrist. Dr. Birmingham confirmed the fracture and
placed Mr. Crow in a splint/boot. He directed that Mr. Crow
should continue to use crutches, elevate his foot several
times daily, apply ice, and take oral anti-inflammatory
medication as needed. Dr. Birmingham recommended that Mr.
Crow have a follow-up MRI. There is some evidence that Mr.
Crow told Dr. Birmingham that he wanted narcotics because the
ibuprofen was not working. Dr. Birmingham considered
prescribing narcotics, but after consulting with the deputy
who accompanied Mr. Crow to the appointment, decided against
doing so due because of the risk that an inmate may misuse
narcotics himself or herself, or that narcotics prescribed
for one inmate may be (voluntarily or involuntarily) diverted
to other inmates. There also is some evidence in the record
that suggests that there was a protocol at the jail to
accommodate inmates who were prescribed narcotics, and that
some inmates had received narcotics. After Mr. Crow was
treated by Dr. Birmingham, he returned to the jail.
days later, Mr. Crow was released on bond. Following his
release, Mr. Crow received continued treatment from Dr.
Birmingham, who ultimately prescribed narcotic pain
Crow contends that he suffered severe and permanent physical
and psychological injury, including arthritis, a pronounced
limp, chronic neck and back pain, and emotional injury as a
result of the broken foot and what he believes to a lack of
necessary treatment. He also says that as a result of the
injury and the subsequent required medical treatment
(e.g., a cast for several months and heavy
painkiller prescriptions), he was unable to work for nearly a
year, and he seeks damages for that period of unemployment.