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Crow v. Boulder County

United States District Court, D. Colorado

March 28, 2018

TYLER CROW, Plaintiff,
v.
BOULDER COUNTY, COLORADO, BOULDER COUNTY SHERIFF'S OFFICE'S OFFICE, JOHN AND JANE DOES, whose true names are unknown, Boulder County Jail guards and deputies, individually, DR. JEREMIAH KAPLAN, individually, JOHN AND JANE DOES, whose true names are unknown, Boulder County Jail nurses, individually, and ARAMARK CORRECTIONAL SERVICES, LLC, Defendants.

          OPINION AND ORDER RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          Marcia S. Krieger, Chief United States District Judge.

         THIS 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.[1]

         I. Jurisdiction

         Mr. 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.[2] The Court exercises jurisdiction with regard to these claims pursuant to 28 U.S.C. § 1331.

         Mr. 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.

         II. Relevant Facts

         The 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 discussion.

         Mr. 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.

         Mr. 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), [3] elevation, a lower bunk restriction, and the administration of 800 milligrams of ibuprofen twice a day.

         The 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.

         Mr. 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.

         On 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.

         The 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.

         Two days later, Mr. Crow was released on bond. Following his release, Mr. Crow received continued treatment from Dr. Birmingham, who ultimately prescribed narcotic pain medication.

         Mr. 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.

         III. ...


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