Pedigo v. Reed

          REPORT & RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DKT. #70 AND DKT. #72)

          N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mr. Blake Pedigo, who proceeds pro se^[1], brings this action under 42 U.S.C. § 1983 asserting a deprivation of his constitutional rights while in the custody of the Colorado Department of Corrections (“CDOC”) at the Fremont Correctional Facility (“FCF”) and the Sterling Correctional Facility (“SCF”). Specifically, Mr. Pedigo asserts he was denied adequate medical care when Defendants refused his requests for Anterior Cruciate Ligament (“ACL”) surgery and a CDOC-issued knee brace, thereby acting with deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights. Mr. Pedigo had torn his ACL prior to being admitted to Colorado's correctional system, and he had been scheduled for surgery prior to his arrest and conviction.

         Before the Court are summary judgment motions filed by the individual Defendants Reed, Woodruff, Tiona, Ward, and Kautz, all current or former CDOC employees (the “CDOC Defendants”) (Dkt. #70), and by Defendant Correctional Health Partners (“CHP”). (Dkt. #72.) District Judge R. Brooke Jackson referred both motions to the undersigned. (Dkt. #74.)

         The Court has reviewed the parties' filings and exhibits concerning both motions (Dkt. #70, #83, & #87 (Defendant CHP's motion), and Dkt. #72, #75, #76, #82, & #88 (the CDOC Defendants' Motion)), taken judicial notice of the Court's entire file in this case, and reviewed the applicable Federal Rules of Civil Procedure, statutes, and case law. The Court also heard extensive argument at a November 28, 2018 hearing. Now being fully informed, the Court respectfully RECOMMENDS that both Motions for Summary Judgment (Dkt. #70 & #72) be GRANTED.

         I. Factual Background

         The following facts are undisputed unless otherwise noted.

         In October 2011, Mr. Pedigo tore his right ACL when he attempted to jump off a 12- or 13-foot ledge on his skateboard. (Dkt. #72-1 at 2; Dkt. #72-3 at 2 ¶ 8; and at 30.) Mr. Pedigo went to the emergency room where he was given crutches and an immobilizer. (Dkt. #72-1 at 3-5.) In December 2011, Mr. Pedigo met with an orthopedic specialist, Dr. Cooney, who discussed and demonstrated range of motion exercises with Mr. Pedigo. (Dkt. #72-3 at 31-32.)

         Over the next couple of years, Mr. Pedigo had multiple injuries to his right knee. (Id. at 35.) It is unclear whether he sought medical treatment for these injuries, but there are no medical records documenting them.

         In late 2013 or early 2014, Mr. Pedigo re-injured his right knee in another skateboarding accident. (Id.; Dkt. #13 at 4.) Mr. Pedigo saw Dr. Cooney on February 18, 2014. (Dkt. #72-3 at 33.) Dr. Cooney's notes indicate Mr. Pedigo “would like to discuss surgery.” (Id., and at 35 (“Patient would like to consider surgery.”)) His notes also state “patient has not had physical therapy, ” and “has not used assistive devices.” (Id. at 33.) After discussing with Mr. Pedigo “the anticipated rehab which is extensive, ” Dr. Cooney scheduled Mr. Pedigo for surgery, noting Mr. Pedigo “could benefit from some preoperative rehab to optimize his quad strength as well as improve his ROM and his functional gait prior to proceeding with surgery.” (Id. at 35; Dkt. #13 at 4.) Dr. Cooney's notes also state “[t]he risks and possible complications of ACL reconstruction and knee arthroscopy were explained to [Mr. Pedigo] today.” (Dkt. #72-3 at 35.)

         Just prior to the scheduled surgery, Mr. Pedigo was arrested and detained at the Boulder County Detention Center (“BCDC”). (Dkt. #13 at 4.) While at the BCDC, Mr. Pedigo asked his mother to obtain a DonJoy knee brace for him because he thought it might help stabilize his knee. (Dkt. #72-1 at 5-6.) A Boulder County jail physician authorized the DonJoy knee brace, provided Mr. Pedigo pay for it-which he did. (Dkt. #13 at 4; Dkt. #72-1 at 5-6.) In August 2015, after his conviction, Mr. Pedigo transferred from BCDC to CDOC's Denver Reception and Diagnostic Center (“DRDC”), and brought his DonJoy knee brace with him. (Dkt. #13 at 5, 11.)

         Fremont Correctional Facility

         In September 2015, Mr. Pedigo transferred to FCF, where he initially retained his DonJoy knee brace. (Dkt. #13 at 5, 11; Dkt. #72 at 3 ¶ 8.) On his FCF intake form, Mr. Pedigo stated he had knee, leg, and back pain, and that he needed surgery on his knee. (Dkt. #72-3 at 9.)

         Licensed Physician's Assistant (“PA”) and CDOC Defendant Daniel Reed acted as Mr. Pedigo's primary care provider (“PCP”) at FCF from approximately October 2015 through May 2016. (Id. at 13-28.) During this time frame, Mr. Reed saw Mr. Pedigo approximately seven times, usually for scheduled appointments, which are described in detail in Mr. Reed's medical notes. (Id..) According to these notes, Mr. Pedigo also was a “no show” for two additional scheduled appointments. (Id. at 26, 27.)

         Mr. Reed's notes indicate he first saw Mr. Pedigo on October 23, 2015. (Id. at 2 ¶ 12, and at 13.) At this appointment, Mr. Pedigo primarily complained of pain in both feet. (Id.) A “secondary c/o [complaint]” was pain in his right knee due to his torn ACL. (Id.) Mr. Pedigo showed Mr. Reed his “ortho notes” indicating he had an ACL tear. (Id. at 13.) He told Mr. Reed he constantly wore his knee brace because he had no stability without it, but that the brace might need adjusting. (Id.) Mr. Reed's notes indicate Mr. Pedigo would need security clearance for his knee brace (“a M punch in card”). (Id.)

         In Mr. Reed's assessment, reflected in his notes, ^[2] Mr. Pedigo's reported knee pain was “out of proportion to usual ACL injury, ” which “should not have chronic pain.” (Id., and at 2 ¶ 13.) He noted the “[m]arked pain” described by Mr. Pedigo, “may be a contraindication to surgery.” (Id. at 13.) Mr. Reed explained to Mr. Pedigo “that tightening up the joint with DJD [degenerative] changes [surgery] would increase, not decrease pain.” (Id., and at 2-3 ¶ 13, and at 4 ¶ 18.) Mr. Reed did not believe Mr. Pedigo would be a good candidate for ACL reconstruction surgery. (Id. at 2 ¶ 13.)

         Because Mr. Pedigo had his brace on, and because his knee pain “was a secondary c/o [complaint] today, ” Mr. Reed's notes reflect he would “do more exam next visit.” (Dkt. #72-3 at 13.) Mr. Reed also noted he would x-ray Mr. Pedigo's knee to “eval [sic] joint further, ” and review the “policy on ACL recon [sic] surgery since that requires extensive PT [physical therapy].” (Id.)

         On November 12, 2015, Mr. Reed again saw Mr. Pedigo and reviewed his x-ray, noting “the imaging demonstrated a relatively healthy knee, ” and Mr. Pedigo had “[g]ood joint space, with a tiny thickening of medial joint line, ear[l]y degenerative change [arthritis].” (Id. at 3 ¶¶ 14, and at 15, 16.) Mr. Reed referred to his notes from the October 23, 2015 appointment “on pain and stability.” (Id. at 15.) Mr. Pedigo was angry because no surgery had been scheduled and mentioned getting a lawyer. (Id.) Mr. Reed noted Mr. Pedigo “[h]as an ADA eval on 11/17/15 so will get good knee exam then” and “[c]an review options then.” (Id.) His notes also reflect he would review Mr. Pedigo's case with Defendant Dr. Susan Tiona, CDOC's Chief Medical Officer (CMO). (Id.)

         Mr. Reed prepared separate notes reflecting his conversation with Dr. Tiona, indicating they discussed the fact that CDOC could not accept responsibility for Mr. Pedigo's “$11, 000 knee brace, ” and that the knee brace presented security concerns since, if broken down, it “could be made into shanks.” (Id. at 17.) As for security and liability concerns, CDOC policy requires that medical devices for inmates be approved by third-party administrator CHP, with whom CDOC contracts to review medical requests for outside consultation or medical equipment not available through CDOC clinical services. (Id. at 3 ¶ 15; Dkt. #72-4 at 2 ¶ 11.)

         CHP is not a healthcare provider, and therefore does not treat or make medical diagnoses for CDOC inmates. (Dkt. #70 at 3 ¶¶2-3.) As a medical services organization, CHP's only role is to review specific requests made by CDOC healthcare providers (e.g., CDOC physicians, physician assistances, etc.) on behalf of CDOC inmates, and determine whether to grant or deny those requests based on CDOC clinical guidelines. (Id.) When a request is denied, the requesting provider (but not the inmate) may appeal the denial. (Dkt. #83 at 3 ¶ 5, and at 4 ¶ 14.)

         Mr. Pedigo's DonJoy knee brace was not a CDOC-issued brace. (Dkt. #72-4 at 1 ¶ 5.) Due to the afore-referenced policy concerning medical devices, Defendant Dr. Tiona determined Mr. Pedigo would not be allowed to keep his DonJoy brace. (Dkt. #72 at 4 ¶ 15.) Because the brace contains metal and fiberglass, it could be used to make weapons. (Id.; Dkt. #72-4 at 2 ¶10.) It also could hide contraband. (Id.; Dkt. #72 at 4 ¶ 15.) Dr. Tiona did not personally evaluate Mr. Pedigo, so her decision that he could not keep his DonJoy knee brace was not a medical decision that he did not need a knee brace. (Dkt. #72-4 ¶¶ 15, 17, 19.) She also determined that if medically necessary, Mr. Pedigo could be issued a CDOC knee brace. (Id. ¶ 15.) Although Mr. Pedigo has never personally spoken with Dr. Tiona, he agrees she “is the person that made the decision to not allow [him] [his] knee brace.” (Dkt. #72-1 at 18, 26.)

         On November 17, 2015, Mr. Reed again evaluated Mr. Pedigo's knee, verified he had a complete disruption of his ACL, and, based in part on Mr. Pedigo's statement that he frequently fell without the brace, submitted a request to CHP for a CDOC-issued brace. (Dkt. #72 at 5 ¶ 19; Dkt. #72-3 at 18-19.) CHP denied the request based on lack of medical necessity, and Mr. Reed did not appeal the denial. (Dkt. #82 at 3 ¶ 10; Dkt. #72-3 at 20.)

         Mr. Reed did, however, have Mr. Pedigo “come back” on December 23, 2015 “to discuss the previously mentioned ACL brace he brought with him, ” and noted Mr. Pedigo was “not wearing it anyway since it is loose now.” (Dkt. #72-3 at 23.) Mr. Reed also noted that because the request for a brace from CHP had been denied, he “[o]ffered [Mr. Pedigo] [a] black elastic brace instead today, but [Mr. Pedigo] states it would not help and not interested.” (Id.) Mr. Reed again noted that Mr. Pedigo's complaints regarding pain were “out of proportion to the x ray which has good joint space.” (Id.) Noting Mr. Pedigo already was “[t]aking canteen Naprosyn, motrin and Tylenol, ” Mr. Reed also “offered elavil for chronic knee pain, ” but Mr. Pedigo “was not interested, ” and “[s]aid he would be contacting his lawyer” (although he did accept Elavil for his neck and back pain). (Id.) Mr. Reed told Mr. Pedigo “he could kite message to increase dose [of his current pain medicine] ¶ 50 mg, ” and noted he would “make working restriction of flat surfaces, and may sit for 10 min every 2 hr of standing.” (Id.)

         Mr. Reed continued to treat Mr. Pedigo while he was at FCF, and prepared detailed notes describing his next three appointments or conversations with Mr. Pedigo on February 9, 2016, April 18, 2016, and May 6, 2016. On February 16, 2016, Mr. Reed approved Mr. Pedigo for a cane, increased his chronic pain medicine dosage, and gave him Voltarin gel. (Dkt. #72-3 at 24.) Defendants Reed, Woodruff, Tiona (by telephone), and Warden Archuleta met with Mr. Pedigo on April 18, 2016, to discuss and explain why he could not have his DonJoy brace at FCF, that a brace is not necessary for an ACL tear, and that using a brace can actually cause harm through muscle atrophy. (Dkt. #72 at 7 ¶ 28.)

         The April 18, 2016 discussion was Mr. Woodruff's only direct interaction with Mr. Pedigo. (Dkt. #75 ¶ 10.) As the HSA for FCF, Mr. Woodruff made only administrative decisions, was never involved in an inmate's medical or treatment decisions, and had no authority to override a decision made by an inmate's medical provider. (Id. ¶¶ 6, 12; Dkt. #72 ¶¶ 24-25.) Mr. Woodruff is not a medical provider. (Dkt. #75 ¶ 14.) His involvement with Mr. Pedigo was strictly limited to administrative purposes and, more specifically, the security issues posed by Mr. Pedigo possessing a non-CDOC-issued knee brace. (Id. ¶¶ 6-9, 12; Dkt. #72 ¶ 25.) Thus, Mr. Woodruff was not involved in deciding whether Mr. Pedigo's knee brace was “medically necessary, ” whether he could keep it, or whether he needed another knee brace. (Dkt. #72 ¶¶ 25-26; Dkt. #75 ¶¶ 10- 11.) He similarly never entered any information onto Mr. Pedigo's medical file or made any notes concerning Mr. Pedigo's physical condition or limitations. (Dkt. #75 ¶ 13.)

         Mr. Reed, in his medical notes pertaining to the April 18, 2016 discussion, noted “the main reason for using a brace is instability.” (Dkt. #72-3 at 25.) He specifically noted he had not observed instability in Mr. Pedigo's knee, and that “Pt [patient] has been walking without the brace with no reported instability.” (Id.) This observation is consistent with Mr. Pedigo's deposition testimony that he can walk without his knee brace without experiencing any instability. (Dkt. #72-1 at 21.)

         Mr. Pedigo missed his next two scheduled appointments with Mr. Reed. (Dkt. #72-3 at 26-27.) The last time Mr. Reed saw Mr. Pedigo was on May 6, 2016, when Mr. Pedigo was walking through the clinic. (Id. at 28.) Mr. Reed stopped Mr. Pedigo so he could measure him for a neoprene sleeve with Velcro straps. (Id.)

         Sterling Correctional Facility

         Mr. Pedigo transferred to SCF on May 31, 2016. Mr. Pedigo saw Defendant Trisha Kautz, a licensed nurse practitioner, on July 19, 2016, after he issued a kite complaining that he had serious medical issues. (Dkt. #72-6 at 1 ¶ 6, and at 9, 10.) Ms. Kautz became his PCP at SCF until in or around February 2017. (Id. at 4 ¶ 18.) At his July 19, 2016 appointment, Mr. Pedigo told Ms. Kautz he had a serious knee injury, needed surgery, had been scheduled for surgery but had been incarcerated, and needed a readjustment for his DonJoy knee brace, which he had brought with him to SCF. (Dkt. #72-6 at 2 ¶ 7, and at 10.) Mr. Pedigo also complained to her of stability issues. (Id. at 3 ¶ 12, and at 10.) Mr. Pedigo told Ms. Kautz he bought pain medication every week from the canteen, but when she reviewed his canteen purchases, she found no recent purchases (going back to April) for pain medication. (Id. at 2 ¶ 7.) Ms. Kautz's medical notes reflect that Mr. Pedigo “ambulates into clinic, onto exam table without difficulty.” (Id. at 10.)

         Ms. Kautz initially submitted a request to CHP for a knee brace repair. (Id. at 2 ¶ 8.) She also requested an evaluation by an orthopedic specialist. (Id.) After discussing Mr. Pedigo's non-CDOC-issued knee brace with Dr. Tiona, Ms. Kautz revoked his brace, and submitted a request to CHP for a replacement CDOC-issued brace. (Id. ¶¶ 9-10.) All these requests were denied.

         Ms. Kautz and Dr. Tiona discussed obtaining video footage of Mr. Pedigo's activities. (Id. ¶ 11.) The footage taken of Mr. Pedigo in August 2016 shows him doing, among other exercises, stair jumps-jumping four to five stairs with both legs after crouching into a squat-without any observable difficulty or stability issues. (Id. at 3 ¶¶ 12-13; Dkt. #76.) The video footage indicated to Ms. Kautz that Mr. Pedigo did not have structural instability that might require a knee brace. (Dkt. #72-6 at 3 ¶ 14.)

         Mr. Pedigo admits he has no instability when moving in a straight line, but asserts he does have instability when he makes pivoting motions, such as twisting and turning his knee. (Dkt. #82 at 7 ¶ 27.) As a result, Mr. Pedigo re-injured his right knee on December 25, 2016, when he twisted it playing basketball while trying to pivot. (Dkt. #72-1 at 35-37.) Mr. Pedigo admits he had not been cleared to play basketball, and that he understood the risk of doing so but chose to disregard it. (Id. at 37.) He also concedes he was not just shooting the ball, but was running up and down the court “attempting to play full basketball activity.” (Id. at 46.)

         At his follow-up appointment the day after his basketball injury, Mr. Pedigo asked for a cane rather than crutches because he thought it was important to put weight on his right leg and knee. (Id. at 37-38.) In the treating nurse's notes, however, she indicated that she instructed Mr. Pedigo to keep weight off his injured knee-which he disregarded because, according to Mr. Pedigo, he “knew [his] leg better than the nurse, ” and “believe[s] [he] know[s] better than anybody else.” (Id. at 38.) Mr. Pedigo also declined an x-ray. (Id. at 39.) A week and a half after the basketball injury, Mr. Pedigo admitted to running without using crutches. (Id. at 40.)

         On January 13, 2017, Mr. Pedigo finally agreed to an x-ray at an appointment with Ms. Kautz, which was taken on January 26, 2017. (Dkt. #72-6 at 3-4 ¶¶ 16-17.) During his January 13, 2016 appointment, Ms. Kautz discussed knee exercises with Mr. Pedigo that she believed were more appropriate than the stair jumps and other exercises he had been observed doing in August 2016, and gave him a pain management plan handout. (Id. at 3 ¶ 16.) Mr. Pedigo's January 26, 2017 x-ray reflected old damage, and nothing alarming. (Id. at 4 ¶ 17.) In or around February 2017, Mr. Pedigo was assigned to another PCP at SCF.

         Defendant Gary Ward is the HSA at SCF. (Dkt. #72-10 ¶ 4.) Like Mr. Woodruff, as an HSA Mr. Ward is only involved in as an administrator with respect to clinical services, and has no authority to order specific treatments or the provision of medical services. (Id.; Dkt. #72 ¶ 53.) Although he is not involved in deciding whether an inmate should consult with an outside provider, he does make sure ...