United States District Court, D. Colorado
REPORT & RECOMMENDATION ON DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT (DKT. #70 AND DKT. #72)
REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
Mr. Blake Pedigo, who proceeds pro se, 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.
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.)
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.
following facts are undisputed unless otherwise noted.
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.)
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.
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.)
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.)
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.)
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.)
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”).
Reed's assessment, reflected in his notes,  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.)
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
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.)
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.)
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.)
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.)
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.)
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
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.)
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.)
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.)
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.)
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.)
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
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.)
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.)
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.)
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.
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