Vigil v. Raemish

          REPORT AND RECOMENDATION ON DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT (DKT. #49)

          N. REID. NEUREITER, UNITED STATES MAGISTRATE JUDGE

         This case is before the Court pursuant to an Order (Dkt. #51) issued by Judge William J. Martinez referring Defendants Rick Raemisch, Sean Foster, Theordor [sic] Lawrence, Denise Asher, Captain Bosley, Sgt. Aragon, Major Bucholtz, and Deborah Borrego (collectively “Defendants”) Motion to Dismiss Amended Complaint. (Dkt. #49.) The Court has carefully considered the motion and Plaintiff Daniel James Vigil's response. (Dkt. #60.) On February 13, 2019, the Court heard argument on the subject motion. (Dkt. #63.) The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and makes the following recommendation.

         I. BACKGROUND

         a. Procedural History

         Mr. Vigil, proceeding pro se, initiated this case on June 15, 2018. (Dkt. #1.) On June 20, 2018, Judge Lewis T. Babcock dismissed his claims against Defendants Rick Raemisch and Sean Foster, and the remaining claims were drawn to Magistrate Judge Michael J. Watanabe. (Dkt. #5.) Upon Judge Watanabe's retirement, the case was reassigned to me on August 15, 2018. (Dkt. #22.) Soon thereafter, Defendants moved to dismiss Mr. Vigil's Complaint and asked the Court to stay discovery pending a ruling on the motion. (Dkt. ##28 & 30.) The Court granted the motion to stay. (Dkt. #36.) In response to Defendants' motion to dismiss, on September 28, 2018, Mr. Vigil filed an Amended Complaint pursuant to Fed.R.Civ.P. 15(a)(1)(B). (Dkt. #45.) On October 19, 2019, Defendants filed the subject motion to dismiss. (Dkt. #49.)

         b. Mr. Vigil's Amended Complaint

         The nature of Mr. Vigil's claims requires a relatively detailed recitation of the chronology of events described in his Amended Complaint. Construing Mr. Vigil's allegations liberally and assuming all well-pled allegations as true, he asserts as follows.

• Mr. Vigil is in the custody of Colorado Department of Corrections (“CDOC”). He is currently housed in the Buena Vista Correctional Facility (“BVCF”), but most of the events giving rise to this lawsuit occurred at the Arkansas Valley Correctional Facility (“AVCF”) in Ordway, Colorado.

• On the evening of November 21, 2016, Mr. Vigil tripped on a damaged portion of an AVCF sidewalk. He fell and broke his right arm and injured his right index finger.

• Although he was in extreme pain, Mr. Vigil at first hoped his injuries would improve on their own. When the pain got worse, he “put in several medical requests to be seen, ” but received no response.

• On November 29, 2016, and only after Mr. Vigil showed prison staff his broken arm, Defendant Lawrence, an AVCF physician assistant, examined Mr. Vigil. Mr. Lawrence ordered an x-ray and gave Mr. Vigil a sling.

• An x-ray was taken on December 2, 2016. Four days later Mr. Lawrence informed Mr. Vigil that his arm was broken and he would be sent to an orthopedic specialist.

• On December 20, 2016, Mr. Vigil was being transported to see an orthopedic specialist in Pueblo, Colorado when the van he was in had a flat tire, stranding him and two CDOC officers for several hours. The officers were eventually told to simply return Mr. Vigil to AVCF, and Mr. Vigil did not see the specialist.

• Mr. Vigil did not see to an orthopedic specialist until February 3, 2017 (ten weeks after his arm was broken), despite over 20 unanswered requests to seen by medical personal in the intervening weeks. He had not been given a cast or pain medication, other than Tylenol, during this period.

• During the February 3, 2017 examination, the orthopedic specialist “was very upset” that it had taken so long for prison staff to address Mr. Vigil's broken arm and, given the delay, she was unsure if anything could be done short of surgery. She prescribed physical therapy three times a week for four weeks, and Mr. Vigil was given two bandages to wrap his arm and a foam rubber ball. He was told to follow-up with the doctor for re-evaluation.

• However, Mr. Vigil was not taken to physical therapy and was not taken to see another doctor until he was moved out of the AVCF six months later.

• About three weeks after the February 3, 2017 appointment, Mr. Vigil asked family members to try to find out what they could about his medical treatment. Mr. Vigil's father spoke to the orthopedic specialist who conducted the exam and was told that the CDOC refused to pay for Mr. Vigil's physical therapy.

• Mr. Vigil then began to file grievances regarding his lack of medical treatment and the failure to properly maintain the sidewalk, which he contends was a known danger even after repairs had been made. The CDOC “refused” his grievances because they were not filed within 30 days of the incident.

• On May 26, 2017, more than six months after the fall, Mr. Vigil received a note from Dr. Magnuson, a physician at another CDOC facility, that stated, “Your recent x-ray radius-neck fracture not healed yet [sic].[”]

• In May 2017, Mr. Vigil was sent to Dr. Paterson at the Canyon City Territorial Prison. Dr. Patterson told him that due to the serious condition of his arm, Mr. Vigil's medical options were now limited to major surgery. Mr. Vigil was faced with the prospect of a complete replacement of the elbow joint with a prosthetic elbow.

• In June 2018, when this lawsuit was filed, Mr. Vigil still had not had surgery, even though he was told that two surgeons and a doctor had appealed the CDOC's decision to refuse to pay for the surgery. Mr. Vigil was taken off Ansaid, a nonsteroidal anti-inflammatory drug (NSAID), in preparation for surgery.

• In the late summer/early fall of 2018, Mr. Vigil finally had surgery on his arm and was able to start physical therapy. It turned out that his elbow joint did not need to be completely replaced. Instead, a doctor performed a bone graft from his hip and used screws, metal straps, and a metal splint to repair his arm.

• As of September 24, 2018, Mr. Vigil was also scheduled to have surgery on his right hand, which had also been injured in the fall.

         Mr. Vigil asserts three claims for relief pursuant to 42 U.S.C. § 1983. Claim One is an Eighth Amendment claim for deliberate indifference to serious medical need against Defendants Lawrence, Asher, Jane and John Doe, and Borrego. Mr. Vigil identifies Mr. Lawrence as the physician assistant at AVCF who was in charge of treating his injuries. He alleges that Mr. Lawrence failed to undertake the proper procedures to ensure that Mr. Vigil's medical treatment was proficient, timely, and professional. Ms. Asher is sued as the head the AVCF nursing department. Mr. Vigil claims she was responsible for scheduling medical appointments. Ms. Borrego is a nurse ...