United States District Court, D. Colorado
REPORT AND RECOMENDATION ON DEFENDANTS' MOTION TO
DISMISS AMENDED COMPLAINT (DKT. #49)
REID. NEUREITER, UNITED STATES MAGISTRATE JUDGE
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.
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.
Mr. Vigil's Amended Complaint
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
• 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
• 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.
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 ...