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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OFCOLORADO
Civil Action No. 11-cv-00813-CMA
DANIEL SELF,
Plaintiff,
v.
KEVIN MILYARD, in his individual and official capacity as warden of Sterling
Correctional Facility (SCF),
ARISTEDES W. ZAVARAS, in his individual capacity as Executive Director of
the Colorado Department of Corrections (CDOC),
CHERYL SMITH, in her individual and official capacity as Chief Medical Officer
of CDOC,
DR. GARY FORTUNATO, in his individual capacity as physician at SCF,KATHY LOVELL, in her individual capacity as a nurse working at SCF,
GATBEL CHAMJOCK, in his individual capacity as a Physicians Assistant
working at SCF,
BEVERLY DOWIS, in her individual capacity as Health Service Administrator
PHYSICIAN HEALTH PARTNERS, Inc. a Colorado Corporation and managed
care provider for DOC, d/b/a CORRECTIONAL HEALTH PARTNERS,
DR. STEPHEN KREBS,
JULIE DORSEY,
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KAREN SCHMEDEKE, RN
LIFECARE, INC., a Colorado corporation,
NICOLE HENSMAN, EMT, as an individual, and agent/employee of Defendant
LifeCare Inc.
DANIEL SCHELLENGER, EMT-P as an individual, and agent/employee of
Defendant LifeCare Inc.
Defendants.
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__________________________________________________________________
FIRST AMENDED COMPLAINT _________________________________________________________________
No responsive pleadings having been filed, Plaintiff Daniel Self, through his
attorney Brett Lampiasi, amends his complaint to reorganize the text of that
complaint and to bring the complaint in conformity with D.C.COLO.LCIVR 10.1
(E). Plaintiff, through this amendment, add new claims against existing parties,
and the following newly added parties: DR. STEPHEN KREBS, JULIE DORSEY,
and KAREN SCHMEDEKE.
Mr. Self also amends his complaint to set forth the factual basis in support of
his claims against the newly added parties.
NATURE OF THE CASE
Mr. Self brings this complaint under the authority of 42 U.S.C. 1983
against Defendants--both state employed and private healthcare providers and their
superiors--for:
1) Defendants deliberate indifference to Mr. Selfs constitutionally
protected right to refuse emergency medical treatment; and
2) Defendants deliberate indifference in failing to treat a severely broken
wrist. Mr. Self claims Defendants acts and omissions violate, and
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continue to violate, his Eighth and Fourteenth Amendment Rights under
the U.S. Constitution; and
3) Common law tort claims against certain non-state-employed Defendants
and those Defendants superiors.
JURISDICTION, VENUE, AND NOTICE
1. This action arises under the Constitution and laws of the United States,
including Article III, Section 1 of the United States Constitution and 42 U.S.C.
1983 and 42 U.S.C. 1988. The jurisdiction of this Court is further invoked
pursuant to 28 U.S.C. 1331, 1343, 2201.
2. The United States District Court for the District of Colorado is the proper
venue for this action pursuant to pursuant to 28 U.S.C. 1391(b), as all of the
events giving rise to the claims occurred in the District of Colorado.
3. Supplemental pendent jurisdiction is based on 28 U.S.C. 1367 because theviolations of federal law are substantial and the pendent causes of action derive
from a common nucleus of operative facts.
PARTIES
4. Plaintiff DANIEL SELF is a resident of the State of Colorado and a citizen of
the United States. He is in the custody of the Colorado Department of
Corrections at Sterling Correctional Facility (SCF).
5. Defendant KEVIN MILYARD is the warden of SCF, and as such, is responsible
for the custody and care of Mr. Self and other prisoners at SCF. He oversees all
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employees at SCF, including medical staff, and has authority for the
establishment and implementation of all policies and procedures at SCF.
6. Defendant, ARISTEDES W. ZAVARAS, is the Executive Director of CDOC,
and as such, is responsible for the custody and care of Mr. Self and other
prisoners at SCF. He oversees all employees in CDOC, including the medical
staff, and has the authority to establish, alter, and implement all policies and
procedures at that institution.
7. Defendant CHERYL SMITH, is the Chief Medical Officer of CDOC, and as
such is responsible for monitoring and directing the total process by which
health care services are provided to prisoners. Defendant Smiths duties include
ensuring health care provided throughout CDOC is adequately and safely
delivered. Defendant Smith has a duty to put policies in place to ensure CDOC
staff and outside medical personnel have access to, and therefore honor, inmateCPR directives.
8. Defendant DR. GARY FORTUNATO, is a doctor at SCF. Dr. Fortunato was
responsible for ensuring Mr. Selfs DNR Order was honored at all times. He
was responsible for instructing medical staff regarding the proper charting of
Mr. Selfs CPR Directive. Along with other Defendants, Dr. Fortunato was also
responsible for ensuring Mr. Self received proper follow-up care as directed by
independent physician specialists.
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14.Defendant NICOLE HENSMAN is a trained emergency medical technician.
She is an agent and employee of Defendant Lifecare, Inc. Defendant Hensman
was working within the scope of her employment with Lifecare at all times
relevant to this complaint.
15.Defendant PHYSICIAN HEALTH PARTNERS, through its wholly owned
subsidiary CORRECTIONAL HEALTH PARTNERS is the managed care
provider for CDOC and is responsible for, among other responsibilities, pre-
approving and scheduling inmate visits to specialists and coordinating follow-up
care for those individuals. Collectively the company is referred to in this
amended complaint as PHP/CHP. Its principal place of business is 1515
Arapahoe St., Tower 1 Suite 300, Denver, CO 80202.
16.Defendant DR. STEPHEN KREBS is a Colorado physician and the Chairman
of the Board of Managers for Defendant Physician Health partners. Dr. Krebswas also the President and CEO of Defendant Correctional Health Partners and
its Chief Medical Officer during all times relevant to the claims made in this
complaint. He was responsible for the timely approval of specialist-
recommended healthcare treatment for Mr. Self and other inmates. Dr. Krebs
supervised other PHP/CHP personnel and created company policy. Dr. Krebs
was responsible for ensuring delivery of healthcare that meets or exceeds the
medical standard of care.
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17.Defendant JULIE DORSEY is the Regional Manager for Client Services for
PHP/CHP. Ms. Dorseys duties include supervision, training, and support so
that PHP/CHP properly implements policies to meet its contractual obligations
to the Colorado Department of Corrections and, by extension, Mr. Self and other
inmates.
18.KAREN SCHMEDEKE, RN is the Nurse Manager of PHP/CHP. Ms.
Schmedeke, along with Clinical Services Defendants, is responsible for
implementing clinical policies related to the provision of healthcare to Mr. Self
and other SCF inmates. Ms. Schmedeke acted in a supervisory capacity with
respect to Clinical Services Defendants.
BACKGROUND
I. Clinical Services Defendants
19. The State of Colorado Department of Corrections (CDOC) is constitutionallyobligated to provide healthcare for incarcerated individuals. To do so, the
CDOC formed the Division of Clinical Services (the Division). The Division
provides comprehensive medical, dental, mental health, and substance abuse
treatment services to eligible offenders. Mr. Self is an eligible offender.
20. According to the Clinical Services Manual, the Divisions objective is to
maintain a managed care delivery system to provide quality, appropriate, and
cost-effective healthcare through the use of its primary care assets, in
conjunction with a complimentary provider network of specialists and
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institutions.
21. Clinical Services hires doctors, nurse practitioners, physicians assistants, and
other medical professionals to staff prisons and provide primary healthcare.
22. According to the Colorado Department of Corrections Access to Services And
Schedule of Covered Services, 2010 edition:
The intent of the health care services provided by Clinical Services is t o
provide medically necessary treatment for conditions that, if not
treated, are reasonably expected to cause deterioration prior to p a r o l e
or release and may result in permanent mental impairment or p e r m a ne n t
loss of activities of daily living (ADL) functions.
23. Clinical Services employees hired by the state to treat Mr. Kemp and other
offenders within SCF are collectively referred to in this complaint as "Clinical
Services Defendants . For purposes of this complaint, those individuals
include Defendants Smith, Fortunato, Lovell, Chamjock, and Dowis.
II. Physician Health Partners/Correctional Health Partners.
24. Clinical Services employees treat most inmate ailments within individual
facilities like SCF. More serious medical issues, requiring specialized care, are
referred to Physician Health Partners (PHP), a private managed care company.
25. Pursuant to a 30 million-dollar contract with CDOC, PHP supplies all
necessary health care services beyond the scope of CDOC primary care
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providers, through its wholly-owned subsidiary Correctional Health Partners
(CHP).
26. The services for which PHP/CHP is responsible include specialty care,
diagnostics, imaging, and hospital care, as well as out-patient services. Mr.
Selfs wrist condition, the nature of which is more fully described, required
out-patient services that PHP/CHP was obligated to approve and provide.
27. In the event primary care providers within a facility believe an offender
requires the services of an outside specialist, Division policy provides that the
provider submit requests for external services on behalf of offenders to the
Divisions "Utilization Committee".
28. The Utilization Committee reviews requests for external services, allegedly
using "nationally accepted practice guidelines" prior to final authorization by
PHP/CHP. If deemed appropriate, claims for specialty services are forwardedto PHP/CHP.
29. All requests for specialized care are subject to pre-authorization by physicians
on PHPs payroll. One of those physicians is Defendant Krebs.
30. In addition to Defendant Krebs responsibility to authorize expenditures for
specialized medical treatment of prisoners, he is also the Chairman for the
Board of Managers of PHP. Defendant Krebs directly and indirectly benefits
financially by denying specialized care to inmates like Mr. Self.
31. If PHP/CHP authorizes outside services, it then arranges for appropriate levels
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of care with qualified specialty care providers. PHP/CHP assigns requests for
specialty medical services to a Care Management team. That team is made up
of, in part, Defendants Kreb, Schmedeke, and Lockman.
32. According to the Correctional Health Partners website, the role of the Care
Management team is to ensure accurate and timely offender healthcare, and to
determine if hospital treatment is necessary. The Care Management team
reviews evidence of quality of care concerns and variation in inpatient
utilization (such as delays in care).
33. A PHP/CHP Care Manager helps to coordinate care while the patient is under
the care of a specialist by:
a. Monitoring patient daily progress;
b. Communicating with the hospital physician to assure the patient has
the right care at the right time;c. Facilitating authorizations for the services needed when leaving the
hospital; and
d. Coordinating the discharge plans between the hospital and the infirmary
staff to make sure the offenders return is safe and follow-up care is
effective.
34. PHP/CHP pledges to make sure offenders are receiving the appropriate care, at
the appropriate time, and in the appropriate setting.
35. PHP/CHP collaborates with the CDOC through CDOCs Chief Medical Officer
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and the Division to create policy related to provision of specialty care. The
CDOC and PHP/CHP Defendants share joint responsibility for establishing
policies with respect to the delivery of at least some of the healthcare needs of
incarcerated individuals.
36. PHP/CHP and Clinical Services Defendants are obligated to create and enforce
policies that require timely response to serious medical needs, timely diagnoses
of medical conditions necessitating specialized care, and arrange for timely
access to specialists.
37. PHP/CHP and Clinical Services Defendants are jointly obligated to create
policies and procedures that make certain inmates receive safe, timely, and
effective medical treatment. Those obligations also include creating policies,
procedures, and customs to provide prescribed medications.
38. During the period of time described in this complaint, the PHP/CHPDefendants Krebs, Dorsey, and Schmedeke, as well as all Clinical Services
Defendants were responsible for providing timely care to avoid excessive risks
of permanent harm to Mr. Selfs health.
39. PHP/CHP Defendants and Clinical Services Defendants knew of significant
delays in the authorization and the delivery of necessary, specialized treatment
for Mr. Selfs serious wrist injury but failed to remedy the problem. As a
result , as more fully discussed below, Mr. Self has suffered permanent
disfigurement.
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FACTUAL BASIS IN SUPPORT OF CLAIMS
a. Mr. Self Exercised A Constitutionally Protected Right to Be Free FromMedical Treatment
40. Mr. Self is a prisoner at Sterling Correctional Facility (SCF) in Sterling
Colorado. He is serving a life sentence with no parole eligibility. The Colorado
Department of Corrections (CDOC) operates Sterling Correctional Facility.
41.Mr. Self suffers from bipolar disorder, a debilitating mental illness for which
there is no cure.
42.On 22 January 2009, Mr. Self executed a valid CPR Directive (Directive or DNR) on a form SCF medical staff provided him.
43.The operative language of the Directive ordered emergency medical services
personnel, health care providers, and other persons to withhold cardiopulmonary
resuscitation in the event that [Mr. Selfs] heart or breathing stops or
malfunctions.
44.Defendant Fortunato, Mr. Selfs treating physician fully informed Mr. Self of
the meaning and implications of the CPR Directive before Mr. Self signed it.
45.Defendants Fortunato, Chamjock, and Lovell promised Mr. Self that, going
forward, emergency responders would not initiate cardiopulmonary resuscitation
on Mr. Self under any circumstances. Defendants told Mr. Self they would
place a copy of the Directive in his medical chart. The same Defendants did
nothing to make other health professionals aware that Mr. Self had signed a
valid CPR Directive. By doing so, Defendants enforced a CDOC policy and
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custom of not allowing inmates who sign a DNR to wear a unique bracelet,
necklace, or demonstrate any other sign that would alert emergency responders
to the existence of an inmates advanced medical directive. That policy and
custom constitutes reckless disregard for the serious medical wishes of Mr. Self
and other similarly situated inmates.
b. Defendants Were Deliberately Indifferent to Mr. Selfs Right to RefuseMedical Treatment
46.On the evening of 4 April 2009, correctional officers found Mr. Self
unresponsive and unconscious in his cell.
47.According to medical records, correctional officers and other prison employees
tried unsuccessfully to revive Mr. Self, ignoring his DNR.
48.Defendants Schellenger and Hensman an Emergency Medical Technician-
Paramedic (EMT-P) and EMT, respectively, arrived at SCF ninety minutes after
correctional officers first found Mr. Self unresponsive.
49.After spending several minutes evaluating Mr. Selfs condition, Defendants
Schellenger and Hensman proceeded to institute life-saving measures through
intubation, a form of cardiopulmonary resuscitation. By doing so, Defendants
Schellenger and Hensman wrongfully, and negligently, ignored the terms of Mr.
Selfs advanced medical directive, which included an order to withhold
cardiopulmonary resuscitation.
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50.Mr. Selfs wrongful intubation resulted from either the SCF Defendants failure
to make Mr. Selfs Directive available to prison personnel; or the Defendant-
EMTs negligence in failing to inquire about whether Mr. Self had a valid
advanced directive in place order in place before they initiated procedures to
help him breath. The Defendant-EMTs also negligently failed to ask prison staff
for access to Mr. Selfs prison medical chart.
51.After stabilizing Mr. Selfs breathing, Defendant-EMTs transported Mr. Self to
Sterling Medical Center. Hospital records note that, upon admission, Mr. Self
was intubated despite presence of DNR.
52.Mr. Self was later extubated at Denver Health and transported back to SCF. He
experienced physical pain and discomfort while going through the extubation
process
c. Defendants Failed to Enact Policies and Procedures to Protect Mr. SelfsConstitutionally-Protected Right to Refuse Medical Treatment During anEmergency
53.At the time Mr. Self signed his DNR, Defendants Physician Health Partners and
other CDOC Defendants had a policy of refusing to provide a simple bracelet,
necklace, or other means of warning emergency responders that Mr. Self and
others had signed advanced medical directives.
54.Despite providing prisoners with the opportunity to execute CPR/DNR
directives, Defendants failed to develop or institute policies to protect the
inmate-patients rights under those directives such that if an emergency were to
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occur, an inmate-patients constitutional right to refuse treatment could be
honored.
55. Defendants Smith, Fortunato, Milyard, Zavaras and others failed to institute
policies, regulations, or procedures to train CDOC personnel how to determine
an inmates DNR-status in the event of an emergency.
56. Defendants never made policies, rules, or regulations to make CPR or DNR
directives readily available to emergency responders.
57. The CDOC Defendants and PHP/CHP Defendants failed to adequately staff the
facility with qualified healthcare professionals. At certain hours, appropriate
personnel were unavailable to access or review Mr. Selfs medical chart; or
provide the chart to EMTs.
58. Prison guards were inadequately trained or prepared, in reckless disregard to
the health and welfare of Mr. Self, to check on the DNR status of Mr. Self andother prisoners before initiating life-saving medical interventions; and were not
otherwise notified of Mr. Selfs DNR status at the time of the incident.
59. On 19 April 2009 Mr. Self, horrified and shocked that he had been resuscitated
against his express consent, filed a grievance against the prison.
60. Nurse Greg Dyson responded to Mr. Selfs grievance by letter. In part, Dyson
wrote: Please understand Emergency Medical Technicians are trained to
respond to unresponsive persons in a certain way and will do so no matter
what the situation . Nurse Dyson continued, Since [EMTs and Officers] do
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not have access to your records they would not realize that you had a CPR
Directive signed and in your chart. (emphasis supplied).
61. Nurse Dysons response to Mr. Selfs grievance constitutes a plain admission
of Defendants reckless disregard for Mr. Selfs serious and constitutionally
protected medical decision to be free from unwanted medical intervention by
prison authorities acting under the color of state law.
62. To date, Defendants have failed to provide Mr. Self a bracelet, necklace, or
documentation to alert future emergency care providers to Mr. Selfs DNR
status.
d. Wrist Injury
63. This action also seeks to redress a separate violation of Mr. Selfs Eighth
Amendment Constitutional right to be free from cruel and unusual punishment.
This claim relates to Defendants deliberate failure to arrange necessary, doctor-recommended surgery for Mr. Selfs fractured wrist, and Defendants failure to
institute follow-up treatment for the wrist ordered by Mr. Selfs physician
specialist.
64. On 5 October 2009, Mr. Self severely injured his wrist when he fell from his
top bunk. SCF officers brought Mr. Self to Sterling Regional Medical Center
(Sterling Regional) for treatment.
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65. A doctor at Sterling Regional, Darrel Fenton, examined Mr. Selfs wrist. Dr.
Fenton found Mr. Self had sustained a complex, dorsally angulated fracture, and
determined the break would require surgery.
66. A different surgeon, Dr. Lambert, performed the recommended wrist surgery on
8 October 2009. After the surgery, Mr. Self returned to SCF where he
immediately noticed his hand and wrist appeared deformed, noticeably out of
alignment with the rest of his arm. Mr. Self also suffered from excruciating post-
surgical pain.
67. During a 4 November 2009 follow-up visit, Dr. Fenton reexamined the
surgically repaired wrist. Dr. Fenton essentially told Mr. Self that Dr. Lambert
had improperly performed the wrist surgery.
68. Dr. Fenton explained he would likely have to re-break Mr. Selfs wrist and then
surgically repair the wrist for it to be normal again. Dr. Fenton placed Mr. Selfswrist in a cockup splint and ordered a course of treatment to include volar
flexion, not dorsal flexion.
69. In a letter to Clinical Services Defendants, Dr. Fenton explained his concerns
with respect to the misalignment of Mr. Selfs wrist.
70. Dr. Fenton told prison officials he wanted to see Mr. Self for a second follow-
up in one month for an x-ray. Finally, Dr. Fenton noted that he would need to
perform a distal radial osteotomy--a corrective surgery--if Mr. Self had not
made satisfactory progress during that month.
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71. Both PHP Defendants and Clinical Services Defendants knew of Dr. Fentons
recommended treatment and follow-up care plans and responsible for making
certain Dr. Fentons treatment plans were timely instituted and adhered to.
72.Clinical Services Defendants never instituted the treatment plan Dr. Fenton
ordered for Mr. Self despite Mr. Selfs documented complaints of severe daily
pain and daily discomfort.
73. More troubling, Defendants failed to return Mr. Self as ordered by Dr. Fenton
within thirty days of his 4 November 2009 appointment. Defendants ignored
Mr. Selfs regular pleas to be returned to Dr. Fenton for further evaluation and
corrective surgery of his deformed wrist.
74. Defendants also ignored Mr. Selfs request for pain medication to treat his
throbbing wrist, which made it difficult for him to sleep and work. Mr. Selfs
wrist appeared deformed, and he worried it would remain permanentlydisfigured if not addressed by timely corrective surgery, as ordered by Dr.
Fenton.
75.Defendants deliberate indifference to treatment of Mr. Selfs wrist injury--a
serious medical need by any measure--included denying him access to
corrective surgery for over eight months. During that time, all Clinical Services
Defendants and PHP/CHP defendants knew his deformed wrist required but
remained untreated. It was only after Mr. Selfs counsel contacted Dr. Fenton
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directly that Defendants returned Mr. Self to Sterling Regional for an
appointment on 11 June 2010.
76. On that day, Dr. Lambert analyzed Mr. Selfs wrist, and renewed his previous
prognosis that surgery was necessary to correct the dorsal displacement, which
would stop a lot of [Mr. Selfs] pain. He further noted that the surgery could
be done on an outpatient basis as soon as the prison lets us schedule it.
77. At the conclusion of the 11 June 2010 appointment between Dr. Fenton and Mr.
Self, Dr. Fenton gave Mr. Self a prescription for Darvocet, a pain medication.
When Mr. Self was returned to SCF, on-site Nurse Schadegg confirmed Mr.
Selfs prescription for Darvocet.
78.After a series of days passed without Mr. Self receiving his prescribed
medication, an on-site physicians assistant determined unilaterally that Mr. Self
did not need the prescribed medication.79.Refusing to administer Mr. Selfs medication, one that his physician-specialist
ordered after complex orthopedic surgery of the wrist, was consistent with the
policy established by supervising Defendants, which arbitrarily precludes
administration of certain medications, regardless of the medical reasons for
which those medications are prescribed.
80.Additionally, the existence of Mr. Selfs prescription from Dr. Fenton for
Darvocet disappeared.
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81. Almost three months after the 11 June 2010 appointment, Mr. Self was finally
transported to Sterling Regional Medical Center for corrective surgery to his
wrist. Even after the second surgery, however, Mr. Selfs wrist remains grossly
deformed and is now permanently disfigured.
82.Defendants have told Mr. Self nothing more could be done to improve the
condition of his wrist. Defendant Krebs and other PHP Defendants have refused
to approve further follow-up visits despite knowledge of Mr. Selfs serious
medical condition and his need for further evaluation.
83. Mr. Selfs job opportunities are significantly limited as a result of his wrist
injury, as are his other daily activities and recreational opportunities.
84.Mr. Self has difficulty reaching his top bunk as a result of his injuries.
Defendants have denied his repeated requests to be permanently assigned a
bottom bunk.85. Mr. Selfs suffering could have been avoided had Defendants simply called to
schedule the follow-up visit Dr. Fenton ordered back in November of 2009.
Instead, Defendants deliberate indifference to Mr. Selfs serious medical need
caused, and continues to cause, worry, stress, anxiety and other emotional
distress.
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CLAIM ONE42 U.S.C. 1983-Violation of Plaintiffs Eighth Amendment Constitutional Right
to be Free from Cruel and Unusual Punishment
86. All Defendants violated Mr. Selfs constitutionally protected Eighth
Amendment right to be free from cruel and unusual punishment by refusing to
honor Mr. Selfs fundamental right to refuse cardiopulmonary resuscitation.
87. 42. U.S.C. 1983 provides a remedy for constitutional violations where the
violations are committed under color of state law.
88. The Defendants, each while acting under the color of state law, subjected Mr.
Self, or caused Mr. Self to be subjected, to the deprivation of his Eighth
Amendment rights secured under the Constitution.
89. The Eighth Amendment to the Constitution forbids cruel and unusual
punishment. Defendants violated Mr. Selfs constitutionally protected rights
by recklessly disregarding Mr. Selfs right to refuse cardiopulmonary
resuscitation, a form of medical treatment. Infringing on a prisoners right to
refuse medical treatment constitutes cruel and unusual punishment.
90. Defendants also violated Mr. Selfs Eighth Amendment rights by their
deliberate indifference to his serious medical needs; to whit, ignoring Mr.
Selfs explicit intention to be free of certain medical interventions, despite
being expressly aware of Mr. Selfs intentions.
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91. Supervising Defendants Milyard, Smith, Zavaras, and Fortunato recklessly
disregarded Mr. Selfs serious medical needs by maintaining gross deficiencies
in staffing, and training; and by their failure to enact procedures to ensure that
Mr. Selfs right to refuse medical treatment in the event of an emergency
would be honored.
92. Defendants failure to implement a uniform policy or procedure to alert
emergency responders of Mr. Selfs DNR status violated Mr. Selfs clearly
established constitutional right under the Eighth Amendment to refuse certain
types of medical intervention.
93. Defendants deliberate indifference to Mr. Selfs serious medical needs, and
reckless disregard for his health and safety caused Mr. Self great physical pain,
suffering, emotional angst, and anxiety.
94. By deliberately prolonging Mr. Selfs life after he expressly exercised his rightto be free from medical treatment, Defendants caused Mr. Self physical,
emotional, and economic harm for which he is entitled to redress under 42
U.S.C. 1983.
95. Each of the individually named Defendants was personally involved in the
violation of Mr. Selfs constitutional rights in that each of them: (1) directly
participated in the infraction; (2) failed to remedy the wrong after learning of
the violation through a report or appeal; (3) created a policy or custom under
which unconstitutional and unlawful practices occurred; (4) allowed such a
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policy or custom to continue; and/or (5) was deliberately and recklessly
indifferent in managing subordinates who caused the unlawful conditions and
events.
96. Mr. Self refers Defendants to the Factual Allegations portion of this Complaint
which contain the relevant factual allegations to support this claim. This
paragraph is expressly provided, in part, to foreclose Defendants from
mischaracterizing this claim as consisting of merely formulaic recitation of
generic civil rights claims.
CLAIM TWO42 U.S.C. 1983-Violation of Plaintiffs Eighth Amendment Right to be Free of
Cruel and Unusual Punishment
97. This claim is brought against all Clinical Services Defendants & PHP/CHP
Defendants for their deliberate indifference to serious medical needs associated
with Mr. Selfs severely broken wrist.
98. 42. U.S.C. 1983 provides a remedy for constitutional violations where the
violations are committed under color of state law.
99. The Defendants, each while acting under the color of state law, subjected Mr.
Self, or caused Mr. Self to be subjected, to the deprivation of his Eighth
Amendment rights secured under the Constitution by the conduct described
within this complaint.
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100.The Defendants refusal to properly treat Mr. Selfs serious medical condition
(severely broken wrist), provide pain medication, institute physician-specialist
recommended treatment, or schedule him for a timely follow-up appointment
with a specialist, constitutes cruel and unusual punishment.
101.The serious nature of Mr. Selfs medical needs is documented in his medical
records from Sterling Regional Medical Center and SCF, all of which describe
a complex fracture of his wrist. The fracture was twice surgically repaired,
resulting in severe pain, and permanent deformity.
102.As a result of Defendants failure to provide Mr. Self with proper medical
treatment, Mr. Self has suffered physical injuries, pain and suffering,
inconvenience, emotional distress, impairment of quality of life, past and future
economic losses, and reasonable and necessary medical, hospital and other
expenses.103.Each of the individually named Defendants was personally involved in the
violation of Mr. Selfs constitutional rights in that each of them: (1) directly
participated in the infraction; (2) failed to remedy the wrong after learning of
the violation through a report or appeal; (3) created a policy or custom under
which unconstitutional and unlawful practices occurred; (4) allowed such a
policy or custom to continue; and/or (5) was deliberately and recklessly
indifferent in managing subordinates who caused the unlawful conditions and
events.
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104. Mr. Self refers Defendants to the Factual Allegations portion of this Complaint
which contain the relevant factual allegations to support this claim. This
paragraph is expressly provided, in part, to foreclose Defendants from
mischaracterizing this claim as consisting of merely formulaic recitation of
generic civil rights claims.
CLAIM THREE42 U.S.C. 1983-Violation of Plaintiffs Fourteenth Amendment Due Process
Rights
105. 42. U.S.C. 1983 provides a remedy for constitutional violations where the
violations are committed under color of state law.
106. DOC Defendants, including those working for Clinical Services; and LifeCare
Defendants, acted under the color of state law at the time they violated Mr.
Selfs Fourteenth Amendment Due Process rights.
107.Defendant Schellenger and Hensman violated Mr. Selfs constitutionally
protected liberty interest, under the Due Process Clause of the Fourteenth
Amendment, by deliberately disregarding Mr. Selfs wish under his advanced
medical directive to refuse life-saving treatment, despite specific knowledge of
that directive.
108. Clinical Services Defendants similarly violated Mr. Selfs constitutionally
protected liberty interest, under the Due Process Clause of the Fourteenth
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Amendment, by refusing to ensure that Mr. Selfs advanced medical directive
would be accessible in case of an emergency.
109.Supervising Defendants Milyard, Zavaras, and Smith violated Mr. Selfs
constitutionally protected liberty interest, under the Due Process Clause of the
Fourteenth Amendment, by failing to enact policies and procedures that would
supply Mr. Self and other prisoners some type of bracelet, wrist band, sticker
on a wrist band, or any other type of mechanism to alert emergency medical
personnel or prison officials to an inmates DNR status.
110. Supervising Defendants Milyard, Zavaras, and Smith violated Mr. Selfs
constitutionally protected liberty interest, under the Due Process Clause of the
Fourteenth Amendment, by allowing prison policy and custom of deliberately
disregarding an inmates advanced medical directives when an inmate requires
life-sustaining medical treatment.111.Each of the Defendants actions violated Mr. Selfs rights under the Fourteenth
Amendment to maintain his bodily integrity in the event medical intervention
may become necessary.
112.Mr. Self has suffered physical injuries, pain and suffering, inconvenience,
emotional distress, impairment of quality of life, past and future economic
losses, and reasonable and necessary medical, hospital and other expenses.
113. Mr. Self refers Defendants to the Factual Allegations portion of this Complaint
which contain the relevant factual allegations to support this claim. This
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(Defendants Hensman, Schellenger, and Lifecare)
118.Defendants Hensman and Schellenger had a duty to Mr. Self to determine
whether Mr. Self had a valid DNR in place before they provided life-saving
treatment.
119.Defendants breached their duty to Mr. Self a foreseeable victim of their
negligent conduct.
120.Defendants actions caused Mr. Self to suffer physical injuries, pain and
suffering, inconvenience, emotional distress, impairment of quality of life, past
and future economic losses, and reasonable and necessary medical, hospital and
other expenses.
121.Mr. Self refers Defendants to the Factual Allegations portion of this Complaint
which contain the relevant factual allegations to support this claim. This
paragraph is expressly provided, in part, to foreclose Defendants from
mischaracterizing this claim as consisting of merely formulaic recitation of
generic negligence claim.
CLAIM SIXBATTERY
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(Defendants Hensman, Schellenger, and Lifecare)
122.Defendants intentionally touched Mr. Self, without his express or implied
consent while he was unconscious.
123.By battering Mr. Self Defendants caused him to suffer physical injuries, pain
and suffering, inconvenience, emotional distress, impairment of quality of life,
past and future economic losses, and reasonable and necessary medical, hospital
and other expenses.
124.Mr. Self refers Defendants to the Factual Allegations portion of this Complaint
which contain the relevant factual allegations to support this claim. This
paragraph is expressly provided, in part, to foreclose Defendants from
mischaracterizing this claim as consisting of merely formulaic recitation of
generic negligence claim.
CLAIM SEVENINTENTIONAL INFLICTION OF EMOTIONAL DISTRESS(Defendants Hensman and Schellenger)
125. Defendants, as described in the Factual Allegations section of this amended
complaint, engaged in extreme and outrageous conduct by deliberately
disregarding Mr. Selfs advanced medical directive by intubating him against his
express wishes.
126.Defendants engaged in extreme and outrageous conduct recklessly, causing
Mr. Self emotional distress.
CLAIM EIGHT
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS(Defendants Hensman, Schellenger, and Lifecare)
127.Defendants engaged in conduct that subjected Mr. Self to an unreasonable risk
of bodily harm as a result of their negligence.
128.Defendants negligent conduct caused Mr. Self to suffer emotional distress.
129.Mr. Selfs distress was of such a nature as might result in illness or bodily
harm.
PRAYER FOR RELIEF
WHEREFORE , Plaintiff respectfully requests:
A. A declaration that Defendants deprived Mr. Self of his right to be free from
cruel and unusual punishment in violation and contravention of the Eighth
Amendment to the United States Constitution;
B. A permanent injunction ordering the appropriate Defendants to provide Mr. Self
or allow him to personally obtain; a bracelet, sticker, necklace, or other item one
might wear on his person, that will alert medical professionals and prison
officials of his, and other inmates, DNR status;
C. An award of attorneys fees and costs of this action, including expert witness
fees, on all claims allowed by law;
D. An award of punitive damages for violation of the Eighth Amendment of the
United States Constitution, 42. U.S.C. 1983;
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E. An award of all damages allowed by law, including compensatory damages for
violations of the Eighth Amendment to the United States Constitution, 42
U.S.C. 1983; and that this Court award pre-judgment and post-judgment
interest at the lawful rate;
F. A permanent injunction ordering the appropriate Defendants to give Mr. Self a
bottom bunk; and
G. Any additional or alternative relief as may be just, proper, and equitable.
JURY DEMAND
Plaintiff requests that a jury hear all claims so triable.
Dated this 21st day of July, 2011.
Respectfully submitted,
Daniel Self, By His Attorney/s/ Brett D. Lampiasi, #39317_________________________
Attorney Brett LampiasiP.O. Box 347Hatfield, MA 01038
mailto:[email protected]:[email protected]