james neisler complaint

8/11/2019 James Neisler Complaint

http://slidepdf.com/reader/full/james-neisler-complaint 1/25

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-CV-1250

JAMES NEISLER

Plaintiff,

v.

CORRECTIONAL HEALTHCARE COMPANIES, INC. d/b/a “CORRECTIONAL

HEALTHCARE MANAGEMENT, INC.”;CHC COMPANIES, INC.;

RON WAITS, individually;

Defendants. ______________________________________________________________________________

CIVIL RIGHTS COMPLAINT WITH REQUEST FOR TRIAL BY JURY AND

CERTIFICATE OF REVIEW ______________________________________________________________________________

Plaintiff James Neisler, by and through his attorneys, HOLLAND, HOLLAND EDWARDS &

GROSSMAN, P.C., complains against Defendants and requests a trial by jury as follows:

I. INTRODUCTION

1. This is an action brought by James Neisler, a 47-year-old man, to vindicate

serious deprivations of his constitutional and state law rights.

2. Plaintiff Neisler was treated with reckless deliberate indifference and negligence

by medical personnel at the Arapahoe County Jail and Detention Facility (hereinafter “Arapahoe

Jail”).

3. Mr. Neisler, who has diabetes and suffers from peripheral neuropathy, was

required to wear ill-fitting work boots and work on his feet past his work restrictions, causing a

wound to his foot. In a willfully and wantonly malicious manner, this wound was then allowed

Case 1:14-cv-01250 Document 1 Filed 05/01/14 USDC Colorado of 22



2

to open and become increasingly infected, swollen and painful until it finally turned black,

requiring amputations of all of his toes on his right foot.

4. Ron Waits, NP and CHC Defendants were deliberately indifferent and negligent

to Mr. Neisler’s serious medical needs, evidenced by their multiple conscious refusals to act and

utter abandonment of this man in medical crisis for a month, including but not limited to; not

following their own medically ordered instructions regarding the special diabetic needs of this

inmate; not developing any care plan for this chronic care and special needs patient; recklessly

failing to develop a wound care plan for his known serious foot wound; persisting in requiring

Mr. Neisler to wear the ill fitting boots despite known open sores; not assessing and treating his

known serious foot wound; their deliberately indifferent refusal to let him see a doctor in a

timely fashion; and their decision to not secure necessary medical attention or timely transfer

him out of the facility, as was needed and required.

5. Mr. Neisler begged for help for over a month before he finally was transferred to

the Emergency Room. By then it was too late.

6. As a result of these deliberately indifferent and negligent actions, Mr. Neisler has

lost all of the toes on his right foot.

7. The full extent of his disabilities and damages are not yet known. Mr. Neisler has been

told that he may have continuing bone infection as a result of the foregoing deliberate

indifference and negligence and that he may require further amputation.

8. He also suffered significant and lasting emotional distress and ongoing physical

disabilities.

II. JURISDICTION, VENUE, AND NOTICE




3

9. 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.

10. This case is instituted in the United States District Court for the District of

Colorado pursuant to 28 U.S.C. §1391 as the judicial district in which all relevant events and

omissions occurred and in which Defendants maintain offices and/or reside.

11. Supplemental pendent jurisdiction is based on 28 U.S.C. §1367 because the

violations of federal law alleged are substantial and the pendent causes of action derive from a

common nucleus of operative facts.

12. The state law claims in this matter are brought against private corporations and

therefore no notice of claims was required under the Colorado Governmental Immunity Act.

However, such notice was timely given.

III. PARTIES

11. Plaintiff James Neisler is a resident of the State of Colorado and a citizen of the

United States of America.

12. Plaintiff resides in Littleton, Colorado.

13. Defendant Correctional Healthcare Companies, Inc., d/b/a Correctional

Healthcare Management, Inc., is a private Delaware corporation with its principal street address

and registered agent of service located at 6200 S. Syracuse Way, Suite 440, Greenwood Village,

CO 80111.

14. Defendant CHC Companies, Inc. is a Delaware corporation with its principal




4

street address and registered agent of service located at 6200 S. Syracuse Way, Suite 440,

Greenwood Village, CO 80111.

15. Defendant Correctional Healthcare Companies, Inc., d/b/a Correctional

Healthcare Management, Inc., and Defendant CHC Companies, Inc. are herein after collectively

referred to as the “CHC Defendants.”

16. CHC Defendants are sued for negligence by their staff, negligent supervision,

negligent training of their staff, for failing to ensure the provision of appropriate care in the

treatment of Mr. Neisler and for the acts and omissions of their agents and/or employees, and for

the herein described acts by their involved employees, agents, staff, and affiliates, all while

acting within the scope and course of their employment.

17. CHC Defendants are private corporations, not entitled to any immunity under the

Colorado Governmental Immunity Act.

18. CHC Defendants would also be proper entities to be sued under 42 U.S.C. § 1983

for deliberately indifferent policies, practices, habits, customs, procedures, training and

supervision of staff, including of individual Defendant, with respect to the provision of medical

care and treatment for inmates with wound infections and serious emergency medical needs.

Plaintiff gives notice that he anticipates amending his complaint following discovery to add a

claim under 42 U.S.C. § 1983 for entity liability against these companies.

19. Plaintiff also gives notice that he anticipates amending his complaint following

discovery to add a claim against Arapahoe County, through its Board of County Commissioners

and Sheriff, for its own deliberate indifference and that of its delegated final decision makers and

related to its non delegable duty to provide constitutionally sufficient medical care.




5

20. On information and belief, Defendant Ron Waits, NP is a resident of Colorado

and a citizen of the United States of America, and an employee of CHC Defendants.

IV. STATEMENT OF FACTS

21. Mr. Neisler was incarcerated around June 17, 2013 in Arapahoe Jail.

22. Mr. Neisler is a diabetic. He has kept his diabetes under control through exercise,

athletic activity, and staying healthy.

23. As a result of his diabetes, however, he has neuropathy in his feet and cannot feel

his toes well.

24. Before entering jail, Plaintiff had never been required to undergo any amputations

and carefully monitored his diabetes.

25. He had no sores or ulcers upon entering the jail.

26. Nurse Practitioner Ron Waits saw Mr. Neisler on about July 8, 2013, for issues

relating to his diabetes.

27. At that time, Mr. Neisler expressed concerns about the fact that his ankles were

swollen. He stated that he was afraid to climb to the second bunk in his cell because he was

unable to feel the steel wrungs due to his peripheral neuropathy.

28. NP Waits ordered that Mr. Neisler be given a bottom bunk.

29. NP Waits also ordered that Mr. Neisler’s standing requirements be restricted to no

more than two hours at a time.

30. Contrary to these well-known and documented medically ordered work

restrictions, on or about July 20, 2013, Mr. Neisler was required to work in the warehouse,

standing and wear ill-fitting steel toed boots for over four hours, lifting 50 pounds sacks of food.




6

31. Proper footwear is very important and medically necessary to ulcer prevention for

diabetic patients like Mr. Neisler.

32. Wounds can develop in a short time from undue pressure on the feet of diabetics.

33. Around the two hour mark of working, Mr. Neisler informed the crew leader that

he was not supposed to stand more than two hours at a time due to his diabetes and asked to be

relieved. He was nevertheless required to work for two more hours.

34. At the end of this shift, Mr. Neisler had a blister on his right toe.

35. Knowing that a blister on the foot of a diabetic constitutes a medical emergency,

Mr. Neisler immediatley sought medical attention.

36. On July 20, 2013, Mr. Neisler sent a KITE, stating that being required to work

against restrictions caused him to develop a blister on his right toe, reporting: “my right foot is

severely swollen and right toe is double its normal size.”

37. In this July 20, 2013 KITE, Mr. Neisler requested “immediate medical attention.”

38. At 7:15 am on July 21, 2013, V. Ginter, LPN notes that, “1 day ago” Mr.

Neisler’s “boot rubbed a blister on his big toe and now it is open.” This area is measured at

“2cm by 1cm” and described as “red, tender and open.”

39. LPN Ginter also noted on July 21 that the protocol for a skin infection should

begin.

40. Open sores on a foot are a well-known medical emergency for diabetic patients.

Without immediate, consistent, effective, continuing and timely medical attention, there is a high

risk of infection and amputation.

41. On July 23, 2013, Mr. Neisler sent another KITE stating “I would like to see a




7

medical doctor about extreme swelling and blisters on my right big toe.”

42. On July 23, 2013, the next care note is made, stating “[w]ound care done to L

[sic] great toe. No change in wound status.”

43. On July 25, 2013, NP Waits charted that Mr. Neisler developed a sore due to the

inappropriate boots he was required to wear, and charted in objective findings that his sore was

“open” “red”, “swollen,” and “painful.”

44. NP Waits charted Great big toe cellulitis.

45. It is well known by nurse practitioners that a diabetic with a foot wound like this

must be off loaded and wear diabetic shoes. To the extent antibiotics are given, the wound must

be cultured.

46. It is further well known among nurse practitioners that failure to do so is

associated with a high risk of amputation.

47. NP Waits did nothing meaningful in response to this known serious medical need

of an open, red, and swollen wound on the foot of a diabetic.

48. As a result, Plaintiff’s sore grew worse.

49. Mr. Neisler requested to see a doctor and receive proper wound care on numerous

occasions during the months of July and August.

50. Mr. Neisler was told he would see the “MD” but instead saw NP Waits, who is

routinely referred to as the doctor despite not having a medical degree.

51. Instead of helping this man in a medical crisis, Arapahoe and CHC staff

abandoned him, refusing to provide any effective wound care or obtain medical treatment.

52. On July 30, 2013, Mr. Neisler sent another KITE about his toe and foot being




8

“very swollen and bleeding from 2 areas where blisters have torn open.” He stated, “I’m very

scared as I am a diabetic and I would like to see the doctor.”

53. On July 31, 2013, Mr. Neisler is again described as having “wound care”

perfomed and LPN Elaine Washam reports that he was “[p]laced on line to see Ron NP.”

54. Despite the known presence of wounds, and the importance of preventing them

from reaching the bone and causing osteomyelitis, staff never made an appropriate wound care

plan to treat the ulcers which started on July 20, 2013.

55. Mr. Neisler again saw NP Waits on August 1, 2013. NP Waits charted that Mr.

Neisler had a 2.0 blood blister on plantar surface, Great toe cellulitis, and swelling.

56. During this visit, NP Waits ordered an X-ray of Mr. Neisler’s big toe for “next

week.”

57. On August 7, 2013, Mr. Neisler wrote another KITE, requesting that the ordered

X-ray take place.

58. On August 11, 2013, Mr. Neisler stated in another KITE that: “I have now been

waiting for over 11 days for an xray on my right foot which the doctor requested for me. This is

my 2nd

follow up as to why no xray yet. . . my foot is still very swollen.”

59. On August 12, 2013, still not having an Xray or proper medical attention, Mr.

Neisler sent another KITE, stating “my right big toe is bleeding, oozing and twice the size of

my left big toe. My right foot and ankle are severely swollen … I am diabetic and very

concerned about losing my big toe.”

60. Again, no medical intervention or medical care was sought or provided. LPN’s

responded to these KITES that an X-ray had been scheduled.




9

61. Plaintiff’s repeated reasonable requests for proper timely medical care were

instead recklessly denied.

62. After charting their conscious awareness of this medical emergency, their

awareness that his sores were caused by the ill-fitting jail shoes, and Mr. Neisler’s repeated pleas

and requests for medical attention for these sores, CHC staff refused to take the steps known to

be necessary to prevent the worsening of these sores or provide any timely treatment.

63. One of the most elemental treatment requirements for a diabetic with a foot

wound is off weighting. Mr. Waits’ medical orders in this regard required only that Mr. Neisler

not stand for more than two hours, even after this ulcer developed. Mr. Waits did not order that

he have a job without the boots or that he be offloaded.

64. Thus, even after this dangerous ulcer was known to have occurred and growing

worse, Mr. Neisler kept working in job positions that required standing in boots.

65. It was negligent and reckless for NP Waits not to order that Mr. Neisler had a

work restriction that he could not work in jobs requiring boots after the blister appeared, and to

not order that he be off weighted.

66. As a predictable result, Mr. Neisler developed additional ulcers on his other toes.

67. Mr. Neisler objected that he had open sores on his foot, telling medical and jail

staff that he clearly could not wear the boots.

68. On August 13, 2013, almost three weeks after this blister was first brought to

medical attention, an LPN charted: “Pt developing another blister on his 3rd toe. Pt states from

boots. I called crew leader and asked he be placed in job where he will not need to wear boots.”

69. In response to this Order, Mr. Neisler was assigned to the bakery, a job that




10

required standing for more than 2 hours. He sent another KITE saying “why in the world would

I be assigned back to the kitchen when my foot is significantly worse now than in July. It is now

bleeding on 2 different toes and I am getting it xrayed tomorrow? The xray was ordered 2 weeks

ago when I last saw the doctor.”

70. On August 14, 2013, Mr. Neisler sent another KITE, demonstrating his mounting

desperation for help, stating: “my toe is literally rotting now and smells awful … I’m begging

to be taken to a hospital or wound care clinic for it to be looked at. . . please take me.”

71. That same day, on August 14, 2013, over three weeks after this wound started,

Della Schmidt, LPN notes that “pt c/o smelling bad with cell mates complaining. Pt kiting to be

sent out for debredement [sic]. Placed on Doctors line.”

72. Mr. Neisler received an x-ray, finally, on August 14, which showed “considerable

soft tissue swelling” but “no osteomyelitis visible.”

73. NP Waits charted on around August 15, 2013, that Mr. Neisler’s right toe ulcer

was 2.5 x 2.5 cm, had “necrotic tissue” and presented with “malodor.”

74. NP Waits told Mr. Neisler that his medical condition was outside the “scope” of

what they handle at the jail.

75. NP Waits referred Mr. Neisler to the wound care clinic for debridement and

wound management.

76. NP Waits recklessly did not mark this transfer as “emergent”, despite knowing

that Mr. Neisler had actual dead tissue on his feet that had been festering for three + weeks and

was beyond the scope of his practice or that of anyone at the jail.

77. NP Waits charted that the need for this transfer to the wound care clinic was




11

“urgent”, but did nothing to ensure that this known serious medical need was met. Instead, NP

Waits recklessly abandoned Mr. Neisler in a medical crisis, and Mr. Neisler was not transferred

for necessary treatment.

78. On August 16, 2013, Mr. Neisler sent another KITE stating that NP Waits had

told him he would be transferred to deal with “necrotic tissue”, asking when that was going to

happen. Mr. Neisler specifically stated that NP Waits told him that: “there was necrotic tissue

that needed to be cut off and he would order a trip to a medical clinic or hospital for me. When

am I going?” He pled: “My foot is getting worse hour by hour and I really really don’t want to

lose my big toe ... or any other toes ... I am a diabetic and am very scared at this point.”

79. On August 17, 2013, Plaintiff received a response telling him to “please be

patient” and that the “MD will have our medical clerk make your appt.” On information and

belief, when the term MD is used in these records, it is referring to NP Waits.

80. Nothing was done in response to this known medical crisis except to callously tell

Mr. Neisler that he needed to be patient about his foot that was rotting off.

81. Apparently as of August 17, the appointment hadn’t even been made.

82. Mr. Neisler responded stating: “I appreciate the fact that I may have an

appointment set, however it has been 3 days since the visit with the doctor and I have a bloody

sock collection growing bigger by the hour. I’m bleeding through the bandage as soon as I put it

on and take a few steps. It is getting worse every minute and I feel that I’m going to lose my big

toe, if not my foot … do you understand that I am diabetic with complete neuropathy of my feet

and lower legs?”

83. Despite these multiple KITEs, and medical staff charting over and over again that




12

he had a diabetic wound that was infected and growing in size, and that Mr. Neisler was

reporting such things like “I really really don’t want to lose my big toe”, that he was very scared

and was desperate to see a doctor, CHC staff consciously decided to ignore Plaintiff’s repeated

pleas for medical attention.

84. On August 18, 2013, NP Waits saw Mr. Neisler. Even though 72 hours since his

Order for transfer had elapsed and Mr. Neisler was still in the jail with his rotting toe, NP Waits

still did not have Mr. Neisler emergently sent out or take any steps to arrange for his transfer.

85. On August 18, 2013, Mr. Niesler wrote another KITE begging to be taken to a

wound clinic for care, as “Mr. Wait said he was ordering. That was 5 days ago.” He notes that he

was actually seen by NP Waits on the 18th

, but still, apparently nothing was done.

86. On August 19, 2013, it is noted that the right toe “continues with soft swelling

pink to red. With odor … bandaid drainage brown in color.”

87. Also on August 19, 2013, Mr. Neisler sent a KITE stating that his foot was

“bleeding profusely.” He asked again when he was going to be sent out stating:

I spoke with deputy McCutcheon today at 11:40 am about my foot which is bleeding profusely. He spoke with the pod 5 nurse who said as far as she can tell,

there is not an order from my last meeting with Mr. Wait for an an [sic]appointment for outside medical care. Mr. Wait told me at my appointment last

week that he was absolutely 100 percent sending me out because my injury, in hiswords … was out of the scope of what he could do and needed to be taken care of

immediately. He said the tissue had become necrotic and needed to be cut away.

88. Three hours later, Mr. Neisler received another response from HSA Meyer,

simply repeating in response to this begging for help: “We are awaiting word back from the

hospital so they can tell us when to bring you. The ball is in their court now; but, I just asked my

clerk to call them again and bug them ... The nurse will see you tonight to reevaluate the dressing




13

needs.”

89. On August 20, 2013, Della Schmidt, LPN now notes that “pt seen and dressing

change done to r great toe pt has brownish discharge to bandaid, blister with necrotic tissue

opened up.”

90. Mr. Neisler sent another KITE on August 20, 2013, stating “I am now going on 6

days since Dr. Wait put in my medical visit to a hospital. My foot is rotting and stinking away. I

have never heard of waiting for a hospital to tell you when you can come. Normally people go to

the hospital when they need care.”

91. HSA Meyer responded, stating that, apparently according to Arapahoe County

and/or CHC policy, this did not qualify as an “emergency”.

92. HSA Meyer, acting apparently on NP Waits designation of this situation as

“urgent” rather than “emergent”, even after the 72 hours had elapsed, stated that according to

CHC and/or Arapahoe policy: “[h]ere, we have to request an appointment, a consultation, and

they tell us when to bring patients. This is not an emergency visit – it is a specialty clinic visit . .

. Unfortunately, we are still awaiting the date from the hospital.”

93. Mr. Neisler then sent another KITE: “well… almost another 24 hours has gone

by. Any word from the hopsital yet? I’m exasperated.”

94. On August 21, 2013 Cozy Ross, LPN, states that she was “approached at am med

pass by I/M with concern about care for his great toe. Toe was black with thick flap of skin

separated from toe on underside of toe. Smell was moderate & toe was mod swollen with some

redness. This pt reports he was supposed to have an outside appt with medical personelle but has

not yet rec.”




14

95. After over a month of begging medical staff for help, the HSA finally intervened

and secured transfer to a hospital.

96. Thus, on August 21, 2013, HSA Meyer charted: “concerned about the patient’s

medial condition and the delay in setting up a clinic/specalist appointment, contacted DHMC

CCMF in an attempt to secure a direct-admit for care.”

97. Mr. Neisler was finally taken to the emergency room where his toe was

amputated.

98. By the time he was admitted to Denver Health the infection had spread to his

bone and he has required serial amputations of his toes trying to cut off the infection,

culminating to date in the amputation of all toes on his right foot.

99. On August 22, 2013, Denver Health records state:

The patient is a well controlled diabetic male who has a rather large ulceration onthe plantar aspect of his right toe encompassing approximately ! of the tuft of the

great toe. It is down to the bone in multiple areas. There are sinuses. There is

malodor. It has been present for approximately 30 days. There is streaking anderythema extending proximally as well. MRI did indicate a focus of osteomyelitisin the middle aspect of the distal phalanx. . .it was noted that there was almost no

viable tissue plantarly, it was very necrotic and malodorous, and it did probe to bone in numerous areas, and, in order to have soft tissue closure and to have an

adequate debridement, it was deemed necessary to do a partial toe amputation.

100. Denver Health records describe his diabetic ulcer as: “ulcer + malodor + necrotic,

exposed bone ... likely osteomyeltis.”

101. After the procedures at Denver Health, Mr. Neisler came back to Arapahoe

County where his conditions remained unsanitary and reckless in the face of his known medical

condition. He kited repeatedly about these problems as well.

102. He was on IV antibiotics, which were inappropriately administered on at least one




15

occasion. Even his plastic cover for his foot wrap was taken away. He was supposed to use this

to shower, when he protested that it was ordered by Denver Health doctors, a nurse told him:

“you are in jail now, this is not the hospital.”

103. Mr. Neisler was released by the Court early release based on medical necessity

and need for care that was not being provide on September 22, 2013. After his release, Mr.

Neisler had to have serial operations resulting in, to date, the amputation of all toes on his right

foot.

104. Mr. Neisler’s injury is not yet fully ascertained. He is still receiving treatment

and evaluation related to these events and may still need further amputations. All of these

amputations are related and caused by the reckless mismanagement of his initial ulcer.

105. The emotional trauma of watching his body deteriorate while medical

professionals did nothing to save his foot haunts Mr. Neisler. He suffers permanent physical

disabilities and impairments, ongoing pain and persisting emotional distress.

106. As a direct and proximate result of the wrongful conduct of the Defendants,

Plaintiff has been substantially injured. These injuries include, but are not limited to, loss of

constitutional rights, physical injuries, impairments and disfigurement, great pain and emotional

distress, anxiety, shock, sadness, depression, anger, stress, and special damages for medically

related treatment caused by the unconstitutional, and negligent conduct of these Defendants.

107. As a direct and proximate result, Plaintiff also has suffered lost wages. He is

currently not able to work. He has applied for and received jobs since leaving jail but has had to

quit those jobs because his foot needed additional attention, amputations and required him to be

non-weight bearing. His economic losses in this regard are not yet fully ascertained, but will




16

include lost wages, special economic costs, medical liens, and the like.

108. Mr. Neisler also suffers emotional distress as a result of these events, including

their ongoing sequelae, including humiliation, anguish, and embarrassment over his physical

deformity and its cause. These injuries have significantly impacted his relationship with his

children.

109. Mr. Neisler is a life long athlete. Skiing, hiking, tennis, basketball, running, rock

climbing were all activities he participated in regularly with his children. These methods of

physical activity also helped him keep his diabetes in check. Mr. Neisler has been told he cannot

participate in any of these activities as the risk of a blister and further amputation was too high.

110. Defendant Waits’ conduct was engaged in with malice or with reckless

indifference to the federally protected rights of Plaintiff, entitling him to punitive damages.

111. Plaintiff hereby gives notice that he anticipates seeking leave to amend his

complaint to add punitive damages on his state law claims upon the completion of substantial

discovery.

V. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Violation of 42 U.S.C. § 1983

Eighth Amendment Prohibition Against Cruel and Unusual Punishment

(Plaintiff against NP Waits)

112. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

forth herein.

113. 42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation, custom or

usage of any state or territory or the District of Columbia subjects or causes to be




17

subjected any citizen of the United States or other person within the jurisdictionthereof to the deprivation of any rights, privileges or immunities secured by the

constitution and law shall be liable to the party injured in an action at law, suit in

equity, or other appropriate proceeding for redress . . .

114. Plaintiff is a citizen of the United States and all of the Defendants to this claim are

persons for purposes of 42 U.S.C. § 1983.

115. Plaintiff had a clearly established right under the Eighth Amendment to be free

from deliberate indifference to his known serious medical needs.

116. Individual Defendant to this claim, at all times relevant hereto, was acting under

the color of state law.

117. Individual Defendant continued to act in bad faith and with deliberate indifference

to Plaintiff’s serious medical needs and constitutional rights when he willfully ignored his

repeated requests for medical attention and intentionally denied and/or delayed his access to

medical care. Individual Defendant also, with deliberate indifference, did not enter a medical

order disallowing the use of ill-fitting boots for Plaintiff, did not make or implement an

appropriate wound care plan, and decided not to transfer him emergently outside of the facility.

118. Individual Defendant is not entitled to qualified immunity.

119. The acts or omissions of Defendant as described herein intentionally deprived

Plaintiff of his constitutional rights and were moving forces and substantial significant

contributing proximate causes of Plaintiff’s injuries.

120. As a direct result of Defendant’s unlawful conduct, Plaintiff has suffered injuries,

damages and losses as described herein entitling him to compensatory and special damages

including attorneys’ fees in amounts to be determined at trial.




18

121. As a further result of the Defendant’s unlawful conduct, Plaintiff has incurred

significant special damages, including medically related expenses and will continue to incur

further medically related expenses in amounts to be established at trial.

122. Plaintiff has also suffered lost wages, in ongoing amounts to be ascertained in

trial.

123. Plaintiff is further entitled to attorneys’ fees and costs pursuant to 42 U.S.C.

§1988, pre-judgment interest and costs as allowable by federal law.

124. Plaintiff is entitled to punitive damages against this individually named Defendant

under 42 U.S.C. § 1983, in that the actions of these individual Defendants have been taken

maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of

Plaintiff.

SECOND CLAIM FOR RELIEF

Negligence

(Plaintiff against entity CHC Defendants)

125. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

forth herein.

126. CHC Defendants are private corporations that contract to provide medical care

and health services to inmates at Arapahoe Jail.

127. Defendants to this claim are properly sued for state law negligence as they are

private corporations and therefore are not entitled to immunity under the Colorado Governmental

Immunity Act.

128. At all times relevant hereto, Plaintiff Neisler was under the care and treatment of

the CHC Defendants’ staff through their contractual relationship with Arapahoe County.




19

129. The CHC Defendants are vicariously liable for the negligent acts and omissions

by its agents and/or employees including those named individually herein, and directly liable for

their own negligent failures in training, policies, and practices.

130. Defendants had a duty to provide reasonable medical care and treatment to

inmates at Arapahoe County, including Mr. Neisler, and to exercise reasonable care in the

training and supervision of their employees.

131. These duties of care are informed by state law. Under C.R.S. 16-3-401,

“prisoners arrested or in custody shall be treated humanely and provided with adequate food,

shelter, and, if required, medical treatment.” The provision of adequate medical treatment and

humane care is a statutory obligation under this and other statutes. These duties are also

informed by NCCHC standards.

132. Employees of the CHC Defendants, while acting within the scope of their

employment, variously committed negligent acts and omissions as set forth herein with respect to

the care and treatment of Plaintiff Neisler.

133. All medical care givers, including but not limited to NP Waits, had caregiver-

patient relationships with Plaintiff and were acting or failing to act within the scope of their

employment with CHC Defendants at all times pertinent to this Complaint.

134. Involved caregivers at the jail, owed Mr. Neisler a duty to exercise that degree of

care, skill, caution, diligence and foresight exercised by and expected of nurses, nurse

practitioners, and other care givers in similar situations.

135. Involved caregivers at the jail, grossly deviated from that standard of care and

were negligent in failing to properly care for and treat Plaintiff Neisler’s known serious medical




20

needs in the health care services they failed to provide. Inter alia, they further breached that

duty of care in negligently failing to properly assess Mr. Neisler, negligently charting his

symptoms and complaints, failing to respond to his multiple requests for medical care despite

knowing and charting that his wound was worsening and becoming necrotic, failing to

appropriately treat the known worsening diabetic ulcer, unduly delaying the order for Plaintiff

not to work prolonged periods standing in ill-fitting assigned boots; and refusing to take him to

the doctor or hospital while he was begging for help and telling them that his foot was rotting off

for weeks.

136. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiff

Neisler suffered significant physical pain, emotional suffering, permanent disability, and other

damages.

137. Plaintiff Neisler is therefore entitled to general and compensatory damages for

such pain and suffering and emotional distress and to special damages for past and future

medical and health care related expenses, all in amounts to be proven at trial.

138. Mr. Neisler has also suffered lost past and future earnings in ongoing amounts to

be ascertained in trial.

139. Although not required, Plaintiff hereby gives notice that he may be seeking to

amend the complaint to add punitive damages against these Defendants because the injuries

complained of are attended by circumstances of fraud, malice or willful and wanton conduct

engaged in by their employees and agents.




21

VI. PRAYER FOR RELIEF

Plaintiff prays that this Court enter judgment for the Plaintiff and against each of the

Defendants and enter the following relief:

1. Award Plaintiff compensatory, non economic, consequential and economic damages

as proven at trial against all of the Defendants;

2. Award Plaintiff special damages as proven at trial;

3. Award Plaintiff punitive damages relating to the federal claim brought in this matter

against Individual Defendant;

4. Award Plaintiff punitive damages relating to the state law claim should Plaintiff file

suitable amendment of the complaint;

5. Award Plaintiff attorneys’ fees and costs as provided for under all applicable federal

and state statutes;

6. Award Plaintiff interest from the earliest possible date under appropriate federal and

state statutes;

7. All other appropriate relief at law and equity.

PLAINTIFF RESPECTFULLY REQUESTS A JURY TRIAL ON ALL TRIABLE ISSUES.

/s/ Anna Holland Edwards

Anna Holland Edwards

Erica T. GrossmanJohn R. Holland

HOLLAND, HOLLAND EDWARDS & GROSSMAN, PC1437 High Street

Denver, CO 80218




22

CERTIFICATE OF REVIEW

This is to certify that undersigned counsel has conferred, pursuant to Colorado statutes,

with a person who has extensive expertise in the areas of alleged negligence and deliberate

indifference to serious medical needs and that this professional has reviewed the known facts,

including such records, documents, and other materials as he has found to be relevant to the

complaint allegations of negligent acts and omissions, and has concluded that the filing of these

claims do not lack substantial justification and in fact are substantially meritorious and involve

clear violations of the standards of care involved.

/s/ Anna Holland Edwards

Anna Holland Edwards




Case 1:14-cv-01250 Document 1-1 Filed 05/01/14 USDC Colorado Page 1 of 1



AO 440 (Rev. 12/09) Summons in a Civil Action

U NITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk


District of Colorado

JAMES NEISLER

14-CV-1250

Correctional Healthcare Companies, Inc., CHCCompanies, Inc., et al

Correctional Healthcare Companies, Inc.;CHC Companies, Inc,;

Ron Waits6200 S. Syracuse Way, Suite 440Greenwood Village, CO 80111

Anna Holland Edwards, Esq.

Erica Grossman, Esq.John Robert Holland, Esq.1437 High StreetDenver, CO 80218



AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:


14-CV-1250

0.00

james neisler complaint

Documents