Self First Amended Complaint

8/6/2019 Self First Amended Complaint

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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.



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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generic civil rights claims.

CLAIM THREE42 U.S.C. 1983-Violation of Plaintiffs Fourteenth Amendment Due Process

Rights



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.



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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




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




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

[email protected]
mailto:[email protected]:[email protected]

Documents

Self First Amended Complaint