The inmate who received injuries at a privately-run Colorado Springs prison when another prisoner fell through the ceiling has made a sufficient case for negligence and indifference to allow his lawsuit to proceed, a federal court ruled last week.

According to legal filings, Shawn Allen was incarcerated at Cheyenne Mountain Re-entry Center on Jan. 21, 2018 when other inmates attempted to escape through the ductwork above his unit. One of them fell on Allen, causing injuries to his face, leg and head.

GEO Group, Inc. and Community Education Centers, Inc., which the company acquired in 2017, reportedly did not send Allen immediately for a medical evaluation. When staff finally visited with Allen, he “complained of severe headache pain, blurred vision, memory loss, thigh bruising, and pain/injury around [his] eye, forehead, cheek, and chin.”

Three days later, he told a nurse that his head pain and dizziness continued, but she did not contact a physician. Ten days after the injury, Allen still reported “severe pounding pulsing headache[s] . . . with blurry vision,” and a doctor ordered pain medication without examining Allen in person. X-rays of Allen’s head showed no fractures.

On March 2, an ophthalmologist diagnosed him with traumatic iritis —an inflamed iris — and ordered a CT scan of the bones surrounding his eyes. Allen said GEO Group did not schedule one soon after. On April 9, he received a CT scan after leaving Cheyenne Mountain, which revealed him to have an orbital fracture. 

Allen filed a complaint in U.S. District Court against the private prison operator and staff alleging a deprivation of rights and violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

“It was Defendants’ policy, custom, or practice to make inmates suffer by not providing adequate medical care such as diagnostic studies, which reveal serious medical conditions…even when objective signs and symptoms warranted additional care,” he wrote.

However, U.S. Magistrate Judge Michael E. Hegarty disagreed that GEO Group exhibited unconstitutional policies, noting that medical staff ordered both x-rays and pills for Allen. Further, Allen failed to demonstrate how his isolated case was a pattern at Cheyenne Mountain. The fact that a doctor had not personally examined Allen weakened, instead of strengthened, his argument, because it did not establish a neglectful diagnosis, Hegarty added.

However, for the other employees, Hegarty wrote in the Sept. 1 decision that the standard for deliberate indifference is whether “the need for additional treatment or referral to a medical specialist is obvious.” Sarah-Lynn Nero and Serene Beall both contacted a physician days after seeing Allen. Mary Rivera did not reportedly talk to a doctor at all following her visit with Allen, and Sherri Ziegler said she had “no concern” for eye or head trauma.

“Although a close call, the Court finds that Plaintiff has stated a plausible claim,” wrote Hegarty. “Given Plaintiff’s complaints, the Court finds that a reasonable person would realize the risk to Plaintiff in not referring for further treatment.”

He also permitted medical negligence claims to go forward against Nero, Beall, physician Anthony Vecchiarelli and physician assistant April Caldwell. 

Although Allen also claimed negligence on GEO Group’s part for not preventing the inmate’s fall through the ceiling, Hegarty “cannot make the leap” that the company knew or should have known about the risk.

Earlier this year, GEO Group withdrew from its operation of Cheyenne Mountain, shutting down the facility. In a statement, the company said it is “aware of the recent decision dismissing claims against GEO Group and will not comment on pending litigation matters related to individual employees.”

The lawyer for Allen did not respond to a request for comment and an attorney for the defendants could not comment on ongoing litigation.

In their response to the complaint, the defendants wrote that Allen had not listed “plausible facts” for the deliberate indifference claim, and that his complaint “fails to allege that the delayed diagnosis of orbital fracture caused his alleged traumatic brain injury.”

Todd Bovo, the attorney representing Allen, said his client is still “not doing great” from his injuries, and that a deliberate indifference claim, in his estimation has a high threshold for plaintiffs to meet.

“You don’t usually find medical providers intentionally causing somebody harm,” Bovo said. “It’s a very high standard and I think it needs to be defined more” by federal courts.

The case is Shawn Allen v. GEO Group, Inc. et al.

This story has been updated with responses from GEO Group and Allen’s attorney.