Mack v. Bingham et al

Filing 55

Order on Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

WILLIAM ALPHONSO MACK,
Plaintiff,
Case No. 3:04-cv-0193-RRB

vs.
REBECCA BINGHAM,
DR. ROBERTSON,
DR. DUCH J. VERSHOOR, PA-C,
DAVID NORCROSS, PA-C,
WILLIAM MICHAEL GREENE, PA-C,
DON BRANDON, ADA COORDINATOR,
TIMOTHY F. LYDEN,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Defendants.

I.

INTRODUCTION
Before the Court are Defendants William Michael Greene,

PA-C, and Dutch J. Vershoor, PA-C ("Defendants") with a Motion for
Summary Judgment at Docket 43. The motion is joined by the other
Defendants at Docket 47.
deliberately

indifferent

Defendants argue that they were not
to

Plaintiff's

medical

needs

and,

therefore, Plaintiff cannot establish a likelihood of success on

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 1
3:04-CV-0193-RRB

the

merits

to

sustain

his

request

for

injunctive

relief.1

Defendants also argue that they did not prevent Plaintiff from
participating in medical services in violation of the Americans
with Disabilities Act.2
II.

The motion is opposed at Docket 44.3

FACTS
Plaintiff William Alphonso Mack, a prisoner housed at the

Corrections Corporation of America (“CCA”) Florence Correctional
Center under a conviction from the State of Alaska, contracted
Hepatitis C in or around 1998 and desires the appropriate treatment
for

the

same.

However,

due

to

his

diabetes,

hypertension,

gastrointestinal (“GI”) problems, and long-standing psychiatric
illness, Dr. Rebecca Bingham stated in a letter to Physician
Assistant Mike Greene that: “Mr. Mack does not meet DOC protocol
{f)or

treatment

of

his

Hepatitis

C

at

this

time

.

.

.

.”4

Dr. Bingham further stated that: (1) “Any one of [his pre-existing

1

Clerk's Docket 43 at 1 (emphasis added).

2

Id. at 2 (emphasis added).

3

Inasmuch as the Court has treated Plaintiff’s Motion for
Summary Judgment at Docket 44 as a Cross-Motion for Summary
Judgment and Response in Opposition to Defendants’ Motion for
Summary Judgment, it has further considered the information
provided to it by way of Defendants’ Reply Memorandum to
Plaintiff’s Response to Motion for Summary Judgment at Docket 48,
despite Defendants’ request to withdraw the same at Docket 50. The
parties are so informed.
4

Clerk’s Docket 49 at 1 (citation omitted).

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 2
3:04-CV-0193-RRB

conditions] could disqualify him as an appropriate candidate, and
all

of

them

together

make

the

case

quite

inappropriate

for

treatment, however much the patient might feel he wants it5; and
(2) Plaintiff’s “willingness to sign a ‘waiver of liability’ for
treatment side-effects does not alter the fact that treating
Mr. Mack at this time would constitute poor medical care not
appropriate to current standards, nor to DOC guidelines . . . .”6
Plaintiff disagrees.
With

no

medical

expert

to

support

his

request

for

treatment, “Mack seeks an injunction ordering Defendants to perform
the ‘liver biopsy,’ and place him into the HCV Treatment Program.
He also seeks declaratory judgment that Alaska’s protocols for
medical treatment are discriminatory.”7
III. STANDARD OF REVIEW
A.

Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides

that summary judgment should be granted if there is no genuine
dispute as to material facts and if the moving party is entitled to
judgment as a matter of law.

The moving party has the burden of

5

Id. at 1-2 (citation omitted).

6

Id. at 2 (citation omitted).

7

Clerk’s Docket 43 at 3-4 (citations omitted).

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 3
3:04-CV-0193-RRB

showing that there is no genuine dispute as to material fact.8

The

moving party need not present evidence; it need only point out the
lack of any genuine dispute as to material fact.9

Once the moving

party has met this burden, the nonmoving party must set forth
evidence of specific facts showing the existence of a genuine issue
for trial.10

All evidence presented by the non-movant must be

believed for purposes of summary judgment, and all justifiable
inferences must be drawn in favor of the non-movant.11 However, the
nonmoving party may not rest upon mere allegations or denials, but
must show that there is sufficient evidence supporting the claimed
factual dispute to require a fact-finder to resolve the parties’
differing versions of the truth at trial.12
B.

Injunctive Relief
Injunction

relief

is

appropriate

when

a

plaintiff

“establishes [either] (1) probable success on the merits and
irreparable harm if relief is denied, or (2) that there are serious
questions on the merits and the balance of hardship tips sharply in

8

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

9

Id. at 323-325.

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9

(1986).
11

Id. at 255.

12

Id. at 248-9.

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 4
3:04-CV-0193-RRB

favor of plaintiff.”13

“The district court must also consider

whether the public interest favors issuance of the injunction.”14
IV.

DISCUSSION
A.

Plaintiff Cannot Show a Likelihood of Success on the
Merits or Irreparable Harm.
“To

establish

a

constitutional

violation

based

on

inadequate medical care, an inmate must present facts or omissions
sufficiently harmful to evidence deliberate indifference to serious
medical needs.”15

“Prison officials are deliberately indifferent

to a prisoner’s serious medical needs when they deny, delay, or
intentionally interfere with medical treatment.”16

However,

[A] plaintiff’s showing of nothing more than
“a difference of medical opinion” as to the
need to pursue one course of treatment over

13

Rowe v. Burton, 884 F. Supp. 1372, 1375 (D. Alaska 1994)
(citing Rent-A-Center, Inc. v. Canyon Television and Appliance
Rental, Inc., 944 F.2d 597, 602 (9th Cir. 1991))(emphasis added).
14

Southwest Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 917 (9th Cir. 2003)(citing Fund for Animals, Inc. v.
Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992)).
15

Clerk’s Docket 43 at 6 (citing Estelle v. Gamble, 429
U.S. 97, 106 (1976) and Lopez v. Smith 203 F.3d 1122 (9th Cir.
2000)(en banc))(emphasis added). “It is settled law that deliberate
indifference to serious medical needs of prisoners violates the
Eighth Amendment. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996)(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976).
16

Jackson, 90 F.3d at 332 (citing Hamilton v. Endell, 981
F.2d 1062, 1066 (9th Cir. 1992)(overruled on other grounds))
(emphasis added).
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 5
3:04-CV-0193-RRB

another [is] insufficient, as a matter of law,
to establish deliberate indifference.17
Consequently,
To prevail under these principles, [Plaintiff]
must show[: (1)] that the course of treatment
the doctors chose was medically unacceptable
under the circumstances[; and (2) P]laintiff
must show that they chose this course in
conscious disregard of an excessive risk to
[his] health.18
Plaintiff has failed to do either.

In fact, “[t]he medical

opinions establish more harm will result to Plaintiff by the
treatment due to his multiple medical problems, and the side
effects of the treatment rendered.”19

As opined by Defendants,

“[i]n this instance, the treatment is worse than the disease.”20
Moreover, Plaintiff has failed to present any expert
testimony to support his claim that he is in need of the medical
treatment that he seeks.
Plaintiff, essentially has a disagreement with
the course of his medical treatment as
recommended by the physician and this type of
claim [is] not sufficient to establish a

17

Id. (citing Estelle, 429 U.S. at 107-8)(emphasis added).

18

Id. (citations omitted).

19

Clerk’s Docket 43 at 8.

20

Id. at 9.

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 6
3:04-CV-0193-RRB

constitutional
indifference.21

violation

for

deliberate

As a result, Plaintiff is unable to show a likelihood of success on
the merits; whereby, his claim for injunctive relief fails as a
matter of law.
What is more, because Plaintiff “has no evidence that
would justify the Court’s intervention into the medical decisions
of the staff doctors, [the Court further concludes] he cannot show
the irreparable harm needed to justify an injunction.”22

His

Americans With Disabilities (“ADA”) claim fares no better.
B.

Plaintiff’s ADA Claim Fails as a Matter of Law.
Plaintiff “claims he was subject to discrimination in

violation of the ADA because . . . Defendants failed to provide him
with his requested liver test and drug treatment regime.”23
In order to state an ADA claim Plaintiff must demonstrate
that

he

(1)

is

a

handicapped

person;

(2)

that

is

otherwise

qualified; and that the Defendants’ actions either (3) excluded his
participation in or denied him the benefits of a service, program,
or activity; or (4) otherwise subjected him to discrimination on

21

Clerk’s Docket 48 at 5 (emphasis added).

22

Clerk’s Docket 43 at 9 (emphasis added).

23

Id.

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 7
3:04-CV-0193-RRB

the basis of his physical handicap.24 “[Plaintiff] cannot establish
the essential elements of his ADA claim.”25
To begin, the record reveals Plaintiff has not been
denied participation in or benefits of a prison service, program,
or activity.

Indeed, he has received and continues to receive

adequate medical care.

“Plaintiff’s [only] Complaint is that he

did not receive a particular medical procedure.
not fall within the parameters of the ADA.”26

Such a clam does

And, even if it did,

the Court concludes Plaintiff’s “numerous medical conditions do not
constitute a disability under the ADA because they do not affect
his day to day life activities.”27
V.

CONCLUSION
For

these

reasons,

and

for

additional

reasons

more

carefully articulated in Defendants' Motion for Summary Judgment at
Docket 43, Defendants' Motion for Summary Judgment at Docket 43 is
hereby

GRANTED

and

the

matter

is

DISMISSED

with

prejudice.

24

Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996).

25

Clerk’s Docket 43 at 10.

26

Clerk’s Docket 48 at 4 (emphasis added).

27

Id. (emphasis added).
An individual has a covered
disability if the individual either: (1) has a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; or (2) has a record of such an
impairment; or (3) is regarded as having such an impairment. 42
U.S.C. § 12102(2).
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT - 8
3:04-CV-0193-RRB

Plaintiff's "Motion for Summary Judgment” at Docket 44 is DENIED as
moot.
ENTERED this 21st day of August, 2006.
/s/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

ORDER GRANTING DEFENDANTS’
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3:04-CV-0193-RRB