Turley v. Mink et al

Filing 40

ORDER: granting in part and denying in part 34 Renewed Unopposed Motion for Rule 35 Examination and for Writ of Habeas Corpus Ad Testificandum. The Renewed Motion is GRANTED IN PART to allow the independent medical examination to be conducted, and DENIED IN PART insofar as it seeks a writ of habeas corpus ad testificandum, by Magistrate Judge Boyd N. Boland on 9/2011.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-02772-REB-BNB
ROBERT TURLEY,
Plaintiff,
v.
CORRECTIONAL HEALTHCARE MANAGEMENT, INC.,
KELLY JEAN DRYKE, R.N., and
MATT KILLOUGH, P.A.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the plaintiff’s Renewed Unopposed Motion for Rule 35
Examination and for Writ of Habeas Corpus Ad Testificandum [Doc. # 34, filed 9/6/2011]
(the “Renewed Motion”). The Renewed Motion is GRANTED IN PART to allow the
independent medical examination to be conducted, and DENIED IN PART insofar as it seeks a
writ of habeas corpus ad testificandum.
The plaintiff is a convicted felon incarcerated by the Colorado Department of Corrections
at the Kit Carson Correctional Center. His complaint alleges three claims for relief: (1) Cruel
and Unusual Punishment in violation of the Eighth and Fourteenth Amendments; (2) Medical
Negligence; and (3) Willful and Wanton Conduct. The action arises from the following events:
While incarcerated in the Jefferson County Detention Center, on
November 13, 2009, during the course of eating a ham sandwich at
approximately 11:00 a.m., Plaintiff experienced severe pain in his
throat. The pain was caused by a portion of the sandwich
becoming lodged in his esophagus.

Scheduling Order [Doc. # 17, filed 3/2/2011] at p. 2. The plaintiff alleges that defendants Dryke
and Killough delayed in providing necessary medical care, “allowing a serious medical need to
worsen. . . .” Id. at p. 3.
The Renewed Motion states:
3. Susan Tiona, M.D., the medical doctor employed by Kit Carson
Correctional Center where Mr. Turley is incarcerated, believes the
condition from which Mr. Turley suffers is a sequelae of his
ruptured esophagus.
4. In order to determine if Mr. Turley suffers from a mechanical
obstruction related to his ruptured esophagus which is causing his
breathing difficulties, Dr. Tiona has requested funding to have a
CT examination performed with respect to his mediastinal and
thoracic cavities.
Renewed Motion [Doc. # 34] at ¶¶3-4. The Motion seeks an order for an independent medical
examination and a writ to allow the plaintiff to travel to the Kit Carson County Memorial
Hospital, “only a few miles from Kit Carson Correctional Center,” where the examination can
occur. Id. at ¶8.
Previously, I ordered the plaintiff to address the issues of transportation and security of
the plaintiff in connection with the requested IME and to serve any supplemental motion for an
IME on the plaintiff’s jailers. Order [Doc. # 32] at p. 2. Consistent with those requirements, the
Renewed Motion states:
A copy of the original motion was served on Vance Everett, the
warden of Kit Carson Correctional Center and Dr. Susan Tiona.
Judith Fuchs, quality assurance director of Kit Carson Correctional
Center, informed me that, upon service of the requested Writ on
the Colorado Department of Corrections, the Warden of Kit
Carson Correctional Center would be directed to provide
transportation and security for the requested examination. The
undersigned counsel for plaintiff has agreed with Kit Carson
Correctional Center to reimburse it for its cost of providing
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transportation and security.
Renewed Motion [Doc. # 34] at pp. 2-3.
The plaintiff relies on 28 U.S.C. § 2241(c)(5) as authority for a writ of habeas corpus ad
testificandum commanding that the plaintiff be transported to the Kit Carson County Memorial
Hospital for the IME. Section 2241(c)(5) provides no such support, however. To the contrary,
28 U.S.C. § 2241(c)(5) provides that “[t]he writ of habeas corpus shall not extend to a prisoner
unless . . . [i]t is necessary to bring him into court to testify or for trial.” (Emphasis added.)
Here, the plaintiff seeks a writ ordering that he be transported to a hospital for an IME, not into
court to testify.
Under similar circumstances, the court in Wilson v. Hill, 2011 WL 1630814 (S.D. Ohio
April 27, 2011), denied the requested writ, stating that “requiring a correctional institution to
transport an inmate for an independent medical examination to support his § 1983 claim is not
authorized by either the habeas corpus statute or All Writs Act,” citing Ivey v. Harney, 47 F.3d
181 (7th Cir. 1995).
Correctional facilities are responsible for providing reasonable medical care for their
inmates, and in my experience they frequently transport inmates to medical facilities outside of
the prison for specialized treatment. I have no objection, should the parties and the institution
agree, to the transport of the plaintiff to the Kit Carson County Memorial Hospital for an IME,
and the court in Ivey recognized the propriety of such an agreement:
If expert assistance is essential, Ivey’s [the plaintiff] lawyers
should find a willing physician in Taylorville or environs. . . . Or
they should offer to compensate the Department of Corrections for
the cost of transportation and security. . . . We do not know
whether Illinois would be receptive to financial overtures. . . .
That is a subject between Ivey and his jailers. The only question
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before us is whether a court may order a custodian to transport the
prisoner outside the prison to acquire evidence in a suit to which
the custodian is not a party. Under both § 1651(a) and §
2241(c)(5), the answer is no.
Ivey, 47 F.3d at 186.
IT IS ORDERED that the Renewed Motion [Doc. # 34] is GRANTED IN PART and
DENIED IN PART as follows:
(1)

GRANTED to allow the plaintiff to undergo an independent medical examination

pursuant to Fed. R. Civ. P. 35. The examination may occur--with the consent of the parties, the
Colorado Department of Corrections, and the warden of the prison in which the plaintiff is
housed--at the Kit Carson County Memorial Hospital under the direction of Dr. Susan Tiona,
M.D.; may occur at such date and time as the parties, Dr. Tiona, the plaintiff’s jailers, and the
hospital may agree; shall consist of a CT examination with respect to the plaintiff’s mediastinal
and thoracic cavities; and all of the costs of the examination, including the related transportation
and security of the plaintiff, shall be advanced by the plaintiff and/or his counsel; and
(2)

DENIED to the extent that it seeks a writ of habeas corpus ad testificandum.

Dated September 20, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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