Lancaster v. Valdez et al

Filing 35

MEMORANDUM DECISION AND ORDER denying 15 Motion for Summary Judgment. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

DUSTIN PATRICK LANCASTER,
Plaintiff,

Case No.: CV 09-683-S-CWD
MEMORANDUM DECISION AND
ORDER

vs.
PHILIP VALDEZ, KAT AMOS,
Defendants.

Currently pending before the Court is Defendant Stander’s Motion for Summary
Judgment (Dkt. 15). Also at issue is service of process on Defendants Kat Amos and Rory
O’Connor. For the reasons set forth below, the Court will: (1) deny Defendant Stander’s
Motion for Summary Judgment (Dkt. 15); (2) direct the United States Marshal Service to
serve Defendants Amos and O’Connor; and (3) refer this case for a settlement conference
before United States Magistrate Judge Ronald E. Bush.
BACKGROUND
A.

Procedural History
On December 28, 2009, Plaintiff filed this lawsuit regarding the medical care he

received after undergoing elbow surgery. Dkt. 3. The surgery took place while Plaintiff
was in the custody of the Idaho Department of Correction (“IDOC”) and housed at the
North Idaho Correctional Institution (“NICI”). Id.. The Court conducted an initial review
MEMORANDUM DECISION AND ORDER- 1

of Plaintiff’s claims, as required under 28 U.S.C. §1915A, and permitted Plaintiff to
proceed with Eighth Amendment claims against Defendants Amos, O’Connor, and
Stander. Dkt. 8. All other claims were dismissed.
Because Plaintiff is proceeding in forma pauperis, the Court is responsible for
service of process. To date, only Defendant Stander has been served.
B.

Facts Alleged
The facts are largely undisputed and are derived from Plaintiff’s medical records.

See Affidavit of Acel Thacker (Dkts. 17, 18). The parties simply dispute whether the
treatment Plaintiff received constitutes deliberate indifference.
On April 13, 2009, Plaintiff had elbow surgery due an injury he sustained while
playing basketball.1 ICC Lancaster 111 (Dkt. 18). On April 17, 2009, Dr. Steven R.
Boyea conducted a post-operation examination of Plaintiff and recommended the
following treatment: “The patient will follow up in about two weeks for a cast removal,
staple removal and then we will possibly repeat x-rays. If they demonstrate good overall
alignment, we may get him into a brace and begin some range of motion activities at that
time.” Id. at 108.
On May 8, 2009, Plaintiff’s cast was removed. Id. at 135. Four days later, on May
12, 2009, Plaintiff was transferred from NICI to the Idaho State Correctional Institution
(“ISCI”).
1

It appears that Plaintiff had previous problems with his left elbow . See ICC Lancaster
72, 157. On March 3, 2009, Plaintiff completed a health service request stating, “I have
tendonitis [sic] in my left elbow and it hurts very bad.” Id.
MEMORANDUM DECISION AND ORDER- 2

Plaintiff alleges that, upon transfer, he told Michael Takagi, a Physician Assistant
with Correctional Medical Services, Inc., about his injury. Complaint, p. 4 (Dkt. 3).
Takagi’s alleged response to Plaintiff was, “Yeah, well you’re in prison.” Id.
Nevertheless, on May 13, 2009, Takagi referred Plaintiff to physical therapy. ICC
Lancaster 59 (Dkt. 18). The treatment note states, “PT referral - to K. Amos.” Id. Takagi
also noted that Plaintiff was already experiencing a decreased range of motion (“ROM”)
and “in cell ROM stretches has [sic] not increased ROM.” Id.
On May 22, 2009, Dr. Boyea sent to Defendant Amos a letter stating:
It is important that he [Plaintiff] be seen and follow up by an
Orthopaedic Surgeon [sic] to make sure the fracture is healing
and he gets return of function and motion. He should be out of
his cast and be have [sic] started Physical Therapy. When an
Orthopaedic Surgeon [sic] is identified please contact me so I
can inform them of the injury pattern and operative
intervention that was preformed [sic].
Id. at 50.
On June 10, 2009, Takagi submitted a second consultation request for orthopedic
assessment and follow up. Id. at 134. Takagi noted that Plaintiff’s ROM had decreased
and “[Patient] has not yet been started on PT post surgery.” Id.
Despite these three separate requests, Plaintiff received no physical therapy while
housed at the ISCI. Instead, approximately one month after his transfer from NICI to
ISCI, Plaintiff was transferred to the private prison on June 18, 2009.
An Intrasystem Transfer Form dated June 17, 2009 indicates that Plaintiff had no
acute or chronic problems, no current treatments, no consultations scheduled, and no
MEMORANDUM DECISION AND ORDER- 3

follow-up care was needed other than pain medications and anti-inflammatories. Id. at
173. It is not clear from the record who completed this form.
Upon arrival at the Idaho Correctional Center (“ICC”), Plaintiff again informed
medical staff of his injury and the necessity of physical therapy. Complaint, pp. 4 (Dkt.
3), Appendix B (Dkt. 3-1). However, the ICC Initial Health Screening Form completed
upon transfer reflects only that Lancaster had a visible sign of physical deformity,
specifically, “contracture of left elbow.” ICC Lancaster 25 (Dkt. 18). It also indicates that
Plaintiff had a left elbow repair in April 2009 and lists Dr. Boyea as his personal
physician. Id.
Nearly three weeks later, on July 6, 2009, Physician Assistant Rory O’Connor
examined Plaintiff and entered a progress note stating “Left arm flexion contracture due
to delay in PT to work on ROM following surgery. [Patient] states that he had attempted
some ROM exercises on his own but with little effect.” Id. at 66.
Two months later, on August 4, 2009, ICC staff ordered x-rays. Id. at 55. X-rays
were taken on August 6, 2009 and August 25, 2009. Id. at 37, 49.
On September 11, 2009, Defendant Stander examined Plaintiff. Dr. Stander’s
treatment notes state “frozen left elbow joint” and “he is left handed.” Id. at 54. Dr.
Stander recommended an orthopedic consultation and prescribed pain relievers and antiinflammatories. Id. at 54.
On October 7, 2009, orthopedic specialist, Darby Webb., M.D., examined Plaintiff
and made the following notations in a report submitted to Dr. Stander:
MEMORANDUM DECISION AND ORDER- 4

[Plaintiff] subsequently was in a cast for approximately one
month. When this was removed, he has been just trying to
move it on his own without physical therapy. Unfortunately,
Dustin has developed arthrofibrosis of his left elbow. It is
extremely severe. I do not think formal physical therapy at
this point will help. I have recommended open excision and
lysis of adhesions as well as capsular release. I have told
[Plaintiff] that even if he would have done physical therapy,
he likely would have had some residual stiffness in the elbow
despite the excellent treatment by Dr. Boyea. . . but this is a
severe injury that can cause some stiffness in the elbow.
Id. at 120-21.
On October 15, 2009 and November 17, 2009, Dr. Stander saw Plaintiff. Id. at 65.
The November 17, 2009 treatment notes reflect that Plaintiff wanted to go ahead with Dr.
Webb’s recommended surgery. Id. In addition, on November 25, 2009, Plaintiff contacted
Dr. Webb directly and requested the recommended surgery. Id. Nonetheless, Dr. Webb
then questioned whether the recommended surgery would be adequate and recommended
a second opinion from a hand specialist.
On February 1, 2010, Dr. David M. Lamey, MD, a hand specialist, examined
Plaintiff. Id. at 119. Dr. Lamey recommended a CT scan in order to develop a treatment
plan. Id. at 123-24.
On February 26, 2010, Dr. Stander ordered a CT scan. Id. at 53. On March 3,
2010, Dr. Jere G. Sutton, a physician in Pueblo, Colorado, reviewed Plaintiff’s medical
records and verified that a CT scan was an appropriate recommendation. Id. at 45.
On March 22, 2010, Plaintiff had the CT scan. Id. at 47, 187. On April 21, 2010,
Dr. Lamey examined Plaintiff and issued a final recommendation stating:
MEMORANDUM DECISION AND ORDER- 5

I do not think he will benefit from therapy or other stretching
activities significantly. I think this is a surgical problem [sic]
will requires [sic] anterior and posterior soft tissue release at
the elbow. I have explained that I think he [sic] would be best
for him to wait until he is no longer incarcerated. This is
because his outcome would be highly dependent on his
postoperative management and postoperative therapy. I think
it would be difficult or impossible to accomplish a good
outcome while he is incarcerated. He seems to understand
this. He will contact me when he is no longer incarcerated.
Id. at 115-16.
SUMMARY JUDGMENT
A.

Standard of Law
Summary judgment is appropriate if a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See
id. at 248.
MEMORANDUM DECISION AND ORDER- 6

The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322).
Rule 56(e) authorizes the Court to grant summary judgment for the moving party
“if the motion and supporting materials–including the facts considered undisputed–show
that the movant is entitled to it.” The existence of a scintilla of evidence in support of the
non-moving party’s position is insufficient. Rather, “there must be evidence on which the
jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477
U.S. at 252.
In the instant case, summary judgment is not appropriate. Defendant Stander
argues that the medical records demonstrate, as a matter of law, that Dr. Stander was not
deliberately indifferent to Plaintiff’s medical needs. However, the Court’s review of the
medical records reflect a dispute of fact on this issue. As a matter of constitutional law,
the alleged failure to provide Plaintiff with any physical therapy while he was
incarcerated at ISCI could support a claim of deliberate indifference against Defendants
Amos and O’Connor, who were, in some part, responsible for Plaintiff’s medical care
while there. Similarly, as a matter of constitutional law and for the purposes of summary
MEMORANDUM DECISION AND ORDER- 7

judgment, after Plaintiff’s transfer to ICC, the initial failure to provide physical therapy
consistent with three previous doctor’s orders, the three-week delay in seeing a
physician’s assistant, and the three-month delay in seeing Dr. Stander, together, support a
reasonable inference that Dr. Stander was deliberately indifferent to Plaintiff’s medical
needs. Accordingly, summary judgment will be denied.
B.

The Eighth Amendment Deliberate Indifference Standard
To prevail on an Eighth Amendment claim regarding prison medical care, Plaintiff

must show that prison officials’ “acts or omissions [were] sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Hudson v. McMillian, 503
U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). The Supreme
Court has opined that “[b]ecause society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are ‘serious.’” Id.
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further significant
injury or the unnecessary and wanton infliction of pain; . . . [t]he existence
of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical condition that
significantly affects an individual's daily activities; or the existence of
chronic and substantial pain.
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds,
WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Deliberate indifference exists when an official knows of and disregards a serious
medical condition or when an official is "aware of facts from which the inference could
MEMORANDUM DECISION AND ORDER- 8

be drawn that a substantial risk of harm exists,” and actually draws such an inference.
Farmer v. Brennan, 511 U.S. 825, 838 (1994). Differences in judgment between an
inmate and prison medical personnel regarding appropriate medical diagnosis and
treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Vild,
891 F.2d 240, 242 (9th Cir. 1989).
Mere indifference, medical malpractice, or negligence alone will not support a
cause of action under the Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458,
460 (9th Cir. 1980). A mere delay in treatment does not constitute a violation of the
Eighth Amendment, unless the delay causes serious harm. Wood v. Housewright, 900
F.2d 1332, 1335 (9th Cir. 1990). The Ninth Circuit recently clarified that if medical
personnel have been “consistently responsive to [the inmate’s] medical needs, and there
has been no showing that the medical personnel had “subjective knowledge and conscious
disregard of a substantial risk of serious injury,” summary judgment is proper. Toguchi v.
Chung, 391 F.3d 1051, 1061 (9th Cir. 2004).
In the instant case, the undisputed facts reflect that Plaintiff had elbow surgery on
April 13, 2009. The medical records also reflect that Plaintiff’s elbow condition and lack
of mobility was readily observable and Plaintiff was prescribed pain medication for his
situation. Nevertheless, despite three separate requests for physical therapy while
Plaintiff was housed at ISCI, Plaintiff received no physical therapy either before or after
his transfer to ICC.

MEMORANDUM DECISION AND ORDER- 9

ICC suggests that, if Plaintiff’s condition worsened as a result of the lack of
physical therapy, it occurred while Plaintiff was housed at ISCI. Nonetheless, it is
equally plausible that Plaintiff’s condition deteriorated further after transfer.
Furthermore, despite the visible problem with Plaintiff’s elbow, his inability to
feed himself, and the on-going pain management, Plaintiff did not see a physician’s
assistant at ICC for nearly three weeks and did not see a doctor at ICC until September
11, 2009, nearly three months after transfer. At that time, Defendant Stander noted
Plaintiff’s severe mobility issues, yet x-rays were not taken for one month and an
orthopedic consultation did not take place for three months. When the orthopedic consult
occurred, it was too late for physical therapy and Dr. Webb recommended surgery as the
only viable treatment option.
Though delays in medical treatment alone do not support a deliberate indifference
claim, the undisputed facts support a reasonable inference that the failure to provide
timely physical therapy, both before and after transfer to the ICC, could have resulted in
further injury to plaintiff, unnecessary pain, and the necessity of an additional surgery to
correct the injury occasioned by the lack of medical attention.
In light of Plaintiff’s medical record, his visible limitations, and his consistent
reports of pain, the failure to provide Plaintiff with the treatment directed by Dr. Boyea
creates a dispute of fact that defeats summary judgment on Plaintiff’s deliberate
indifference claims. Given the acute and time-sensitive nature of Plaintiff’s injury, a
reasonable person could conclude that Defendant Stander’s failure to treat Plaintiff for
MEMORANDUM DECISION AND ORDER- 10

three months upon his transfer to ICC constituted deliberate indifference in violation of
the Eighth Amendment. Accordingly, Defendant’s motion for summary judgment must be
denied.
SERVICE ISSUES
The Initial Review Order directed the Clerk of the Court to forward a copy of the
Complaint, the Initial Review Order, and a Waiver of Summons to counsel for the Idaho
Department of Corrections, the Idaho Corrections Corporation, and the Corrections
Corporation of America. Id. The only Defendant to appear in this action is Defendant
Stander who appeared through counsel for the Idaho Corrections Corporation. See Dkt.
Nos. 9, 10, 13.
The Court has requested service addresses from Plaintiff, and Plaintiff has
responded in a timely manner to the Court’s requests. Nonetheless, neither O’Connor nor
Amos has been served. Accordingly, the Clerk of Court will issue summonses and
provide the United States Marshal Service with service addresses for Defendants Rory
O’Connor and Kat Amos, see Dkts. 32 and 33, who shall be served with a copy of the
docket, Plaintiff’s Complaint, the Initial Review Order, and the instant order. In addition,
the Clerk will send a copy of this order to counsel for the Idaho Department of
Correction, Paul Panther.
SETTLEMENT
This case is referred to United States Magistrate Judge Ronald E. Bush for a
settlement conference to be set after Defendants O’Connor and Amos have appeared
MEMORANDUM DECISION AND ORDER- 11

through counsel but no later than December 16, 2011. Defendants O’Connor and Amos
may elect to participate in the settlement conference but will not be ordered to do so at
this time.
ORDER
In accordance with the foregoing, IT IS HEREBY ORDERED:
1.

Defendant’s Motion for Summary Judgment (Dkt. 15) is DENIED.

2.

The Clerk of the Court is directed to issue summonses and provide the
United States Marshals Service with a copy of the docket, Plaintiff’s
Complaint, the Initial Review Order, and the instant order to be served upon
the following Defendants at the following addresses:
Kat Amos
5420 W. Franklin Rd., Ste. C
Boise, ID 83705

3.

Rory O’Connor
13150 W. Tersimmon Ln.
Boise, ID 83713.

The Clerk of the Court is also directed to send a copy of this Order to IDOC
counsel, Paul Panther at 1299 N. Orchard, Ste. 110, Boise, ID 83706.
DATED: June 20, 2011

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER- 12