Orr v. Correction Corporation of America et al

Filing 63

MEMORANDUM DECISION AND ORDER granting 40 Motion for Summary Judgment; granting in part and denying in part 58 Motion to Strike; Plaintiff's Amended Complaint (Dkt. 17) is DISMISSED; The case is ordered closed. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DENNIS A. ORR,
Case No. 1:10-CV-00034-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN PHILLIP VALDEZ, and
KLINT STANDER, M.D.;
Defendants.

Now pending is Defendants’ motion for summary judgment. (Dkt. 40).
Defendants argue that Plaintiff’s claims cannot be factually supported and must be
dismissed accordingly. Memorandum in Support, 7-12 (Dkt. 40-1). Also pending is
Defendants motion to strike much of Plaintiff’s supporting documentation as inadmissible
hearsay and irrelevant. (Dkt. 58). Having thoroughly reviewed the record in this case,
and otherwise being advised, the Court enters the following Order granting the motion to
dismiss and granting in part and denying in part the motion to strike.
Background
On December 17, 2010, the Court entered an Initial Review Order allowing
Plaintiff to proceed with eight amendment medical claims against two named Defendants,
Valdez and Stander. (Dkt. 19). Plaintiff claims that Defendant Philip Valdez, warden at
MEMORANDUM DECISION AND ORDER - 1

the Idaho Correctional Center (ICC), and Defendant Klint Stander, a doctor at ICC, have
denied him adequate medical care solely for cost saving purposes in violation of the
Eighth Amendment. Amended Complaint (Dkt. 17).
Plaintiff states that he has severe back pain due to degenerative disc disease and
alleges that he has been denied effective treatment. Plaintiff finds it difficult to walk,
sleep, or perform other basic life activities. He contends that several doctors have told
him that he needs to have his knee replaced, but Stander informed him that CCA will not
pay for it. Plaintiff further asserts that Stander has denied him effective pain medication,
despite his repeated requests.
Plaintiff also has heart disease and states that the drugs that prison medical
providers have used to treat this condition are not effective. According to Plaintiff, the
ineffective medication required Plaintiff’s heart to work too hard, increasing his blood
pressure. Plaintiff now has an enlarged heart and is short of breath all of the time. He also
has early kidney failure, poor hearing, and poor vision. He alleges that none of his
physical ailments are being adequately treated, in violation of his right to be free from
cruel and unusual punishment under the Eighth Amendment.
In his original complaint, Plaintiff also complained of the food at the prison. He
alleged that he had lost 40 pounds in 3 months because the food at ICC is “unfit for
human consuption [sic].” Id. at 26. He alleged that inmates have found food labels that
state as much, and that when they showed them to Defendant Valdez, the labels
“disappeared.” Id.
MEMORANDUM DECISION AND ORDER - 2

Motion to Strike
Defendants move to strike much of Plaintiff’s supporting evidence as inadmissible
hearsay and irrelevant. With regard to hearsay, Defendants argue that “[m]uch of
Plaintiff's filings contain inadmissible hearsay, the majority of which is found in
Plaintiff's own affidavit.” Motion to Strike, 2 (Dkt. 58-1). Additionally, Defendants point
to several portions of third party declarations containing inadmissible hearsay, including
citations to unidentifiable inmates and a “Man on Speakerphone.” Id.
Defendants’ relevancy objections relate to Plaintiff’s attempts at introducing
evidence of medical treatment he received prior to being housed at ICC. Specifically,
Defendants contend that “[w]hile Plaintiff's past medical condition may be relevant to
highlight any change in his condition, the paragraphs Defendants cite here only serve to
add to Plaintiff's narrative that he has never received appropriate medical care.” Id. at 3.
Thus, Defendants seek that the Court “strike paragraphs 13-18 of the Affidavit of Dennis
A. Orr (Dkt. 47-3) in that they are irrelevant to his current care at ICC.” Id.
Defendants also move to strike Plaintiff's inclusion of the exhibit entitled: “Dr.
Agler -No Credibility.” Defendants argue that because “credibility determinations are not
appropriate in a motion for summary judgment, any evidence provided specifically to
attack an affiant’s credibility is irrelevant and improper and Defendants request that such
be stricken from the record.” Motion to Strike, 3-4 (Dkt. 58-1).
Finally, Defendants request that various affidavits of other inmates’ narratives of
their medical care at ICC be stricken as irrelevant. Id. Defendants argue that “[t]hese
MEMORANDUM DECISION AND ORDER - 3

affidavits have absolutely no connection with Plaintiff, Plaintiff's medical condition, or
Plaintiff's medical treatment at ICC.” Id.
Plaintiff responds by letter, seeking leave to file a sur-reply to Defendant’s reply in
support of summary judgment. (Dkt. 62). In sum, Plaintiff contends that Defendants are
telling “one lie after another” and by moving to strike his affidavits, they are “furthering
their dishonesty.” Id. Plaintiff concludes by inferring that Defendants are withholding
evidence that is favorable to Plaintiff’s claims. Id.
A trial court can only consider admissible evidence in ruling on a motion for
summary judgment. Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d
1179, 1181 (9th Cir.1988). Federal Rule of Civil Procedure 56(e) requires that any
affidavit be made on personal knowledge, that the affiant be competent to testify to the
matters stated therein, and that sworn or certified copies of all papers referred to in an
affidavit be attached thereto. Id. In a summary judgment motion, documents
authenticated through personal knowledge must be “attached to an affidavit that meets the
requirements of Fed.R.Civ.P. 56(e) and the affiant must be a person through whom the
exhibits could be admitted into evidence.” Canada v. Blain's Helicopters, Inc., 831 F.2d
920, 925 (9th Cir. 1987). “A document can be authenticated under Federal Rule of
Evidence 901(b)(1) by a witness who wrote it, signed it, used it, or saw others do so.”
Wright & Gold, Federal Practice & Procedure: Evidence § 7106, 43 (2000).
Because of his status as pro se litigant, the court is compelled to search the record
for evidence supporting his claims. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004)
MEMORANDUM DECISION AND ORDER - 4

(“we must consider as evidence in his opposition to summary judgment all of [Plaintiff’s]
contentions offered in motions and pleadings, where such contentions are based on
personal knowledge and set forth facts that would be admissible in evidence ...”). Such
evidence need not be in admissible form, but merely susceptible to being placed in such
form at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); See also Aholeli v.
Hawaii Dept. of Public Safety, 220 Fed. Appx. 670 (9th Cir. 2007).
The court has reviewed the alleged hearsay statements in question and finds
Defendant’s objections well-founded. The Court finds that the statements at issue
constitute hearsay and do not fit within any exception to the hearsay rule. The Court
further believes that Plaintiff is offering these statements for the truth of the matter
asserted. Likewise, the hearsay statements submitted by Plaintiff are stricken from his
affidavit, and the Court will not consider those statements in ruling on the motion for
summary judgment. Further, the exhibit marked “Dr. Agler -No Credibility,” and the
various accounts from non-party inmates will be striken as irrelevant. The court has
reviewed the statements in question and does not find any of the challenged paragraphs
necessary or beneficial in resolving any of the claims before the court.
The portions of Plaintiff’s affidavit relating to care he received while at ISCI ,
paragraphs 13–18, will be considered. As Defendants concede, Plaintiff’s past medical
condition may be relevant to highlight any change in his condition.” The court is
cognizant that Plaintiff”s claims do not encompass medical treatment he received while
housed at ISCI, and will review Plaintiff’s evidence with a mindful eye.
MEMORANDUM DECISION AND ORDER - 5

Motion to Dismiss
Defendants argue that the facts on the record “demonstrate a lack of deliberate
indifference,” pointing to the fact that Plaintiff did receive treatment, even if it was not
the treatment that he wanted. Id. at 11-14. Defendants further argue that Defendant
Valdez should be dismissed because Plaintiff cannot demonstrate that Valdez personally
participated in any of the decisions regarding Plaintiff’s medical care. Id. at 15. Finally,
Defendants submit that Plaintiff’s claims relating to the prison food, made in his original
complaint (Dkt. 3), should be dismissed as waived because Plaintiff failed to include them
in his amended complaint. Id. at 17. In response, Plaintiff maintains that there are
genuine issues of material fact preventing dismissal. Response, 1-4 (Dkt. 47). He argues
that the affidavits in support of granting summary judgment are misleading and untrue.
Id. at 5 In support of this contention, Plaintiff has provided the Court with a number of
affidavits from prisoners claiming to have received inadequate medical care, including
one from himself. See Plaintiff’s Exhibits (Dkts. 47-1–47-6). Plaintiff claims that
Defendants have refused to provide him with a complete set of medical records, which
makes responding to Plaintiff’s motion difficult. Nonetheless, Plaintiff has included a
very detailed factual account of every dispute he has with Defendant’s accounting of the
underlying facts.
1.

Standard
Summary judgment is appropriate where 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
MEMORANDUM DECISION AND ORDER - 6

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.
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); 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). The Court must consider “the cited materials,”
but it may also consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
MEMORANDUM DECISION AND ORDER - 7

in support of or opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e)(3) 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.
A.

Eighth Amendment Medical Claims

To survive summary judgment, plaintiff must allege a violation of rights protected
by the Constitution or created by federal statute proximately caused by conduct of a
person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991). 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
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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
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 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,

MEMORANDUM DECISION AND ORDER - 9

1335 (9th Cir. 1990). If the defendants are able to show that 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,” a plaintiff’s claims may be dismissed by summary
judgment prior to trial. Toguchi v. Chung, 391 F.3d 1051, 1061 (9th Cir. 2004).
The Eighth Amendment does not provide a right to a specific treatment. See
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The plaintiff] is not entitled to
demand specific care. She is not entitled to the best care possible. She is entitled to
reasonable measures to meet a substantial risk of serious harm to her.”). A prison
doctor’s recommendation for a less costly treatment is not deliberate indifference unless
the recommendation “was so inadequate that it demonstrated an absence of professional
judgment, that is, that no minimally competent professional would have so responded
under those circumstances.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir.
1998).
In Estelle v. Gamble, supra, Inmate Gamble suffered a back injury at work when a
600-pound bale of hay fell on him. Doctors and other medical providers at the prison
prescribed rest and a variety of medications, including different pain relievers and muscle
relaxers. Gamble argued that the medical providers were deliberately indifferent because
they should have done more to diagnosis his back problem, such as x-raying his back.
The Court disagreed, reasoning:
Gamble was seen by medical personnel on 17 occasions spanning a 3-month
MEMORANDUM DECISION AND ORDER - 10

period: by Dr. Astone five times; by Dr. Gray twice; by Dr. Heaton three
times; by an unidentified doctor and inmate nurse on the day of the injury; and
by medical assistant Blunt six times. . . . The doctors diagnosed his injury as
a lower back strain and treated it with bed rest, muscle relaxants and pain
relievers. Respondent contends that more should have been done by way of
diagnosis and treatment, and suggests a number of options that were not
pursued. The Court of Appeals agreed, stating: “Certainly an x-ray of
(Gamble's) lower back might have been in order and other tests conducted that
would have led to appropriate diagnosis and treatment for the daily pain and
suffering he was experiencing.” 516 F.2d, at 941. But the question whether an
X-ray or additional diagnostic techniques or forms of treatment is indicated is
a classic example of a matter for medical judgment. A medical decision not to
order an X-ray, or like measures, does not represent cruel and unusual
punishment. At most it is medical malpractice, and as such the proper forum
is the state court under the Texas Tort Claims Act. The Court of Appeals was
in error in holding that the alleged insufficiency of the medical treatment
required reversal and remand. That portion of the judgment of the District
Court should have been affirmed.
429 U.S. at 97-98.

Similarly, in Toguchi v. Chung, supra, the Ninth Circuit underscored the
difference between medical malpractice, which is not actionable under the United States
Constitution, and deliberate indifference, which is an Eighth Amendment violation.
Particularly, a plaintiff must show that the medical providers subjectively had knowledge
of a serious risk to the plaintiff, and chose to disregard that risk. In Toguchi, Dr. Chung
had treated Inmate Toguchi several times in the past before his untimely death in prison.
The final time she treated him, she prescribed a course of medication that expert
witnesses for the plaintiffs (Toguchi’s surviving parents) opined caused a toxic level of
drugs in his bloodstream, causing his death.

MEMORANDUM DECISION AND ORDER - 11

The Ninth Circuit, however, rejected the plaintiffs’ expert witness opinions that the
treating physician, Dr. Chung had been deliberately indifferent. To reach this result, the
Court focused particularly on what Dr. Chung knew and believed before her allegedly
wrongful acts or omissions. In response to an argument that Dr. Chung should have
considered the prescription drug Cogentin an excessive risk to the deceased inmate’s
health, the Court opined: “Because she did not believe that Cogentin use presented a
serious risk of harm to Keane, her conduct cannot constitute deliberate indifference.” Id.
at 1058 (emphasis added). Similarly, the Court noted,
It does not matter whether Dr. Chung's assumptions and conclusions were
reasonable. Rather, so long as she was not subjectively aware of the risk that
Keane could be suffering from a drug overdose, and disregarded that risk, she
was not deliberately indifferent. Farmer, 511 U.S. at 837, 114 S.Ct. 1970.
Id. at 1060 (emphasis added). Summary judgment for Dr. Chung was thus appropriate.
Analysis
It is beyond dispute that Defendant Stander treated Plaintiff a number of times
during his employment with ICC as Medical Director and Lead Physician, from
September 2008 thru March 2011. Stander Affidavit, 2 (Dkt. 40-3). During this time,
Plaintiff was given a variety of exams and tests that showed arthritis in his left hand, left
knee, and back. Also during this time, medical staff prescribed Plaintiff numerous
medications for pain including ultram, tramadol, baclofen, flexeril, neurontin, and
skelaxin. Id. at 2-3; See also Exhibit A to Thacker Affidavit (“Medical Records”), 640653, 656, 657, 662, 664-666, 669, 670, 674-727, 772, 785-839, 862,864-873, 888, 889

MEMORANDUM DECISION AND ORDER - 12

(Dkt. 41). According to Plaintiff’s medical records, these medication have yielded some
improvement in the Plaintiff’s pain management.1 However, the records also indicate that
Plaintiff's pain may never fully resolve. Id. Further, Stander submits evidence that
Plaintiff’s “back was in this degenerated condition before he ever began to treat Plaintiff,”
with records showing “severe disc disease, L-5 spine” sometime in 1995. Medical
Records, 586 (Dkt. 41).
In October 2008, Stander arranged for Plaintiff to see a neurology specialist
concerning his complaints of back pain and right leg pain. Medical Records, 761-762
(Dkt. 41-2). He was seen by Dr. Richard W. Wilson on October 7, 2008. Id. In addition
to the physical examination, Wilson also analyzed an MRI taken of Plaintiff's back on
July 29, 2008. Id. Wilson noted that Plaintiff was no longer experiencing the right leg
pain, but diagnosed him with “moderately severe multilevel degenerative lumbar spine
disease.” Wilson’s proscribed course of treatment was for “conservative management.”
Id. Wilson specifically noted that Plaintiff mentioned wanting lumbar surgery, however,
Wilson felt that it was “not a realistic expectation” that such an operation would help
Plaintiff deal with his 15-year history of back pain. Id.
In May 2009, when Plaintiff complained of lower abdominal pains, Dr. Stander
ordered that Plaintiff receive a consultation from Dr. Chris Kantarian, a gastrointestinal
specialist. Medical Records, 763-768 (Dkt-41-2). As a result of the consult, a

1

Ultram and tramadol are the same drug. The AARP Guide to Pills, 897 (Maryanne
Hochadel, ed., 2006).
MEMORANDUM DECISION AND ORDER - 13

colonoscopy was advised and ultimately performed on July 15, 2009. Id. at 744-745. The
colonoscopy revealed moderate diverticulitis, but there was no evidence of any
inflammatory changes or neoplasia. Id. at 760. Kantarian, who performed the
colonoscopy, stated that Plaintiff’s abdominal pains were probably a result of pelvic floor
spasms. Id. Kantarian prescribed muscle exercises and relaxation techniques to Plaintiff.
Id.
On Jun 4, 2010, Stander ordered a new MRI which was performed on June 28,
2010, by Dr. Daniel Ririe at St. Luke's Regional Medical Center. Medical Records, 652,
623-625 (Dkt. 41). The MRI revealed degenerative disk disease, and “a small central
disk bulge and tiny central disk protrusion.” Id. at 623-625. However, it was noted that
“the canal appears grossly patent at all levels,” which means it was “open and
unobstructed notwithstanding the bulge and protrusion.” Id., Stander Affidavit, 4 (Dkt.403).
Stander ordered an orthopedic consult with Dr. Jared Tadje, an orthopedic
specialist, on June 8, 2010. Medical Records, 651 (Dkt. 41). At the same time, Stander
also ordered x-rays for Plaintiff's left knee and right foot. Id. The consult was performed
on June 28, 2010. Id. at 739-42 (Dkt. 41-2). Tadje recommended a medial unloader brace
for Plaintiff’s left knee, a custom orthotic and gel pad for his right foot, and a back brace.
Id. at 757.
Plaintiff received another consultation on July 9, 2010, with Dr.Christian Gussner,
a specialist in physical medicine and rehabilitation. Id. at 749-54. This consultation was
MEMORANDUM DECISION AND ORDER - 14

made to specifically address Plaintiff's back pain. Id. Gussner recomended that Plaintiff
receive steroidepidural injections to alleviate his back pain. Id. Gussner concluded that a
surgical consult would be reasonable if those injections did not improve Plaintiff's pain
management. Id. On August 9, 2010, Plaintiff received another consultation from Gussner
to offer a second opinion regarding Plaintiff's request for lumbar surgery. Like Wilson,
Gussner did not advise lumbar surgery. Id. at 666 (Dkt. 41-1). Instead, he again
recommended that Plaintiff wait to see what effect the epidural steroid injections had on
his pain management before any discussion of surgery. Id. at 664.
According to the record, and per Tadje's recommendations, Stander ordered a
lumbar corset back brace on July 2, 2010, that Plaintiff received on July 22,2010. Id. at
649, 733-738. Stander also ordered epidural steroid injections as recommended by
Gussner, on July19, 2010, and again October 28, 2010. Id. at 650. Additionally, Plaintiff
received three steroid injections from Gussner on August 20, 2010, November 19, 2010,
and June 17, 2011. Id. at 746-55. Plaintiff seemed to have some relief from pain as a
result of these injections, lasting about a month each. Id.
With regards to Plaintiff’s left knee pain, Stander ordered an x-ray of his knee on
June 4, 2010, which was performed on June 7, 2010 by Dr. John Griffith. Id. at 652.
Griffith found moderate degenerative disease with bone spurs. Id. at 674-75.
On September 24, 2010, Stander measured Plaintiff’s knee and ordered a medial
unloader knee brace from Norco. Id. at 648. However, due to some ordering confusion,
an incorrect brace was delivered, of which Plaintiff refused delivery. Id. at 641, 842. Dr.
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Agler ordered a refitting on January26 and 27, 2011. Id. at 641-42, 729. After some
difficulty locating the appropriate unloader brace, Plaintiff eventually received one on
April 26, 2011. Id. at 856. The brace was sent for repairs on July19, 2011. Eventually,
Plaintiff received an unloader brace that he was satisfied with on August 2, 2011. Id. at
863. During that time, Stander and Agler ordered multiple doses of kenalog to alleviate
arthritic pain in Plaintiff's fingers and knee. Id.
Shoe inserts were ordered for Plaintiff on June, 4, 2010. Id. at 652. When
Plaintiff reported that the insoles did not help him, on July 2, 2010, Stander ordered
special orthopedic shoes be made specifically for Plaintiff. When he received the shoes
on September 3, 2010, Plaintiff was not satisfied with how the shoes fit and Stander
ordered re-evaluation. Id. at 649. Plaintiff has requested his shoes be redone various
times, finally accepting the orthotics on July 19, 2011. Id. at 664, 879, 863.
Plaintiff has made various specific requests for other prescriptions, most all of
which have been granted. See id. at 645, 649-59, 670, 845. Plaintiff stated he is allergic
to adalat which he said caused tachycardia; amlodipine which he said caused bradycardia;
lopressor which he said caused abdominal pain; and plendil which he said caused a rash.
ICC has avoided prescribing these medications. Id. There is no evidence to suggest that
Defendants ever prescribed any less expensive medication for Plaintiff’s blood pressure,
keeping Plaintiff on those he has demanded. Id., see also Stander Affidavit, 6.
In addition to the treatment and tests Plaintiff has received for his back, knee, and
feet, he has also been treated on numerous other occasions for, among other things,
MEMORANDUM DECISION AND ORDER - 16

kidney functioning, blood pressure, tuberculosis, cardiopulonary disease, and an enlarged
heart. Plaintiff has also been treated for hearing loss, having had his hearing repaired, and
eventually replaced with two new hearing aids in October 2011. Plaintiff has had several
follow-up anointments for a variety of medical issues, including those now before the
court.
Plaintiff responds to Defendant’s motion arguing that they are being deceptive
with the Court by not including complete records and medical files. Plaintiff further
submits that Defendants have not supplied him with complete discovery. With regard to
Defendants’ statement of undisputed facts (Dkt. 41-2), Plaintiff takes issue with the
completeness of quotations, arguing that Defendants are trying to deceive the court. For
his part, Plaintiff provides context and to Defendants’ accounts and his perspective.
However, Plaintiff’s account does not change the underlying narrative:
To prevail, Plaintiff must show that the prison official acted with a sufficiently
culpable state of mind. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). The
official “must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists and must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). However, deliberate indifference may be inferred
“only when the medical professional’s decision is such a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate that the person
responsible did not base the decision on such a judgment.” Estate of Cole by Pardue v.
Fromm, 94 F.3d 254, 261-262 (7th Cir. 1996).
MEMORANDUM DECISION AND ORDER - 17

Plaintiff’s disagreement with Defendants’ choices regarding treatment and of pain
medication is simply that: a disagreement. As such, it is not actionable under § 1983.
Sanchez, 891 F.2d at 242. Apart from his own subjective belief, plaintiff has submitted
no evidence that any action or failure to act by Defendants seriously aggravated
Plaintiff’s condition(s). The choice of medications and treatment plan to use to treat
Plaintiff’s pain are a classic examples of the exercise of professional medical judgment.

No reasonable fact finder could conclude from the record presented that either
defendant was deliberately indifferent to Plaintiff’s serious medical needs. Defendants
never stopped treating Plaintiff, and Plaintiff offers no evidence from which a fact finder
could conclude that this treatment was substantially below standard medical judgment.
Accordingly, Defendant’s motion for summary judgment will be granted.
ORDER
It is hereby ORDERED:
1.

Defendant's Motion to Strike (Dkt. 58) is GRANTED in part and DENIED
in part, as set fourth above;

2.

Defendants's Motion for Summary Judgment (Dkt. 40) is GRANTED;

3.

Plaintiff's Amended Complaint (Dkt. 17) is DISMISSED;

MEMORANDUM DECISION AND ORDER - 18

4.

The case is ordered CLOSED.

DATED: March 8, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 19