Storm v. Correctional Medical Services P.A.'s A-Z et al

Filing 90

MEMORANDUM DECISION AND ORDER. IT IS ORDERED Plaintiff's Motion to Compel 88 is DENIED. Defendants' Motion for Summary Judgment 78 is GRANTED. Allclaims that have not previously been dismissed are now DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICKIE STORM,
Case No. 1:10-cv-00319-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CORRECTIONAL MEDICAL
SERVICES, n/k/a CORIZON, INC.;
MICHAEL TAKAGI, P.A.; CATHY
FITZGERALD, P.A.; DR. LOIS
ADRIAN; DR. PATMAS; SETH
YOURKETTER, P.A.; CARTNEY
RICH; CONNIE SMOCK; ANITA
TRAVIS; LARRY L. HYNES; JAN
EPP; DIANA OBENAUER; AND JEFF
SHAHAN,
Defendants.

Pending before the Court is a Motion for Summary Judgment filed by the
remaining Defendants: Correctional Medical Services (now known as Corizon, Inc.)1; Jeff
Shahan; Michael Takagi; and Connie Smock. (Dkt. 78) Also pending is Plaintiff’s Motion
to Compel. (Dkt. 88.)
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, this matter
shall be decided on the record before this Court without oral argument. D. Idaho Loc.
1

For ease of reference, the Court will refer to this Defendant as “Corizon.”

MEMORANDUM DECISION AND ORDER - 1

Civ. R. 7.1. For the reasons that follow, the Court concludes that there is no genuine issue
of material fact and that Defendants are entitled to judgment as a matter of law.
PLAINTIFF’S MOTION TO COMPEL
Plaintiff has filed a Motion to Compel, arguing that Defendants have failed to
produce certain documents requested by Plaintiff in discovery. (Dkt. 88.) Discovery
closed on May 15, 2013. (See Dkt. 80 at 4.) However, Plaintiff filed his Motion to
Compel on June 27, 2013, after the close of discovery and after Defendants filed their
Motion for Summary Judgment. Further, Defendants provided Plaintiff with their
response to his requests for the production of documents on June 20, 2012, over a year
before Plaintiff filed his Motion to Compel. (See Exhibit to Motion to Compel, Dkt. 88-2
at 10.) Plaintiff has not provided any explanation for his delay in filing the Motion, and
the Motion will therefore be denied.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1.

Introduction
Plaintiff, a prisoner in the custody of the Idaho Department of Correction

(“IDOC”), filed his initial Complaint in this matter on June 24, 2010. (Dkt. 3.) In the
Complaint, Plaintiff brought Eighth Amendment claims and medical malpractice claims
against the following Defendants: the IDOC; Brent Reinke, Director of the IDOC;
Corizon, the corporation that provides prison medical care; Jeff Shahan, Health Services
Administrator for Corizon; the Idaho State Correctional Institution (“ISCI”), and various
unidentified medical providers. (See Dkt. 3, 7.) In its Initial Review Order, the Court
MEMORANDUM DECISION AND ORDER - 2

allowed Plaintiff to proceed (1) on his section 1983 claim against Defendant Corizon, and
(2) on his state law negligence claims against Defendant Corizon and Shahan. (Dkt. 11.)
Over a year later, Plaintiff filed an Amended & Supplemental Complaint (Dkt. 48),
which the Court construed as a motion to amend the complaint. (Dkt. 65.) The Amended
& Supplemental Complaint added several Defendants who had previously been
unidentified, but it did not contain any specific allegations against Defendants Corizon or
Shahan. Plaintiff has since informed the Court that he believed he was not required to
include all of his allegations in the Amended & Supplemental Complaint, but only those
against the new Defendants. (Resp. to Mot. for Summ. Judg. (“Response”), Dkt. 84, at 2.)
The Court granted the motion to amend and allowed Plaintiff to proceed against
additional Defendants Michael Takagi, Cathy Fitzgerald, Dr. Lois Adrian, Dr. Patmas,
Seth Youstetter, Cartney Rich, Connie Smock, Jan Epp, and Diana Obenauer. (See Dkt.
65 at 1-3.) However, claims against Fitzgerald, Adrian, Patmas, Youstetter, Rich, Epp,
and Obenauer were later dismissed without prejudice because Plaintiff had failed to
provide the Court with service addresses for those Defendants. (Dkt. 86.) Therefore, only
Defendants Corizon, Shahan, Takagi, and Smock remain in this case.
2.

Material Facts
This section includes facts that are undisputed and material to the resolution of the

issues in this case. Where material facts are in dispute, the Court has included Plaintiff's
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell
MEMORANDUM DECISION AND ORDER - 3

two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”)
Plaintiff alleges generally that Corizon and its medical staff make medical
decisions based on how much a given medical treatment will cost. He also includes more
specific allegations regarding his particular ailments.
The events at issue in this case occurred while Plaintiff was incarcerated at ISCI
and involve Plaintiff’s ongoing and severe back, leg, and foot pain. Plaintiff was
transferred to ISCI from the Canyon County Detention Center (“CCDC”) and arrived at
the Reception and Diagnostic Unit (“RDU”) of ISCI on March 18, 2009. (Am. & Suppl.
Compl., Dkt. 48, at 3; Affidavit of Michael Takagi (“Takagi Aff.”), Dkt. 78-3 at ¶ 8.)
Defendant Michael Takagi, a physician’s assistant, has described the medical process
involved when a new inmate arrives at the RDU:
Generally, when an inmate arrives at the RDU, the inmate
undergoes a medical history and screening, which includes
completion of an inmate questionnaire, taking of vital signs,
current medical conditions, medical history, and
[tuberculosis] history, current medications, allergies, and
evaluation of need for referrals. . . . Laboratory tests for
[complete blood count], [comprehensive metabolic panel],
HIV, and [rapid plasma reagin] would also be reviewed.
(Takagi Aff. ¶ 8.)
On Plaintiff’s initial screening form, it was noted that Plaintiff had already had xrays for his neck and back, and that he suffered from numbness in his legs and arthritis in

MEMORANDUM DECISION AND ORDER - 4

his lower back.2 (Id. & Ex. A at SICI 411.) When he arrived at ISCI Plaintiff was taking
magnesium oxide and Flexeril, a muscle relaxant. (Id.) Defendant Takagi gave a verbal
order for Plaintiff to continue to receive those medications for seven days. (Id. at SICI
112.) Plaintiff states that he had two medical memos from CCDC with him in the RDU,
one allowing him to wear his personal shoes and another prescribing him a bottom bunk.
(Am. & Suppl. Compl., Dkt. 48, at 12; Response, Att. B.) Although Defendants dispute
this allegation, the Court accepts it for purposes of this decision.
A.

Back and Leg Pain

P.A. Takagi performed the initial physical evaluation of Plaintiff two days later on
March 20, 2009. (Takagi Aff. ¶ 10.) Plaintiff claims that Takagi “stopped all memos and
medications from Canyon County Jail.” (Am. & Suppl. Compl. at 3.) According to
Takagi’s testimony and notes, the Plaintiff’s upper and lower neurological reflexes were
absent,” he was experiencing back pain, and he “had decreased reflexes globally due to
Magnesium oxide.” (Takagi Aff. ¶ 10 & Ex. A at SICI 125.) Therefore, Takagi
discontinued the magnesium oxide and prescribed ibuprofen. (Id. ¶ 10 & Ex. A at SICI
112.)
Takagi noted “that the patient had a history of Hepatitis B exposure, but that he
had a negative antigen, which means that he had been exposed in the past and had been

2

The results of the x-ray, taken while Plaintiff was in the CCDC, showed that Plaintiff
had “minimal anterior hypertrophy at the lower lumbar levels from L1 through L5 with some
interspace narrowing at the L5-S1 level. The other levels [were] preserved and there [was] no
compression.” (Response, Att. B at SICI 158.)
MEMORANDUM DECISION AND ORDER - 5

treated and immunized for it.” (Id. ¶ 10.) Plaintiff had a positive tuberculosis skin test, or
PPD test, but Takagi states that Plaintiff had already been treated and that more treatment
was unnecessary. (Id.) Plaintiff did not exhibit any signs of radiculopathy or sciatic
impingement. (Id.) Takagi also requested Plaintiff’s medical records from the CCDC and
enrolled Plaintiff in the chronic care clinic for a follow-up appointment in three months
due to Plaintiff’s pain. (Id. & Ex. A at SICI 112.)
In addition to alleging that this initial evaluation constituted deliberate
indifference, Plaintiff claims that his medical treatment for his back pain thereafter was
substandard as well. (Compl., Dkt. 3, at 4-10.) On April 24, 2009, Dr. Lois Adrian
examined Plaintiff and re-ordered Plaintiff’s medical records from CCDC. (Takagi Aff.,
Ex. A at SICI 112.) At this appointment, Plaintiff stated that he did not want to take
ibuprofen for pain because it would destroy his liver and that he wanted “pain pills and
muscle relaxers.” (Id. at SICI 125.) Dr. Adrian prescribed naproxen for pain, specifically
noting that Plaintiff should not receive anything stronger. (Id.) Plaintiff was referred for
another follow-up appointment in the chronic care clinic. (Id.)
On May 19, 2009, Defendant Takagi again evaluated Plaintiff, who complained of
continuing leg and back pain. (Id. at ¶ 11 & Ex. A at SICI 124.) Plaintiff’s medical
records had still not arrived from CCDC. Takagi noted that Plaintiff was not in any acute
distress and reported no pain “on or off the examination table” or “when lying down or
sitting up.” (Id.) Plaintiff did report pain in his paraspinous muscles and “some pain
radiating down the left leg from the mid buttocks.” (Id.) Plaintiff told Takagi, “I want
MEMORANDUM DECISION AND ORDER - 6

pain meds. My doctor in Canyon County said I should be on pain meds even though I am
an addict.” (Id.) Takagi assessed Plaintiff with “low back pain and questions of sciatica,”
and ordered naproxen and Tylenol. (Id.) Finally, Takagi ordered an x-ray and a follow upappointment “on an as-needed basis or if the x-ray were abnormal.” (Id.) An x-ray of
Plaintiff’s spine was conducted on May 22, 2009. (Id., Ex. A at SICI 124.) There is
nothing in the medical records submitted by the parties that indicate an abnormality.
Plaintiff had another appointment with Dr. Adrian on June 18, 2009. (Id. at SICI
111.) Dr. Adrian prescribed Indocin (a pain medication used to treat osteoarthritis and
rheumatoid arthritis) and physical therapy. Plaintiff was seen again less than a week later,
when an unidentified medical staff member prescribed Robaxin (a muscle relaxant),
Vicodin, and the corticosteroid prednisone. (Id.) It is unclear how long Plaintiff took the
Vicodin and Robaxin, but the medical records indicate that it was only for a limited time.
(Response, Att. B at SICI 117; 119.)
Plaintiff was treated with physical therapy in several sessions until the therapist
stated on September 1, 2009, that further treatment should wait until Plaintiff was given
an MRI. (Compl. at 4-5; Response, Att. B at SICI 120, 121.) Plaintiff claims that various
medical staff delayed the MRI until March 2010. (Am. & Suppl. Compl. at 18.)
On September 23, 2009, Plaintiff was seen by P.A. Catherine Fitzgerald. She noted
that Plaintiff was doing the stretches he learned in physical therapy but that his back and
leg were still sore. (Response, Att. B at SICI 120.) P.A. Fitzgerald evaluated Plaintiff
again on October 16, 2009. At this appointment, Plaintiff complained that his current pain
MEMORANDUM DECISION AND ORDER - 7

medication was not working, but that he “felt great” when he had been on Vicodin and
that he “did well” on prednisone. (Id.) P.A. Fitzgerald noted that Plaintiff had right
sacroiliac joint pain with radiopathy. (Id.)
On October 19, 2009, Dr. Michael Patmas suggested a sacroiliac joint block to
ease Plaintiff’s pain. (Id. at SICI 147.) On October 21, P.A. Fitzgerald requested a
consultation with an outside medical provider, Dr. Heckard, regarding Dr. Patmas’s
suggestion of injecting ATP (adenosine triphosphate), which is used to treat nerve pain,
into Plaintiff’s sacroiliac joint. (Id. at SICI 108-09.) Fitzgerald also scheduled the
injection for a future date. (Id.)
On October 28, 2009, Dr. Heckard responded to P.A. Fitzgerald’s consultation
request, stating that “proper SI joint injection is done under fluoroscopic guidance or CT
to ensure proper needle placement, a procedure not done [at Dr. Heckard’s office]. Also it
is better to do SI joints [with] ambulatory sedation [and] ECG monitoring.” (Id. at SICI
147.) It appears that P.A. Fitzgerald then cancelled the scheduled procedure, but, for some
reason, another consultation request was sent the next day. (Id. at SICI 108, 144.) The
responding individual3 stated that “[t]he standard of car [sic] for proper injection of SI
joint is image guided.” (Id. at SICI 144.)
P.A. Takagi evaluated Plaintiff on November 10, 2009. Takagi “noted that
[Plaintiff] was complaining of right rear thigh pain that was not continuous, numb or

3

The signature of this individual is illegible, though it could have been Dr. Heckard.

MEMORANDUM DECISION AND ORDER - 8

tingling.” (Takagi Aff. ¶ 12.) The pain “shot to the back of the right thigh one to four
times a day when [Plaintiff] moved quickly.” (Id.) Plaintiff admitted to Takagi that he
played racquetball and stated, “You guys have turned me into a cocktail here. I don’t
think anything has worked except the Vicodin.” (Id. & Ex. A at SICI 117.) Plaintiff
“moved around the room and on and off the table easily.” (Id. ¶ 12.) Plaintiff’s back had a
full range of motion “with no spasm or tenderness except for the sacroiliac joints
bilaterally.” (Id.) His “[d]eep tendon reflexes were normal bilaterally and he showed good
strength and sensation.” (Id.) Takagi’s “assessment was lower back pain with likely
sacroiliac joint arthritis and occasional sciatica,” but he noted that Plaintiff “was
significantly improved from his initial exams.” (Id.) Plaintiff “agreed to try Robaxin on an
as-needed basis” and said that “he would continue stretching and strength exercises as
those helped.” (Id.) Finally, Takagi decided to check whether Dr. Patmas “would inject
the sacroiliac joint on-site or offsite with Kenalog (a steroid) to address the patient’s
arthritis.” (Id.) Plaintiff’s medical records indicate that P.A. Takagi spoke with Dr.
Patmas on November 17, 2009, and that Dr. Patmas himself would administer the
injection. (Id., Ex. A at SICI 117.)
December 9, 2012, was the date that Plaintiff was scheduled for the joint injection.
(Id., Ex. A at SICI 4.) Plaintiff states that the injection was performed “at ISCI outpatient
clinic by Patmas,” that it “was not image guided,” and that it was done “basically with no
sedation.” (Response at 5.)
Plaintiff had an MRI on March 4, 2010, which apparently revealed a herniated
MEMORANDUM DECISION AND ORDER - 9

disc. (Am. & Suppl. Compl. at 18, 21.) Plaintiff underwent a laminectomy—a spinal
decompression surgery—on August 17, 2010. (Id. at 10, 21.) Plaintiff states that medical
staff at ISCI did not appropriately check and dress his surgical wound, that he developed
an infection as a result, and that he had to have a second surgery to fix the infection. (Id.
at 10, 22.)
B.

Foot Pain

Plaintiff also suffered from pain in his foot. When medical staff x-rayed Plaintiff’s
foot, they determined that although Plaintiff had some ligament damage, nothing was
broken. (Compl. at 7.) After two months without improvement, a foot and ankle specialist
took more x-rays and determined that Plaintiff’s foot was broken in three places. (Id. at 79.) Plaintiff underwent surgery to repair his foot, during which two of his toes were fused.
(Id.)
C.

Grievances

Plaintiff filed several administrative grievances to which Defendant Smock,
Corizon’s Regional Director of Nursing, responded as the appellate authority. The first
grievance, dated January 27, 2011, alleged that Plaintiff had overheard medical staff
discussing another inmate’s medical history and opining that Corizon was understaffed
“and not able to meet medical needs of the inmates at ISCI.” (Affidavit of Connie Smock
(“Smock Aff.”), Ex. A, Dkt. 78-7 at 2.) Anita Travis issued the first level response,
thanking Plaintiff for alerting her that confidential medical information was being
discussed within earshot of other inmates and stating that the incident had been discussed
MEMORANDUM DECISION AND ORDER - 10

at a staff meeting. (Id.) With respect to the statements by medical personnel that Corizon
was understaffed, Travis stated, that “[i]t is very easy for individuals not involved to ‘arm
chair quarterback’ any situation and discuss what they would do, or how they think any
particular situation should be handled. But in the end they are just their opinions. We
regret any implications that you took from this discussion of personal opinions.” (Id.)
Travis’s response to the grievance was upheld at the second level of grievance review,
where Larry Hynes stated that “the staffing at all facilities is closely monitored by our
company . . . and the IDOC to insure adequate staffing is maintained.” (Id. at 3.) Plaintiff
appealed, and Defendant Smock agreed with the first and second level responses. (Id.)
The Court notes that this grievance does not specifically relate to Plaintiff’s medical
treatment.
Plaintiff filed his second grievance on March 14, 2011. In this grievance, Plaintiff
complained that Travis improperly gave “a medical diagnoise’s [sic] to correctional staff”
that resulted in Plaintiff being denied shoes that fit properly. (Id., Ex. B, Dkt. 78-8 at 2.)
Travis explained in her first level response that she “was asked to evaluate whether there
was a change in [Plaintiff’s] gait” when he put on a new pair of shoes. (Id.) Travis stated,
“After you had the shoes put on your feet, you were asked to walk and I did not observe
any difference in your gait between the old and new shoes. I made no diagnosis and
performed no treatment.” (Id.) Travis’s response was upheld at the second level of
authority because Travis “was asked to observe [Plaintiff] walking in the shoes and she
did just that.” (Id. at 4.) Defendant Smock denied Plaintiff’s appeal, finding that “Travis’s
MEMORANDUM DECISION AND ORDER - 11

assessment of [Plaintiff’s] gait while wearing shoes was appropriate.” (Id.)
In his third grievance, Plaintiff asked to talk to somebody about his medical
options because he was unsure if he wanted surgery on his foot. (Id., Ex. C, Dkt. 78-9 at
2.) Rich Cartney responded that if Plaintiff submitted a health services request, medical
staff could discuss his options with him. (Id.) Plaintiff appealed, and Defendant Smock
informed Plaintiff that he had to “use the health service request form instead of the
concern form for [a] request to be seen by medical.” (Id. at 3.)
Plaintiff filed a fourth grievance asking to see a dental hygienist to have his teeth
cleaned. (Id., Ex. D, Dkt. 78-10 at 2.) Rich Cartney responded to the grievance by
pointing out that Plaintiff had been seen by Dr. Chandler on August 11 and August 18,
2011. Plaintiff appealed, and Defendant Smock stated, “Please submit a dental health
service request if you need to be seen by the hygienist.” (Id. at 3.)
3.

Summary Judgment 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
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims or
defenses.” 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.
MEMORANDUM DECISION AND ORDER - 12

“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine
dispute as to any material fact in order for a case to survive summary judgment. Material
facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over
irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a
party may cite to particular parts of materials in the record, or show that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)
& (B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would

MEMORANDUM DECISION AND ORDER - 13

be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or in 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). If a party “fails to
properly support an assertion of fact or fails to properly address another party’s assertion
of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The
Court may 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.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences that can be drawn from
the evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec.
Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences
from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
Statements in a brief, unsupported by the record, cannot be used to create an issue
of material fact. Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995).
The Ninth Circuit “ha[s] repeatedly held that documents which have not had a proper
foundation laid to authenticate them cannot support a motion for summary judgment.”
Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (citation and
internal quotation marks omitted). Authentication, required by Federal Rule of Evidence
901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit
MEMORANDUM DECISION AND ORDER - 14

must contain “testimony of a witness with personal knowledge of the facts who attests to
the identity and due execution of the document.” Id.
4.

Plaintiff’s Claims Against Corizon and Shahan Remain At Issue
Defendants Corizon and Shahan argue that because Plaintiff did not include any

allegations against them in his Amended Complaint, all claims against them have been
waived and must be dismissed. (Memo. in Supp., Dkt. 78-1, at 11-12.) The general rule in
the Ninth Circuit is that an “amended complaint supersedes the original, the latter being
treated thereafter as non-existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th
Cir. 1997), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d
896 (9th Cir. 2012) (en banc). Therefore, “a plaintiff waives all claims alleged in [an
original] complaint which are not realleged in an amended complaint.” Id.
In Lacey, the Ninth Circuit limited application of this general rule, holding that it
does not apply to claims in an original complaint that were “dismissed with prejudice and
without leave to amend.” 693 F.3d at 928. The court left undisturbed, however, the
application of the rule to claims against parties who are omitted from an amended
complaint. Id.; see also Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d
1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment
against a party named in the initial complaint, but not in the amended complaint). This
rule would appear to preclude Plaintiff from asserting the claims in his initial Complaint
against Corizon and Shahan.
However, the Ninth Circuit has recognized that the amendment-waiver rule can be
MEMORANDUM DECISION AND ORDER - 15

overly harsh. Lacey, 693 F.3d at 925-26. Moreover, the Court in its Initial Review Order
stated that it could not effect service on the unidentified Defendants and that “Plaintiff
may amend his complaint to state the real names of these individuals and request service
once he determines this information.” (Dkt. 11 at 7.) By this language, the Court did not
intend to suggest that Plaintiff could disregard Local Rule 15.1, which states that “[a]ny
amendment to a pleading, whether filed as a matter of course or upon a motion to amend,
must reproduce the entire pleading as amended.” It is understandable, however, that a pro
se prisoner plaintiff, generally unfamiliar with the Federal Rules of Civil Procedure and
the Local Rules, assumed that he needed only to add the allegations against the newly
identified Defendants.
Therefore, the Court will consider Plaintiff’s second pleading as a supplement to
the Complaint and will consider the Complaint, and the Amended & Supplemental
Complaint, together as the operative complaint in this case. The Court recognizes that a
supplement to a complaint is technically limited to claims that arose after the filing of the
lawsuit. See Fed. R. Civ. P 15(d) (“On motion and reasonable notice, the court may, on
just terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.”).
However, in this case equity suggests that the claims in the initial Complaint against
Corizon and Shahan must be considered on the merits.4

4

Defendants Corizon and Shahan did not move for summary judgment on the merits of
the claims against them. (See Dkt. 78-1 at 12.) Ordinarily, a court considering granting summary
MEMORANDUM DECISION AND ORDER - 16

5.

Section 1983 Claims
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute, against

Defendants Corizon, Takagi, and Smock.5 To state a valid claim under § 1983, a plaintiff
must allege a violation of rights protected by the Constitution or created by federal statute
proximately caused by the conduct of a person acting under color of state law. Crumpton
v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Prison officials are generally not liable for damages in their individual capacities
under § 1983 unless they personally participated in the alleged constitutional violations.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677
(“[E]ach Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.”). “A defendant may be held liable as a supervisor under § 1983 ‘if
there exists either (1) his or her personal involvement in the constitutional deprivation, or
(2) a sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection “can be

judgment on a ground not raised by the moving party gives the non-moving party an opportunity
to respond. See Fed. R. Civ. P. 56(f). However, Plaintiff responded not only to the Defendants’
waiver argument, but he also responded on the merits, arguing that “all named Defendants” were
deliberately indifferent to his serious medical needs. (Response at 2.) Plaintiff has also
introduced evidence in an attempt to support his claims against Corizon and Shahan. (See id.,
Att. B.) Therefore, the Court concludes that Plaintiff would not have responded any differently
to Defendants’ Motion for Summary Judgment even had Corizon and Shahan explicitly argued
the merits, and the Court will consider those claims at this time.
5

Plaintiff initially asserted § 1983 claims against Defendant Shahan, but he was not
allowed to proceed on those claims. (See Dkt. 11 at 6-7.)
MEMORANDUM DECISION AND ORDER - 17

established by setting in motion a series of acts by others, or by knowingly refusing to
terminate a series of acts by others, which the supervisor knew or reasonably should have
known would cause others to inflict a constitutional injury.” Id. at 1207-08 (internal
quotation marks, citation, and alterations omitted).
To succeed on his claims against Corizon as an entity, Plaintiff must meet the test
articulated in Monell v. Department of Social Services, 436 U.S. 658, 690-94 (1978). See
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to
private entities). Under Monell, the requisite elements of a § 1983 claim against a
municipality or private entity performing a state function are the following: (1) the
plaintiff was deprived of a constitutional right; (2) the municipality or entity had a policy
or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff’s
constitutional right; and (4) the policy or custom was the moving force behind the
constitutional violation. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110-11 (9th Cir.
2001).
An unwritten policy or custom must be so “persistent and widespread” that it
constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper
custom may not be predicated on isolated or sporadic incidents; it must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has become a
traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996). Further, a municipality or private entity performing a state function “may be held
MEMORANDUM DECISION AND ORDER - 18

liable under § 1983 when the individual who committed the constitutional tort was an
official with final policy-making authority or such an official ratified a subordinate’s
unconstitutional decision or action and the basis for it.” Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).
A.

Standard for Eighth Amendment Claims

Plaintiff claims that Defendants have violated the Eighth Amendment to the United
States Constitution. That amendment, which prohibits cruel and unusual punishment,
requires that prisoners receive minimally adequate medical care, and prison officials or
prison medical providers can be held liable if their “acts or omissions [were] sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). “Because 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.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992).
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) (internal citations omitted),
overruled in part on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.
MEMORANDUM DECISION AND ORDER - 19

1997) (en banc).
To exhibit deliberate indifference, a defendant “must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the
medical context, deliberate indifference can be “manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104-05 (footnotes omitted). A conclusion that a defendant acted with
deliberate indifference requires that the plaintiff show both “a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and . . . harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Differences in judgment regarding appropriate medical diagnosis and treatment
between an inmate and prison medical personnel, or between different medical providers,
are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative
courses of treatment, a prisoner must show that the chosen course of treatment ‘was
medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard
of an excessive risk’ to the prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058
(9th Cir. 2004) (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of
MEMORANDUM DECISION AND ORDER - 20

action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). A mere delay in treatment does not constitute a violation of the
Eighth Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060. 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
appropriate. Toguchi, 391 F.3d at 1061.
B.

Discussion

Defendants argue that (1) Plaintiff did not have a serious medical need when he
was evaluated by Defendant Takagi on March 20, 2009, and (2) Plaintiff cannot show that
Defendants acted with deliberate indifference.
The Court rejects Defendants’ assertion that Plaintiff did not have a serious
medical need. (See Memo. in Supp. at 12-13.) Although the Court finds that this argument
is not quite frivolous, it is certainly close. The Court has no trouble concluding that the
severe back and leg pain that Plaintiff described clearly constituted a serious medical
need. See McGuckin, 974 F.2d at 1060 (serious medical needs “include the existence of
chronic and substantial pain.”). By focusing on Defendant Takagi’s description of his
March 20 evaluation of Plaintiff, rather than on Plaintiff’s own allegations, Defendants
ignore the cardinal rule of summary judgment, which is that all reasonable inferences
must be drawn in favor of the non-moving party. Indeed, the very fact Plaintiff’s pain led
Takagi to enroll Plaintiff in the chronic care clinic is enough to defeat this argument. (See
MEMORANDUM DECISION AND ORDER - 21

Takagi Aff. ¶ 10 & Ex. A at SICI 112.)
The Court next considers whether Defendants were deliberately indifferent to
Plaintiff’s serious medical needs.
i.

Eighth Amendment Claims Against Defendant Takagi

Defendant Takagi examined Plaintiff three times during the time period at issue. A
review of Takagi’s testimony and notes, which Plaintiff does not controvert, shows that
Takagi treated Plaintiff’s pain competently and adequately. Takagi’s notes show that
Plaintiff’s condition improved over the course of his treatment. Although Takagi took
Plaintiff off of some of his medications, there is no evidence that this action was the result
of deliberate indifference. Takagi discontinued the magnesium oxide because it was
causing “decreased reflexes” and replaced it with ibuprofen. (Takagi Aff. ¶ 10.) Takagi
prescribed Plaintiff other medication as well, such as naproxen for pain and the muscle
relaxant Robaxin. (Id. ¶ 11-12.) Takagi also spoke to Dr. Patmas about Plaintiff’s
condition in an attempt to further Plaintiff’s treatment. (Id., Ex. A at SICI 117.)
Defendants have met their initial burden of showing that Defendant Takagi was
not deliberately indifferent to Plaintiff’s medical needs. The burden thus shifts to Plaintiff
to established that a genuine issue of material fact precludes summary judgment. This he
has failed to do.
Plaintiff asserts that Takagi should not have denied Plaintiff his shoes and bottombunk memos or the medication he was taking at the time he arrived in the RDU. But this
shows nothing more than that Plaintiff disagrees with Takagi’s treatment choices, which
MEMORANDUM DECISION AND ORDER - 22

is not enough to establish deliberate indifference. See Sanchez, 891 F.2d at 242. The
record simply does not allow the Court to infer that Takagi’s treatment of Plaintiff “was
medically unacceptable under the circumstances” or “was chosen in conscious disregard
of an excessive risk” to Plaintiff’s health. Toguchi, 391 F.3d at 1058 (internal quotation
marks omitted).
ii.

Eighth Amendment Claims Against Defendant Smock

Plaintiff’s Eighth Amendment claims against Defendant Smock relate entirely to
her responses to his grievance appeals. These claims fail for at least two reasons.
First, the law is clear that “[t]here is no legitimate claim of entitlement to a [prison]
grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). As one court
has explained, where prison officials’ “only roles in [a civil rights] action involve the
denial of administrative grievances or the failure to act . . . they cannot be liable under §
1983.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Second, Defendant Smock’s responses to Plaintiff’s grievances do not show
deliberate indifference. Smock concurred with a detailed response from Anita Travis
regarding her statement about Plaintiff’s gait. Smock also informed Plaintiff, twice, that
he would have to use a health services request form if he wished to be seen by medical
staff. None of these responses violated the Eighth Amendment. Smock also did not
exhibit deliberate indifference to Plaintiff’s medical needs with respect to Plaintiff’s
generalized complaint about confidentiality and Corizon’s alleged understaffing, because
the grievance was only tangentially related—if at all—to Plaintiff’s medical treatment.
MEMORANDUM DECISION AND ORDER - 23

There is no evidence that Smock inferred from the grievances that Plaintiff faced a
substantial risk of serious harm as a result of his medical treatment. See Farmer, 511 U.S.
at 837.
iii.

Eighth Amendment Claims Against Defendant Corizon

Corizon cannot be held liable for any constitutional violation unless it has an
official policy or unwritten practice constituting deliberate indifference to Plaintiff’s
serious medical needs. Plaintiff’s course of treatment for his back, leg, and foot pain, as
described above, does not raise a reasonable inference that Corizon had such a policy or
practice. Plaintiff was evaluated by medical providers no less than six times over the
course of approximately 18 months, in addition to his several physical therapy
evaluations. He was prescribed muscle relaxants and pain medication, was given x-rays
and an MRI, and underwent back surgery and foot surgery. This level of treatment is
constitutionally adequate; indeed, it is comparable to that enjoyed by free citizens with
good health insurance.
Plaintiff alleges that the MRI and his back surgery were unreasonably delayed and
that his surgical wound became infected, requiring a second surgery. He claims also that
his sacroiliac joint injection was done improperly and without sedation or imageguidance. However, these allegations do nothing to show that Corizon had a policy or
practice of delaying necessary treatment, of mistreating wounds, or of performing
procedures without proper monitoring or other safeguards.
Finally, there is nothing in the record to support Plaintiff’s general claim that
MEMORANDUM DECISION AND ORDER - 24

medical staff make treatment decisions solely on the cost of the treatment.
6.

Medical Practice Claims
With respect to Plaintiff’s medical malpractice claims, Defendants have submitted

sufficient evidence to show that Plaintiff would not be able to prove those claims at trial.
The elements of a medical malpractice claim under Idaho law are as follows:
In any case, claim or action for damages due to injury to or
death of any person, brought against any physician and
surgeon or other provider of health care . . . such claimant or
plaintiff must, as an essential part of his or her case in chief,
affirmatively prove by direct expert testimony and by a
preponderance of all the competent evidence, that such
defendant then and there negligently failed to meet the
applicable standard of health care practice of the community
in which such care allegedly was or should have been
provided . . . .
Idaho Code § 6-1012 (emphasis added). Plaintiff has not submitted “direct expert
testimony” establishing (1) the appropriate standard of care, and (2) a breach of that
standard of care by Defendants. Therefore, Plaintiff has failed to raise a genuine issue of
fact that would preclude summary judgment on his medical malpractice claims.
The statement in Plaintiff’s medical records, made by an unidentified medical
provider, regarding the standard of care for a sacroiliac joint injection is not sufficient to
meet the statutory requirements for a medical malpractice claim. (See Response, Att. B at
SICI 144.) It is a hearsay statement made by an unknown medical provider, and there is
therefore insufficient evidence for the Court to deem this individual to be qualified as an
expert in this case. See Fed. R. Evid. 702 (“A witness who is qualified as an expert by

MEMORANDUM DECISION AND ORDER - 25

knowledge, skill, experience, training, or education may testify in the form of an opinion
or otherwise . . . .”) (emphasis added). Plaintiff has also not provided any evidence
regarding the qualifications of Dr. Heckard, who opined that proper injection includes
fluoroscopic guidance or a CT. Moreover, these statements were not made under oath and
thus cannot be considered “testimony” for purposes of the Idaho statute. For these
reasons, Plaintiff’s medical records do not satisfy the requirements of Idaho Code
§ 6-1012.
The Court recognizes that Plaintiff is a pro se prisoner and has limited resources
with which to locate an expert witness. However, Plaintiff could have attempted to
procure such a witness by contacting medical professionals. Moreover, although pro se
prisoner filings must be liberally construed, the Court “may not supply essential elements
of the claim” that Plaintiff has not alleged and proved. See Ivey v. Bd. of Regents of Univ.
of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
In any event, although Plaintiff claims that his sacroiliac joint injection was not
image-guided and that he was not sedated during the procedure, he has not alleged that
the injection resulted in any injury, which is required for a medical malpractice claim in
Idaho. See Puckett v. Verska, 158 P.3d 937, 943 (Idaho 2007) (describing proximate
cause and injury as two of the elements that a plaintiff must prove to a jury in a
malpractice action).

MEMORANDUM DECISION AND ORDER - 26

CONCLUSION
For the foregoing reasons, all remaining Defendants in this case (Corizon, Shahan,
Takagi, and Smock) are entitled to summary judgment.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion to Compel (Dkt. 88) is DENIED.

2.

Defendants’ Motion for Summary Judgment (Dkt. 78) is GRANTED. All
claims that have not previously been dismissed are now DISMISSED with
prejudice.

DATED: September 18, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

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