Dill v. IDOC et al

Filing 46

ORDER denying without prejudice 21 Motion for Summary Judgment; Defendants may submit a new motion for summary judgment no later than 60 days after entry of this Order, addressing the facts set forth above, whereupon Plaintiff will have 30 days to respond, and Defendants will then have 14 days to reply. 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 dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL S. DILL,
Case No. 1:10-cv-00350-BLW
Plaintiff,
ORDER
v.
CORRECTIONAL MEDICAL
SERVICES (CMS), a private corporation
under contract at ISCI, P.A. VALLEY,
P.A. WINGERT, and N.A. BELFOR,
Defendants.

Pending before the Court is Defendants’ Motion for Summary Judgment. (Dkt.
21.) Petitioner has filed a Response and a Supplemental Response (Dkt. 25, 45), and
Defendants have filed a Reply. (Dkt. 27.) Having fully reviewed the record, the Court
finds that the parties have provided inadequate facts upon which the Court can determine
whether there is a genuine dispute as to the material facts supporting the subjective
element of deliberate indifference (whether Defendants acted recklessly or intentionally
in the manner in which they treated Plaintiff’s injury).1
Recently-revised Federal Rule of Civil Procedure 56(e) authorizes the Court to
1

See Redman v. City of San Diego, 942 F.2d 1435, 1449 (9th Cir. 1991) (“deliberate
indifference” is conduct intended to harm, or conduct that “was so reckless as to be tantamount
to a desire to inflict harm.”).
ORDER - 1

give the parties “an opportunity to support or address [a] fact” if the Court finds that a
fact is not adequately supported in the documentation by the parties in their briefing of
the Motion for Summary Judgment. In this case, the Court finds that Plaintiff’s Amended
Complaint, the Offender Concern Forms (kites), and the Health Services Request forms
(HSRs) show (1) that Plaintiff was treated more frequently during the two-week period at
issue than the medical records attached to Dr. Lossman’s Affidavit indicate; and (2) that
Plaintiff may have had the start of an infection in his finger that needed to be addressed
on or about February 3, but an infection may not have been documented in the medical
records.
Dr. Lossman does not appear to have knowledge of the undocumented or poorlydocumented medical visits with Plaintiff, and he may not have had knowledge of the
alleged infection. In addition, in Defendants’ briefing, Will Wingert is identified as both
an LPN and an RN, and no explanation is given as to whether these LPNs are licensed
professional nurses or license practical nurses and what their corresponding authority to
treat or diagnose is. Further, particularly at issue is what the Defendants themselves did,
why they did what they did, and what they knew during their interactions with Plaintiff.
Thus, the Dr. Lossman Affidavit does not speak to the issue of subjective intent in this
case. As a result, the Court will deny the Motion without prejudice, and permit the parties
to supplement the record in a new round of summary judgment briefing.
The following is a time line of the facts alleged or documented by the parties.
The Court invites the parties to provide further explanations or facts, or correct the time
ORDER - 2

line if necessary.
January 27, 2010

Plaintiff injured his right pinky finger by dropping an 85pound weight on it. (Plaintiff's Amended Complaint, Dkt. 13,
p. 6.) He filed a Health Services Request (HSR) form the
same day, stating, “Finger hurts, need help!” (Dkt. 21-3, p.
23.)
Medical records indicate that Plaintiff was examined the same
day by Defendant Physician’s Assistant (P.A.) Valley and
was found to have an inch-long incision on his right pinky
finger. His finger was bleeding minimally, and his pain at that
time was reported to be moderate. (Scott Lossman, M.D.,
Affidavit, Dkt. 21-3, p. 4, 11.) Plaintiff's finger laceration was
closed and the wound thoroughly disinfected by P.A. Valley.
(Id.) An x-ray was also ordered.
P.A. Valley gave Plaintiff Ibuprofen to help with the pain.
Plaintiff asked for something more for the pain than
Ibuprofen, and P.A. Valley said that inmates are not allowed
anything narcotic. (Amended Complaint, Dkt. 13, p. 6.) P.A.
Valley did not give Plaintiff any supplies to take back to his
cell to disinfect his wound. P.A. Valley said to follow up in 3
days to evaluate tendon and have a range of motion test after
the pain decreases, and to follow up in 7 days for suture
removal. (Plaintiff complains that these evaluations did not
occur, but it is unclear whether the medical unit was supposed
to schedule the follow-up visits or whether Plaintiff was
supposed to schedule the visits; in addition, Plaintiff alleges
that he had several medical visits subsequent to his first visit,
and those subsequent visits and the status of his injury are not
necessarily documented in the medical records.)
Later in the day on January 27, 2010, Plaintiff submitted an
HSR, complaining of pain. The “Health Care
Documentation” portion of the HSR states:
“Subjective: Patient smashed finger earlier in the day
and received stitches. Patient refused IBU at that time,
spoke with Patient at 2310, complained of severe pain.
Patient stated IBU was not working, he needed
something else. Patient was advised to fill out HSR

ORDER - 3

and I would speak to sick call about getting him seen
in A.M. Patient refused. At about 2210 Patient
contacted unit officers stating he needed IBU for pain.
Patient given 1 box IBU per protocol. HSR was
received at this time. Plan: Refer to OPC for follow up;
patient given [illegible].” (Dkt. 21-3, p. 23.)2
January 28, 2010

Plaintiff complained that his pain had increased and the
Ibuprofen was not helping, and he saw Defendant Wingert,
who consulted with a doctor, and then prescribed a higher
dosage of Ibuprofen (800 mg) for 30 days and an ice memo
for 3 days _Affidavit of Scott Lossman, M.D. Dkt. 21-3,
¶ 12). Medical records reflect that the consulting doctor was
Dr. Adrian. (Plaintiff’s Supplemental Response, Exhibit HH,
Dkt. 45-1, pp. 2-3.) Plaintiff asked Defendant Wingert why
he could not get help with the pain, and Wingert said it was
because of a policy not to give inmates narcotics for pain
management. (Amended Complaint, Dkt. 13, p. 7.) Also on
this same date, Plaintiff was x-rayed. (Id. at 13.)

January 29, 2010

Plaintiff submitted an HSR, complaining: “still haven’t seen a
doctor, finger keeping me awake to painfull [sic] Ibs -– Ice
not helping.” (Dkt. 21-3, p. 24.) He went to the medical unit
to pick up some ice, and told unidentified medical staff he
needed help, and they told him to put it in writing. (Dkt. 13,
p. 8.) The x-ray report was prepared by the doctor on this date
(in Oregon).3

2

The January 29, 2010 HSR was stamped “received” on January 29, 2010, but the LPN’s
notation of “taken care of” and the LPN’s signature showing that the HSR had been reviewed by
the LPN occurred on February 8, 2010. (Id.) Plaintiff’s Amended Complaint and the kites show
that Plaintiff had various medical visits in between January 29 and February 8, but the Progress
Notes skip from January 28 to February 10. The fact that some of the HSR responses seem to
have been completed long after some of the visits (which visits themselves do not appear to be
documented and do not necessarily appear to correspond to the HSRs), makes analysis of
Defendants’ actions and states of mind difficult without explanation from Defendants
themselves.
3

The HSR response “plan” by the LPN appears to have been written in on February 8,
2010; it noted: “taken care of.” (Id.)
ORDER - 4

January 30, 2010

Plaintiff submitted another HSR, stating: “4 days with pain in
finger. Help please!! Ibs- and Ice are not helping.” (Dkt. 21-3,
p. 25.) The HSR was received on February 1, 2010.4

February 1, 2010

P.A. Valley reviewed the x-ray report. The results of the xray noted slight soft tissue swelling, but no acute fracture or
articular pathology. (Id. at 12.) A note to this effect is written
on the x-ray report. Plaintiff alleges that, while getting ice, he
again asked unidentified medical staff for help with his pain,
but was denied help.

February 3, 2010

At about 3:00 p.m., Plaintiff wrote a kite informing staff that
he was in severe pain and he thought his finger might be
infected. (Exhibits to Amended Complaint, Dkt. 2-5, p. 2.)
At about 8:10 p.m., Defendant L.P.N. Robert Balfour came to
Plaintiff’s unit to check his finger. Defendant Balfour
allegedly said,“the wound looks fine,” that “the pain is part of
the healing process,” and that “medical is not going to give
anything besides Ibuprofen to inmates for pain management.”
(Amended Complaint, Dkt. 13, p. 9.) (There is no mention of
whether Plaintiff told Defendant he suspected an infection,
and there are no facts on whether Defendant did not himself
perceive an infection.)

February 6, 2010

4

Plaintiff showed a correctional officer (Soto) his finger, and
the officer said that it looked infected. Plaintiff was sent to
the medical unit, where he saw Defendant Wingert, who also
said that Plaintiff’s finger looked infected. Defendant Wingert
allegedly said P.A. Valley had made the stitches too short [or
perhaps it merely appeared so because the finger was
swollen], and Wingert removed them from Plaintiff’s finger,
drained the finger of the infection, and gave Plaintiff
hydrogen peroxide to clean the wound, but no other pain
medication. (Id., pp. 9-10.)

The response “plan,” written in by the LPN on February 8, 2010, noted: “Patient
complained of no pain.” (Id.)
ORDER - 5

February 8, 2010

Wingert called Plaintiff to the medical unit to check on the
infection, but did not give Plaintiff any additional pain
medication. (Id., p. 10.)
Defendant Balfour (or perhaps another LPN) completed the
“response” section of all three of Plaintiff’s HSRs that
complained that the Ibuprofen and ice were insufficient for
his finger pain. While these forms were received by medical
staff a week or more before February 8, nothing in the record
shows exactly when Defendant Balfour (or other LPN)
received the HSRs. (One of the responses shows “Patient
complained of no pain,” and it would be helpful to know the
facts supporting this entry, including on what specific day the
patient reported he had no pain, and who that was reported
to.)

February 10, 2010 Plaintiff did not complain of any further pain when he was
seen by medical personnel in preparation for his discharge
from prison on parole. (On this day, it is unclear whether
Plaintiff was examined, asked about current medical issues,
or simply notified of how to take care of his medical issues as
he made the transition to his impending release on parole.)
(Lossman Affidavit, at 20.)
February 17, 2010 Plaintiff was released on parole.
July 9, 2010

Plaintiff filed this civil rights complaint while on parole. (Dkt.
2.)

September 2, 2010 Plaintiff's parole was revoked, and, upon returning to ISCI,
Plaintiff filled out a Medical History Questionnaire in which
he listed no current medical problems necessitating medical
attention. (Dkt. 21-3, pp. 26-27.) Plaintiff indicated that he
was not taking any pain medication nor did he make any
medical requests regarding his alleged finger pain. (Id.)
November 19, 2010 As a result of removal of a cyst from Plaintiff’s scrotum, Dr.
Lossman prescribed Vicodin for Plaintiff’s pain associated
with this procedure. (Dkt. 21-3, p. 13.)

ORDER - 6

January 2011

Five months after being re-incarcerated, Plaintiff submitted a
kite seeking medical attention for his pinky finger which he
injured nearly a year before. (Lossman Affidavit, ¶ 19.) In
response to Plaintiff's newest kite, the medical unit evaluated
Plaintiff’s finger; it was noted to have healed well. (Dkt. 213, p. 15.) Plaintiff was noted to have full range of motion and
strength in his pinky finger. (Id.) Medical personnel noted
that Plaintiff's pain was due to possible nerve damage, and he
was issued a 90-day prescription of Neurontin, an
anticonvulsant used in treating neuropathic pain. (Id.)

Further, it appears undisputed that CMS has a policy or custom that, “[d]ue to the
high risk of addiction and potential for abuse, especially in a prison setting, narcotic pain
medications are prescribed only when medically necessary.” It also appears clear from
the record that CMS providers do prescribe narcotic pain medication when medically
necessary, such as in the case of Plaintiff’s scrotal cyst.
Finally, given the fact that each individual Defendant saw Plaintiff only
sporadically during the two-week time period at issue, Plaintiff will have to point to or
bring forward sufficient evidence to show that each Defendant acted with the necessary
culpability to show a genuine dispute of material fact as to recklessness or deliberate
indifference. Accordingly, Defendant’s Motion for Summary Judgment will be denied
without prejudice to refiling it, and the parties will be permitted to provide Rule 56(e)(1)
facts and argument, as set forth above.
ORDER
IT IS ORDERED:
1.
ORDER - 7

CMS Defendants’ Motion for Summary Judgment (Dkt. 21) is

DENIED without prejudice, pursuant to Rule 56(e)(1).
2.

Defendants may submit a new motion for summary judgment no later than
60 days after entry of this Order, addressing the facts set forth above,
whereupon Plaintiff will have 30 days to respond, and Defendants will then
have 14 days to reply.

DATED: March 9, 2012

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

ORDER - 8