Pena v. Corizon et al

Filing 33

MEMORANDUM DECISION AND ORDER Defendants' Motion for Summary Judgment (Dkt. 23 ) is DENIED without prejudice. Signed by Judge B. Lynn Winmill. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

FERNANDO PEÑA,
Case No. 1:11-cv-00366-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CORIZON and SCOTT LOSSMAN,
Defendants.

Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. 23).
Plaintiff filed a Response, and Defendants filed a Reply. (Dkt. 30, 31.) Having fully
reviewed the record and the materials submitted by the parties, the Court finds that the
facts and legal arguments are adequately presented in the briefs and record, and that the
decisional process would not be significantly aided by oral argument. See Dist. Idaho L.
Rule 7.1(d)(1). Accordingly, based on the record before it, the Court will deny the Motion
for Summary Judgment.

MEMORANDUM DECISION AND ORDER - 1

CONSIDERATION OF MOTION FOR SUMMARY JUDGMENT
1.

Standard of Law
A.

Summary Judgment

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 “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.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. “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 material issue of 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 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,
MEMORANDUM DECISION AND ORDER - 2

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
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).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. The evidence of the opposing party is to be believed,
Anderson, 477 U.S. at 255, and all reasonable 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). If the moving party meets its initial
responsibility, the burden then shifts to the opposing party to establish that a genuine
issue (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. 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
MEMORANDUM DECISION AND ORDER - 3

is entitled to it.” Fed. R. Civ. P.56(e)(3).
B.

Section 1983 Claims

Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a claim under § 1983, Plaintiff must show the existence of four elements: “(1) a violation
of rights protected by the Constitution or created by federal statute (2) proximately caused
(3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947
F.2d 1418, 1420 (9th Cir. 1991).
“Liability under section 1983 arises only upon a showing of personal participation
by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).
In other words, Plaintiff must show that Defendants’ actions caused the deprivation of a
constitutional right. 42 U.S.C. § 1983; Arnold v. International Business Machines Corp.,
637 F.2d 1350, 1355 (9th Cir. 1981). “The causation requirement of § 1983 . . . is not
satisfied by a showing of mere causation in fact[;] [r]ather, the plaintiff must establish
proximate or legal causation.” Id. The United States Court of Appeals for the Ninth
Circuit has explained: “A person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of § 1983, if he does an affirmative act, participates in another’s
affirmative acts, or omits to perform an act which he is legally required to do that causes
the deprivations of which he complains.” Id. (internal citation omitted).
C.

Eighth Amendment Claims of Inadequate Medical Care

To state a claim under the Eighth Amendment, a plaintiff must show that he is
incarcerated “under conditions posing a substantial risk of serious harm,” or that he has
MEMORANDUM DECISION AND ORDER - 4

been deprived of “the minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). An Eighth Amendment
claim requires a plaintiff to satisfy “both an objective standard—that the deprivation was
serious enough to constitute cruel and unusual punishment—and a subjective standard—
deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained “[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.’” 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 on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)
(en banc).
As to the subjective standard, a prison official acts with “deliberate indifference . .
. only if the [prison official] knows of and disregards an excessive risk to inmate health
and safety.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002)
MEMORANDUM DECISION AND ORDER - 5

(citation and internal quotation marks omitted). “Under this standard, the prison official
must not only ‘be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at
837). “If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson,
290 F.3d at 1188 (citation omitted). Nonetheless, “whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence, . . . and a factfinder
may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d
410, 421 (9th Cir. 2003) (deliberate indifference to medical needs may be shown by
circumstantial evidence when the facts are sufficient to demonstrate that defendant
actually knew of a risk of harm).
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. 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, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v.
MEMORANDUM DECISION AND ORDER - 6

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). Nor does the Eighth Amendment 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.”).
Finally, 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.
D.

Standard of Law re: Private Entity Performing State Function

To bring a § 1983 claim against a municipality (local governmental entity) or a
private entity performing a government function, a plaintiff must allege that the execution
of an official policy or unofficial custom inflicted the injury of which the plaintiff
complains. Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (Monell applicable to private
entities performing government functions). That is, “a municipality [or entity] can be
found liable under § 1983 only where the municipality [or entity] itself causes the
constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Requisite elements of a § 1983 policy-based claim against a municipality or entity
are the following: (1) the plaintiff was deprived of a constitutional right; (2) the
municipality or entity had a policy; (3) the policy amounted to deliberate indifference to
MEMORANDUM DECISION AND ORDER - 7

the plaintiff’s constitutional right; and (4) the policy was the moving force behind the
constitutional violation. Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237
F.3d 1101, 1110-11 (9th Cir. 2001) (citing Van Ort v. Estate of Stanewich, 92 F.3d 831,
835 (9th Cir.1996) (internal quotation marks omitted)).
Where there is no identifiable written policy, sufficient evidence of any of the
following can constitute an “official municipal policy” that supports a Monell claim:
“decisions of a government’s lawmakers, the acts of its policymaking officials, [or]
practices so persistent and widespread as to practically have the force of law.” Connick v.
Thompson, 131 S.Ct. 1350, 1359 (2011).
3.

Defendants’ Objection to Plaintiff’s Submissions
Defendants object to Plaintiff’s journal and other submissions in support of the

Response to the Motion for Summary Judgment, because such items were not disclosed
during discovery. (See Attachments to Dkt. 30.) The remedy for that omission, at this
intermediate stage of proceedings, is to re-open discovery and permit Defendants to
depose Plaintiff or conduct such other discovery as may be necessary to supplement their
defenses. Because the Court has determined that the journal reflects essentially the same
information as in the medical records submitted by Defendants, and any quarrels with
Plaintiff about what his medical providers verbally told him are credibility determinations
that cannot be determined on summary judgment, the items do not change the Court’s
decision. Therefore, the Court will consider the merits of the Motion for Summary
Judgment rather than defer it until after additional discovery.
MEMORANDUM DECISION AND ORDER - 8

In addition, because the Motion for Summary Judgment will be denied and the
Court will attempt to locate pro bono counsel for Plaintiff, the Court will re-open
discovery for both parties. If, after conducting additional discovery, Defendants wish to
file a second motion for summary judgment, they may do so.
4.

Facts and Discussion
Plaintiff alleges that Defendants delayed and denied him a knee replacement

surgery that was recommended by an outside orthopedic surgeon until Plaintiff filed a
grievance that threatened a lawsuit, after which the surgery was provided to him. He
alleges that he needlessly suffered pain during the period of delay. Defendants disagree,
and seek summary judgment on Plaintiff’s claims.
A.

Medical Care from January 2009 to September 16, 2010

The record reflects that Plaintiff, an Idaho Department of Correction inmate about
age 53, reported knee problems to Texas prison medical providers in 2008, including
problems while running during his exercise time. (Ryan Valley Affidavit Exhibits, Dkt.
23-5, p. 6.) Plaintiff was given a knee brace and ordered to rest. (Id.) Plaintiff was
returned to an Idaho prison on January 4, 2009. (Dkt. 23-19, p. 2.) Plaintiff’s journal
reflects that, as of February 17, 2009, he was regularly engaging in running, walking to
Pendyne, and working as a janitor. He had some difficulties with his knee that required
him to stop and rest, but he believed the difficulties were just temporary. (Plaintiff
Journal, Dkt. 31, p.3.) On March 22, 2009, Plaintiff submitted a Health Service Request
Form (HSR or “kite”) to request medical care for his knee. He stated he needed to have
MEMORANDUM DECISION AND ORDER - 9

his leg and knee x-rayed, he was experiencing a lot of pain, and he could barely walk on
his leg. (Dr. Lossmann Affidavit, Dkt. 23-20, ¶ 8.)
The medical records reflect that Plaintiff saw various medical providers (other than
Defendant Dr. Lossmann) to have his knee evaluated, and he followed a course of
conservative treatment between March 22, 2009 and April 20, 2010, a period of
approximately 13 months. (Matthew Valley Affidavit, Exhibits, Dkts. 23-4 to 23-6.)
On April 20, 2010, Plaintiff had an MRI and saw an offsite orthopedic physician,
Dr. Curran. Of this visit, Dr. Curran wrote: “We discussed his treatment options. We will
try viscosupplementation. If no improvement he will likely require total knee
arthroplasty.” (Dkt. 23-6, p. 19.) Plaintiff agreed to try the conservative treatment, and Dr.
Curran administered the injection. The record reflects that the medical report from Dr.
Curran showed that Plaintiff should “follow up in 6 weeks.” (Id.)
On May 11, 2010, Dr. Lossmann sent a consultation request form to the regional
medical director to request that Plaintiff see Dr. Curran again. (Valley Aff. Exhibits, Dkt.
23-6, p. 15.) In his Affidavit and briefing, Dr. Lossmann does not mention being involved
in Plaintiff’s care at this early date. The regional medical director did not approve another
visit to Dr. Curran, but instead gave orders for an alternative treatment plan. Dr.
Lossmann’s Affidavit does not explain what he did when he received the instructions to
pursue an alternative treatment plan. Rather, Dr. Lossmann’s Affidavit implies that his
first involvement with Plaintiff’s treatment was in September 2010.
Plaintiff submitted an OCF on June 24, 2010, to ask about the follow-up visit with
MEMORANDUM DECISION AND ORDER - 10

Dr. Curran, because the medical unit had not followed up with Plaintiff. (Dkt. 30-2, p. 2.)
Approximately twelve weeks after Plaintiff’s visit with Dr. Curran, on July 10, 2010,
Plaintiff saw a medical staff member, who told Plaintiff that he had missed a medical
appointment that had been scheduled for 1:00 p.m. that day. Plaintiff alleges that the
medical staff member made him sign a “Refused Treatment Form,” but he was unsure
why, because he was never made aware of the appointment. (Journal, Dkt. 30-1, pp. 9.)
Six days later, on July 16, 2010, Plaintiff reported slipping at Pendyne, the prison
kitchen and dining area, where he worked. When Plaintiff went to the medical unit,
Physician’s Assistant (PA) Youkstetter examined him and diagnosed him with bilateral
knee contusions. PA Youkstetter ordered Naproxen and ice bags for Plaintiff. (Lossmann
Aff, Dkt. 23-20.)
Plaintiff alleges that PA Youkstetter said he would schedule an appointment with
Dr. Lossmann in two weeks, but that appointment was never scheduled. Plaintiff
continued to work light duty, despite the injury. (Journal, Dkt. 30-1, p. 10.)
Plaintiff submitted four OCFs on August 8, 2010, to ask for the follow-up visit
with Dr. Curran, a further indication that no plan for Plaintiff’s knee treatment had been
put in place by that time. (Dkt. 30-2, p. 2.)
On September 9, 2010, Plaintiff submitted a Health Services Request form (HSR
or “kite”) regarding pain, swelling, and stiffness in his knee. He was seen by Physician’s
Assistant Cynthia Holmes on the same date, and she examined him and noted there were
no changes since the last examination. She provided him with a knee support, advised
MEMORANDUM DECISION AND ORDER - 11

him to continue Naproxen, and referred him to Dr. Lossmann for a further knee
evaluation, which occurred on September 17, 2010. (Lossmann Aff., Dkt. 23-20.)
Plaintiff continued to work at Pendyne during this time period. (Journal, Dkt. 30-1.)
(1)

Dr. Lossmann

The record reflects that Dr. Lossmann knew of Plaintiff’s serious medical
condition in May 2010 and the need for a treatment plan, including an alternative
treatment plan ordered by the regional medical director, but the record does not indicate
that Dr. Lossmann followed up with Plaintiff to see that he was placed on the alternative
treatment plan or to monitor the success of that plan.
The reasonable inference that can be drawn from Dr. Lossmann’s Affidavit and the
course of treatment in the medical records is that no plan was put in place for Plaintiff’s
knee when the second visit to Dr. Curran was denied by the regional medical director on
May 13, 2010. Plaintiff submitted four OCFs on August 8, 2010, to ask for the follow-up
visit with Dr. Curran, a further indication that no follow-up plan had been put in place by
that time. (Dkt. 30-2, p. 2.)
In addition, the record contains two instances from which an inference can be
drawn that Dr. Lossmann attempted to dissuade Plaintiff from opting for the knee surgery.
Plaintiff alleges that, in September 2010, Dr. Lossman told Plaintiff that he should wait
until he was 75 years old to have the he knee surgery because it had to be repeated every
five years. (Dkt. 30-1, p. 10.)
In his Reply, Dr. Lossmann asserts that he “had no further involvement in the
MEMORANDUM DECISION AND ORDER - 12

treatment of plaintiff” after August 2011. (Dkt. 31, p. 7.) However, in November 2011,
Dr. Song’s consultation request for the surgery bears a note from Dr. Lossmann stating,
“Please call in and discuss this case at noon conference call M-Th,” which Dr. Lossmann
does not explain in his Affidavit. At Plaintiff’s next visit, instead of moving toward
scheduling the surgery, Dr. Song offered several new options, including a partial knee
replacement and a second opinion. (Lossmann Aff., Dkt. 23-20, p. 7.)
Based on the foregoing record, and because all reasonable inferences that can be
drawn from the record must be drawn in Plaintiff’s favor, the Court concludes that a jury
could determine that Dr. Lossmann knew of and ignored Plaintiff’s serious medical
condition in May 2010, when he received the consultation request ordering an alternative
treatment and did not put into place the alternative treatment plan, and that Dr. Lossmann
attempted to delay Plaintiff’s knee surgery, notwithstanding the seriousness of Plaintiff’s
condition, as documented by Dr. Curran. Plaintiff may proceed to trial on his deliberate
indifference claims against Dr. Lossmann.
(2)

Corizon

As to Corizon’s potential liability, Plaintiff alleges:
Defendant [Corizon] has a long history and practice of denying
prisoners medical care, to save money in order to make a profit.
Defendant [Corizon] denies prisoners medical care by hiring unqualified staff, delaying and denying medical staffs’ prescribed treatment,
and setting guidelines on how medical staff are to treat prisoners.
(Dkt. 1, p. 3.)

MEMORANDUM DECISION AND ORDER - 13

Plaintiff submitted many health services request forms (HSRs) or “kites” (sent
directly to the medical unit to request care), offender concern forms (OCFs) (to complain
about the medical unit’s lack of responsiveness to the kites), and a grievance – all
requesting additional care for his knee. The OCF forms and the grievance are the prison’s
manner of providing Corizon supervisors and policymakers notice that individual inmates
believe they are not receiving necessary medical care. The HSRs, OCFs, and the
grievance set forth below all requested additional care for Plaintiff’s knee after September
17, 2010, when Dr. Lossmann saw Plaintiff:
Nov. 23, 2010

Plaintiff delivered an HSR form to the medical unit
requesting to see Dr. Lossmann. (Journal, Dkt. 30-1, p.
11.) Plaintiff also filed an OCF regarding the delay in
surgery for his knee. The response of 12/15/10 was,
“medical has received your health services request for
to be seen[;] you will be scheduled to see a provider.”
(Dkt. 30-2, p. 5.)

Jan 30, 2011

Plaintiff delivered another HSR form to the medical
unit to see Dr. Lossmann about the surgery. He
received no response. (Journal, Dkt. 30-1, p. 11.)

Feb. 25, 2011

Plaintiff filed an OCF regarding why he had not been
seen after he submitted the two HSR forms of 11-2310 and 1-30-11. He requested a visit with Dr.
Lossmann to inform him he wanted to schedule the
recommended knee surgery. The response of 3/3/11
was, “You are scheduled on 3/2/11 in OPC” [a date
that had passed by the time the response was prepared].
(Dkt. 30-2, p. 5.)

March 2, 2011

There is no evidence in the record that Plaintiff was
called out for an appointment on this date.

March 7, 2011

Plaintiff was on the call out for a T.B. shot at 7 a.m., but did

MEMORANDUM DECISION AND ORDER - 14

not go because he “was not able to leave work for the
appointment.” (Journal, Dkt. 30-1, p. 12.) There is no
indication in the record that this appointment was for followup for his knee problems.
March 7, 2011

Plaintiff sent another OCF complaining that he had not
seen Dr. Lossmann yet about the surgery. (Journal,
Dkt. 30-1, p. 12.) The response of 3-15-11 stated, “You
are scheduled, please watch the call-out.” (Dkt. 30-2,
p. 6.)

March 9, 2011

Plaintiff filed a grievance stating: “I’ve made various attempts
through Medical to inform Dr. Lossmann that I no longer feel
I should delay the needed surgery that has been recommended
by [the] orthopedic surgeon at St. Lukes in Meridian on 4-202010 for my damaged left knee.” Despite all of the foregoing
requests, the response was, “I don’t see an HSR to be seen for
this problem since [9/17/10].... Please watch the call out for
an appointment in the next couple of weeks.” (Dkt. 30-2, p.
17.)

March 21, 2011

The medical records show that Plaintiff “put in a grievance
regarding orthopedist recommendation for surgery. Per
[director of nursing] to see consult clinic [with] Lossmann.”
(Dkt. 23-4, p. 27.) Plaintiff had an appointment to see Dr.
Lossmann, and Dr. Lossmann was going to consult with
Plaintiff, but Plaintiff was not seen on that date. Plaintiff was
called to medical, but when he arrived, he was told that no
doctor was available to see him, and that he “had to leave or
get stuck for count.” (Journal, Dtk. 30-1, pp. 12-13.)

March 21, 2011

Despite all of the foregoing requests to the medical unit, Dr.
Lossman declared that, between September 17, 2010, and
March 21, 2011, he did not receive any notice that Plaintiff’s
knee was bothering him again. (Lossmann Aff., Dkt. 23-20, p.
6.)

April 4, 2011

Plaintiff delivered an HSR form to the medical unit. (Journal,
Dkt. 30-1, p. 13.) The 4/15/11 response is: “Patient is
scheduled 4/19/11.” (Dkt. 23-6, p. 30.)

MEMORANDUM DECISION AND ORDER - 15

April 15, 2011

A “Medical Request Disposition/Response” form states: “You
are scheduled. Watch the call-out.” (Dkt. 30-2, p. 30.)
Plaintiff was not called out. (Journal, Dkt. 30-1, p. 13.)

May 15, 2011

Plaintiff sent an OCF to Nurse Walker and asked for
help in scheduling an appointment with Dr. Lossmann,
or he would have no choice but to file a lawsuit.
(Journal, Dkt. 30-1, p. 14.)

May 27, 2011

Plaintiff delivered another HSR to the medical unit to
request to be seen by Dr. Lossmann regarding the knee
surgery. Dr. Lossman’s position is that he was going to
consult with Plaintiff, but Plaintiff left the medical unit
before Dr. Lossmann became available. (Journal, Dkt.
30-1, p. 14.)

July 6, 2011

Plaintiff was seen by Dr. Lossmann, who noted that the last
injection of 4/20/10 worked for only two weeks. Dr.
Lossmann diagnosed Plaintiff’s left knee “OA” as “severe.”
Dr. Lossmann refers Plaintiff back to Dr. Curran for “surgery
v. injection.” (Dkt. 23-4, p. 26.)

Aug. 9, 2011

Plaintiff was taken to see Dr. Curran, who, Plaintiff reports,
“was upset they had (IDOC) waited so long to bring me back
to say ‘yes’ to surgery.” (Journal, Dkt. 30-1, p. 17.)

Aug. 10, 2011

A note in the file indicates that Plaintiff should have been
called into the medical consultation clinic to see Dr.
Lossmann, but that Plaintiff did not appear. (Dkt. 23-4, p. 19.)
Nothing in the record indicates how or if Plaintiff was notified
about this appointment.

Aug. 11, 2011

Plaintiff filed this civil rights lawsuit.

Aug. 22, 2011

Dr. Myung Song, D.O., assessed Plaintiff during a
rescheduled consultation clinic appointment. Plaintiff
requested the knee surgery be performed. Dr. Song requested
the full report of Dr. Curran. (Dkt. 23-4, p. 25.)

Nov. 9, 2011

The request for Plaintiff’s knee surgery is not approved, but is
stamped with a note from Dr. Lossmann asking for a

MEMORANDUM DECISION AND ORDER - 16

conference with Dr. Song on the request. (Dkt. 23-6, p. 8.)
Nov. 17, 2011

Dr. Song offered Plaintiff the option of a unicompartment
replacement rather than a total knee arthroplasty and the
option of a second opinion from Dr. Spelich. (Lossmann Aff.,
Dkt. 23-20, p. 7.)

March 19, 2012

After considering Dr. Song’s advice, including possibly
having a second opinion about a partial knee replacement
surgery and considering religious issues regarding a blood
transfusion for the surgery, Plaintiff consented and received
the knee replacement surgery.

April 17, 2012

Plaintiff was discharged in good condition from the prison
infirmary by Dr. Cathy Whinnery. He was to start physical
therapy the next day.

April 18, 2012

Plaintiff had a physical therapy session. The physical therapist
advised him that he would be attending physical therapy once
a week.

May 22, 2012

Plaintiff filed a grievance stating that he had never seen the
physical therapist again. (Dkt. 30-2, p. 21.) The 5-29-12
response, by Debbie Richardson, was as follows: “Mr. Peña
you have been given priority status for your physical therapy
sessions. Our new on site physical therapist will be here on
June 6, 2012 and you will be seen at that time. I apologize for
the delay in your treatment and assure you that we are making
every effort to address your physical therapy needs. The
reviewing authority concurred in Richardson’s decision: We
have hired a physical therapist on site to provide PT
appointments. We are scheduling people per medical need. I
anticipate being able to address your needs once that provider
is onsite on June 6, 2012. (Dkt. 30-2, p. 21.)

Sept. 26, 2012

Plaintiff returned to Dr. Curran’s office for follow up, where
he saw Patrick McCabe, PA. The medical report reflects:
“Patient is 60 m out left TKA. He is doing well with minimal
discomfort and has returned to baseline stamina. He will be
out of prison in 20 mo and at this point will be released to
return to his trade construction. His ROM is less than optimal

MEMORANDUM DECISION AND ORDER - 17

but acceptable no effusions or other issues.” (Dkt. 23-16, p.
15.)
On the foregoing record, Defendants characterize the time period from April 20,
2010, to July 6, 2011, as one in which “Mr. Peña interfered with any treatment he may
have desired by failing to show for scheduled appointments” (Dkt. 23-2, p. 13), as well as
one in which “Mr. Peña received thorough and continuous medical care and treatment for
his left knee.” (Id., p. 17.) Construing the facts in a light most favorable to Plaintiff, the
Court finds that a jury could conclude otherwise.
Based on the record of care, the Court concludes that Plaintiff has brought forward
sufficient evidence from which a jury could find that Corizon had a custom or practice of
not scheduling follow-up visits with off-site and on-site medical providers for serious
medical conditions, of ignoring inmates’ requests for follow-up visits for serious medical
conditions, of delaying recommended surgeries, and/or of not sufficiently investigating
offender concern forms and grievances filed by inmates – when an investigation into
these complaints could have revealed the substantial communication difficulties within
Corizon’s medical delivery system specifically regarding scheduling care for serious
medical conditions. Plaintiff may proceed to trial on his Eighth Amendment deliberate
indifference claims against Corizon.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 23) is DENIED without

MEMORANDUM DECISION AND ORDER - 18

prejudice.
2.

The Court’s pro bono coordinator, Susie Boring-Headlee, shall contact the
Federal Bar Association’s pro bono liaison to attempt to find counsel for
Plaintiff.

3.

The Court will issue another order regarding the re-opening of discovery
when counsel for Plaintiff has been found, or when it has been determined
that pro bono counsel cannot be found. Plaintiff is encouraged to seek his
own counsel on a contingency or other basis. If the parties wish to proceed
to a settlement conference, they may file a stipulation so requesting.

DATED: March 12, 2014

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

MEMORANDUM DECISION AND ORDER - 19