Wahl v. Agler et al

Filing 31

MEMORANDUM AND ORDER It is therefore ordered that Defendants' motion to strike be, and the same hereby is, DENIED; It is further ordered that Defendants' motion for summary judgment be, and the same hereby is, denied in part, with respect t o the claim against defendant Dr. Agler, and Granted in part, with respect to the claim against defendant CCA. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

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UNITED STATES DISTRICT COURT

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DISTRICT OF IDAHO

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----oo0oo----

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CHAD WAHL,
Plaintiff,

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CIV. NO. 1:13-376 WBS
MEMORANDUM AND ORDER RE: MOTIONS
TO STRIKE AND FOR SUMMARY
JUDGMENT

v.
CCA and DR. DAVID AGLER,

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Defendants.

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----oo0oo---Plaintiff, a state prisoner, brought this civil rights
action under 42 U.S.C. § 1983 against defendants Corrections
Corporation of America (“CCA”) and Dr. Agler, alleging Eighth
Amendment violations.

Presently before the court are defendants’

motions to strike and for summary judgment.
I. Factual and Procedural Background
Plaintiff is an inmate at Idaho Correctional Center
(“ICC”) in Kuna, Idaho.

(Compl. ¶ 1.)

Defendant CCA is a for-

profit corporation, (id. ¶ 2), which was under contract to

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provide medical care to ICC inmates until July 2014, (Agler Decl.

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¶ 2).

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ICC’s medical director and lead physician during the period

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relevant to this action.

Defendant Dr. Agler treated plaintiff while acting as

(Id.)

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On August 31, 2011, plaintiff was attacked in his jail

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cell, and in his defense, he struck the attacker with his fists.

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(Wahl Decl. ¶ 4 (Docket No. 20).)

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X-ray of his hands to diagnose problems resulting from the fight.

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(Agler Decl. ¶ 9 (Docket No. 14).)

The next day, plaintiff had an

On September 2, 2011, Dr.

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Agler saw plaintiff and noted plaintiff had pain, difficulty

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flexing, and “trauma, possible tendon issue vs. strain” in his

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right third finger.

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According to Dr. Agler, the September 1 X-ray showed no fractures

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in plaintiff’s right hand.

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plaintiff a high dose of ibuprofen and ordered that plaintiff’s

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right finger be placed in a splint for six weeks.

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10, Ex. A at 47.)

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two weeks to ensure there were not fractures present.

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Decl. ¶ 10, Ex. A at 47.)

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(Agler Decl. Ex. A at 47 (Docket No. 14-4).)

(Agler Decl. ¶ 12.)

He prescribed

(Agler Decl. ¶

Dr. Agler also ordered a follow-up X-ray in
(Agler

The follow-up X-ray occurred approximately one month

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later on September 30, 2011.

(Agler Decl. Ex. A. at 17.)

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accompanying report noted that shrapnel was embedded in both of

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plaintiff’s hands, and stated, “There is fairly severe

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degenerative disease involving the third MP joint.”

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the bottom of the report is a note saying “10/7/11, Healed fx”

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stamped David Agler, M.D.

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the two sets of X-rays, and the absence of any fractures, he

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decided no further treatment was necessary.

(Id.)

(Id.)

The

At

Dr. Agler states that based on

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(Agler Decl. ¶ 12.)

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Plaintiff, however, continued to experience severe pain

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in his right hand, especially in his middle finger.

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¶ 6.)

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removed.

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Agler complaining of swelling and pain in his right hand but

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received no response.

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own.

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(Wahl Decl.

By October 20, 2011, plaintiff’s splint had not yet been
(Wahl Decl. ¶ 10.)

(Id.)

He submitted a concern form to Dr.

Plaintiff removed the splint on his

(Id.)
Although Dr. Agler saw plaintiff on September 2, 2011,

(see Agler Decl. Ex. A at 47), Dr. Agler did not order a visit to

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an outside orthopedist until January 26, 2012, (Agler Decl. ¶

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16).

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still in extreme pain.

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plaintiff was unable to flex his third finger, and there was

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“minimal pain unless he forces the flexing.”

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46.)

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moving of the finger did not produce any additional pain unless

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it was flexed beyond a certain point.”

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on plaintiff’s limited range of motion in his right hand, Dr.

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Agler requested that plaintiff see an orthopedic surgeon for

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further treatment.

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consult”).)

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At the January 26, 2012 appointment, plaintiff’s hand was
(Wahl Decl. ¶ 12.)

Dr. Agler noted that

(Agler Ex. A at

Plaintiff clarifies that he told the doctor “that the

(Wahl Decl. ¶ 12.)

Based

(Agler Decl. ¶ 16, Ex. A at 32 (noting “ortho

Plaintiff did not see outside orthopedist Dr. Watkins

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until nearly three months later on April 16, 2012.

On

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plaintiff’s first visit, Dr. Watkins noted that plaintiff

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suffered from loss of motion.

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No. 26-2).)

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his middle finger that was “long term in nature.”

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19.)

(Watkins Dep. at 12:13-15 (Docket

Plaintiff also had fairly significant arthritis in
(Id. at 16:16-

Dr. Watkins recommended that plaintiff do stretching
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exercises in an effort to get his motion back and decrease scar

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formation before contemplating surgery.

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Plaintiff made several more visits to Dr. Watkins, at which the

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doctor continued to recommend exercise.1

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appointment with Dr. Watkins on June 22, 2012, Dr. Watkin’s

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nevertheless recommended surgery to increase plaintiff’s range of

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motion.

At plaintiff’s third

(Agler Decl. ¶ 25, Ex. A at 76-77.)
Plaintiff underwent surgery on August 14, 2012.2

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(Id. at 14:14-17.)

(Agler Decl. ¶ 26.)

In the course of surgery, Dr. Watkins

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discovered a hole in plaintiff’s tendon.

(Watkins Dep. at 20:20-

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21.)

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fracture fragment at the base of the middle phalanx that I really

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didn’t appreciate on his X-rays, even when I went back and looked

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at them.”

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of bone to free up the tendon as much as he could.

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20:20-23.)

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had to splint plaintiff’s finger.

Dr. Watkins states that “[a]t surgery, plaintiff had a

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(Id. at 19:12-15.)

Dr. Watkins removed a small piece
(Id. at

However, because of the tendon injury, Dr. Watkins
(Id. at 21:9-10.)

Plaintiff’s post-surgical care after the first

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operation was initially regular.

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post-surgical follow-up appointments on August 22, September 5,

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Plaintiff saw Dr. Watkins again on May 16, 2012, at
which point Dr. Watkins recommended another follow-up in four
weeks, (Agler Decl. ¶ 22, Ex. A at 45, 84), and Dr. Agler ordered
another follow-up. Plaintiff saw Dr. Watkins again on June 22,
2012, approximately five weeks later. (Agler Decl. ¶ 25.)
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Plaintiff saw Dr. Agler for

Dr. Agler states he did not receive the report from the
June 22 Watkins visit until July 25, 2012. (Agler Decl. ¶ 25,
Ex. A at 43 (noting on July 25, 2012, “Reviewed ortho note
recommending surgery. Ordered. Apparently this was the
recommendation based on 6/22/12 appt. but note received today”).)
That same day, Dr. Watkins ordered the surgical procedure
recommended by Dr. Watkins. (Agler Decl. ¶ 25.)
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and September 24 2012.

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appointment, Dr. Watkins noted that despite the first surgery,

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plaintiff still had adhesions of the extensor tendon, and he

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hoped to do an additional surgery when the time comes, “if

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indicated.”

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Watkins further noted he would see plaintiff in four weeks.

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(Id.)

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(Id. ¶¶ 26-32.)

At the September 24

(Tribble Decl. Ex. F (Docket No. 21-6).)

Dr.

A follow-up appointment did not occur within the
prescribed four-week window.

On November 15, 2012, plaintiff had

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still not seen Dr. Watkins again, and he filed a grievance

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stating that Dr. Watkins had discussed a second surgery with him,

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and his hand was still in a lot of pain, and “I am not asking for

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a date. I am just asking if [the second surgery] is going to

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happen.”

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Dr. Agler noted that although the notes from the September 24,

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2014 visit with Dr. Watkins were still “unavailable,” a follow-up

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with Dr. Watkins was scheduled for February 18, 2013.

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Decl. ¶ 35, Ex. A at 38.)

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another grievance inquiring about the second surgery, to which a

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staff member replied, “Attempting to diagnose and treat you via

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concern form is inappropriate.

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with ortho relatively soon.

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put in an HSR.”

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(Wahl Decl. Ex. A at 270.)

As of December 18, 2012,

(Agler

On December 26, 2012, plaintiff filed

You are scheduled to follow up

If you would like to be seen, please

(Id.)

When plaintiff finally returned to Dr. Watkins on

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February 18, 2013, plaintiff still suffered from poor range of

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motion, so Dr. Watkins recommended a second surgery.

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Decl. Ex. A at 201.)

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finger would not return to normal, plaintiff had a chance to

(Agler

Although in Dr. Watkin’s view plaintiff’s

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recover at least half of his normal motion.

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those recommendations the next day, Dr. Agler ordered surgery.

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(Agler Decl. ¶¶ 39-40.)

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performed an extensor tenolysis of plaintiff’s right long finger.

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(Id.)

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plaintiff had osteoarthritis in one of his joints, which further

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complicated treatment, and he believed could have required joint

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replacement in the future.

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(Id.)

Upon seeing

On February 26, 2013, Dr. Watkins

As a result of this surgery, Dr. Watkins discovered that

(Watkin’s Dep. at 20:1-5, 13-21.)

What followed is not entirely clear from the evidence

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submitted by the parties.

Plaintiff states after his second

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surgery, he was supposed to return to Dr. Watkins’ office in one

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month to get his sutures removed.

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to plaintiff’s health services progress notes, as well as Dr.

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Watkin’s notes, plaintiff visited Dr. Watkins for a follow-up

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appointment on March 4, 2013.

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The progress notes state plaintiff returned from that visit with

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right hand sutures “still intact.”

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157.)

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Watkins noted, “I will see [plaintiff] back next week to remove

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his sutures.”

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was too early to remove plaintiff’s sutures because there was

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still a risk plaintiff could open his incision.

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27:25-26:9.)

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appointment with Dr. Watkins for April 3, 2013, (Agler Decl. ¶

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46), but that appointment never occurred.

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states that his office “got a phone call on April the 2nd

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canceling [plaintiff’s] appointment, being informed that they

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were going to reschedule, giving no reason for the cancellation,

(Wahl Decl. ¶ 14.)

According

(Agler Decl. Ex. A at 157, 203.)

(Agler Decl. ¶ 41, Ex. A at

On plaintiff’s March 18, 2013 visit to Dr. Watkins, Dr.

(Id. at 203.)

Dr. Watkins felt at that point, it

(Watkins Dep. at

Dr. Agler supposedly ordered a follow-up

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Instead, Dr. Watkins

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but did not reschedule.”

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states he was forced to remove the sutures on his own.

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Decl. ¶ 14.)

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(Watkins Dep. at 26:17-21.)

Plaintiff
(Wahl

Dr. Agler states that because of security reasons, Dr.

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Watkins was unable to see any ICC patients, and plaintiff’s post-

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operative care was directed to Dr. Care.

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Plaintiff met with Dr. Care on May 8, 2013.

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at 196.)

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infected after the fight, and despite repeated attempts at

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reconstructing the extensor mechanism, he had poor finger

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extension and pain.

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options with him, and stated that although further surgery was

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possible, there were risks, including infection, failure of the

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operation or need for additional operations, reflex sympathetic

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dystrophy, and anesthetic risks.

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discussed amputation.

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(Agler Decl. ¶¶ 47-48.)
(Agler Decl. Ex. A

Dr. Care noted that plaintiff’s right finger had gotten

(Id.)

Dr. Care discussed plaintiff’s

(Id. at 197-98.)

Dr. Care also

(Id. at 198.)

Understanding from Dr. Care that his alternatives to

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amputation were risky and not likely to succeed, and after almost

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two years of extreme pain and delays, plaintiff communicated to

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Dr. Care that he preferred to go with the amputation option.

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(Wahl Decl. ¶ 15.)

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options, and plaintiff elected the surgery.

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On June 6, 2013, Dr. Care performed a long ray amputation on

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plaintiff’s right hand.

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Dr. Agler spoke with plaintiff regarding his
(Agler Decl. ¶ 50.)

(Agler Decl. ¶ 53, Ex. A at 183.)

Plaintiff brought Eighth Amendment claims against Dr.

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Agler and CCA for harm he suffered as a result of allegedly

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purposeful delays in treatment of his finger.

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(Docket No. 1).)

(See Compl.

Defendants now move for summary judgment
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pursuant to Federal Rule of Procedure 56.

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also move to strike several exhibits that plaintiff offered in

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support of his Response to defendants’ motion.

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II. Defendants’ Motion to Strike

(Docket No. 14.)

They

(Docket No. 23.)

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Exhibits A, B, C, G, and H to the Tribble Declaration,

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offered by plaintiff in support of his opposition to defendants’

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motion for summary judgment, are documents from another case

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plaintiff’s counsel brought in this district, Caplinger v. CCA,

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Civ. No. 1:12-537.3

Defendants move to strike the five exhibits

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on the basis that plaintiff never identified or produced them

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during discovery for the instant case.4

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at 1 (Docket No. 26).)

(Defs.’ Mot. to Strike

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These five exhibits come from discovery conducted by
the Tribble Law Firm in Caplinger. Exhibit A is a deposition
Tribble took of Dr. Agler, who was also named as a defendant in
the Caplinger case (Docket No. 21-1); Exhibit B is a deposition
of Chris Penn, Chief of Security with Correction Corporation of
America (“CCA”) (Docket No. 21-2); Exhibits C and G are CCA’s
responses to plaintiff’s interrogatories and requests for
production (Docket Nos. 21-3, 21-7, 21-8); and Exhibit H is a
deposition of Acel Thacker, Health Services Administrator at CCA
(Docket No. 21-9).
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Defendants also object to portions of plaintiff’s
declaration on the basis that it contains hearsay. (Defs.’ Mot.
to Strike at 6.) Paragraphs 15 and 17 reference out-of-court
statements made by Dr. Care, an outside treating physician. (See
Wahl Decl. ¶ 15 (“Dr. Care made it sound like any of my
alternatives to amputation were risky and not likely to
succeed.”); id. ¶ 17 (“Dr. Care talked me into the surgery . . .
.”).) Plaintiff does not appear to be offering these statements
for the truth of the matter asserted, but rather to show the
effect Dr. Care’s advice had on plaintiff’s decision to agree to
amputation. Furthermore, the court is hesitant to entertain
hearsay objections on a motion for summary judgment, where
defendants have not shown plaintiff would be unable to present
them in a form that would be admissible at trial.
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Rule 26(a) requires that a party disclose copies of all

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documents in its possession, custody, or control and may use to

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support its claims or defenses.

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Counsel for plaintiff concedes he failed to disclose the

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Caplinger documents to defendants, “due to a clerical error and

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misunderstanding arising out of conversations between

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[plaintiff’s counsel] Mr. Tribble and Mr. Stoll, an attorney who

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no longer works at [defendants’ firm] Naylor & Hales.”

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Resp. at 2 (Docket No. 26).)

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Fed. R. Civ. P. 26(a)(1)(A)(ii).

(Pl.’s

Federal Rule of Civil Procedure 37(c)(1) provides that

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“[i]f a party fails to provide information . . . as required by

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Rule 26(a) or (e), the party is not allowed to use that

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information . . . to supply evidence on a motion . . . unless the

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failure was substantially justified or is harmless.”

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Civ. P. 37(c)(1).

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the mandatory . . . disclosure requirements’ of Rule 26(a) and

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(e).”

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843, 861 (9th Cir. 2014).

Fed. R.

“Rule 37(c)(1) ‘is intended to put teeth into

Ollier v. Sweetwater Union High School Dist., 768 F.3d

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“Rule 37(c)(1) provides for the ‘automatic’ and ‘self-

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executing’ exclusion of an expert witness if the discovery rules

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have not been complied with.”

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(citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d

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1101, 1106 (9th Cir. 2001)).

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the burden of establishing such a failure was “substantially

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justified” or “harmless.”

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673 F.3d 1240 (9th Cir. 2012).

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Morse v. SEG U.S. 95, LLC, at *4

The party who fails to disclose has

R&R Sails, Inc. v. Ins. Co. of Pa.,

Plaintiff’s counsel argues his failure to disclose the
exhibits was substantially justified by a misunderstanding.
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Naylor & Hales, counsel for defendants, and Tribble Law Firm,

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counsel for plaintiff, are also representing defendants and

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plaintiff, respectively, in Caplinger, as well as several other

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cases.

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states that while working on those other cases, he had several

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conversations with Naylor & Hales attorney James Stoll, who has

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since left the firm.

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desires to use information obtained on each case for the other

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cases.

(Tribble Decl. ¶ 4.)

Plaintiff’s counsel Aaron Tribble

(Id. ¶ 5.)

Mr. Tribble communicated his

He states, “It was my understanding that Mr. Stoll

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understood this, and this understanding was reflected in a

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stipulated protective order on the Loftis case allowing use of

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the information for other cases where I would represent other

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plaintiffs.”

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copy of the protective order in the Loftis case.

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plaintiff further states that sometime last year, Mr. Stoll left

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the employ of Naylor & Hales.

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mind, Mr. Tribble inadvertently erred in not disclosing these

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materials to the defendant’s [sic] attorneys.”

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Mot. to Strike at 2 (Docket No. 26).)

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(Id.)

Plaintiff did not provide the court with a

(Id.)

Counsel for

“With this understanding in

(Pl.’s Resp. to

The court finds it difficult to see how Mr. Tribble

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understood that the implied agreement between Mr. Stoll and him

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would have relieved plaintiff of his duties to disclose the

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Caplinger exhibits.

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materials from each case would be used on the other related cases

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when needed,” there was no blanket agreement that, when a party

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decided to use a selection of those materials for another case,

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that party would then have no duty to disclose its selection.

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Even if the two attorneys agreed “that the

Nevertheless, the court finds plaintiff’s non10

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disclosure of the exhibits harmless.

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counsel was unable to explain to the court what it would have

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done differently during discovery had it been aware that

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plaintiff planned to rely on the depositions and interrogatories

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from Caplinger to show a pattern of delay in medical treatment.

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Defendants argue that had plaintiff properly disclosed the

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documents, “they would have identified adequate documents and

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witnesses and specifically addressed Wahl’s evidence in their

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initial motion for summary judgment, instead of having to respond

At the hearing, defense

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in a reply memorandum without any adequately disclosed documents

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of their own.”

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(Docket No. 27).)

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their reply based on the untimely disclosure, the court would

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have granted it.

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the court finds the nondisclosure of exhibits A, B, C, G, and H

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to be harmless, the court denies defendants’ motion to strike

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those exhibits.

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III. Eighth Amendment Claims

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(Def.’s Reply in Support of Mot. to Strike at 3
Had defendants felt they needed more time for

Defendants never made that request.

Because

Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

Id. at

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324 (quoting then-Fed. R. Civ. P. 56(e)).

To carry this burden,

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

Id. at

“Credibility determinations, the weighing of the evidence,

Id.

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A. Eighth Amendment Claim Against Dr. Agler

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To state a claim under 42 U.S.C. § 1983 based on

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inadequate medical care under the Eighth Amendment, plaintiff

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must show Dr. Agler acted with deliberate indifference to
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plaintiff’s serious medical needs.”5

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97, 104 (1976) (“[D]eliberate indifference to serious medical

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needs of prisoners constitutes the unnecessary and wanton

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infliction of pain proscribed by the Eighth Amendment.” (internal

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quotation marks and citation omitted)).

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is a high legal standard,” and it requires more than a showing

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that prison officials were negligent.

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1051, 1060 (9th Cir. 2004).

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purposeful act or failure to respond to a prisoner’s pain or

Estelle v. Gamble, 429 U.S.

“Deliberate indifference

Toguchi v. Chung, 391 F.3d

Plaintiff must show “(a) a

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possible medical need and (b) harm caused by the indifference.”

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See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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1. Delay

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“Indifference ‘may appear when prison officials deny,

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delay or intentionally interfere with medical treatment . . . .’”

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Jett, 439 F.3d at 1096 (quoting Hutchinson v. United States, 838

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F.2d 390, 392 (9th Cir. 1988)).

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Plaintiff complains, inter alia,

The parties do not contest that plaintiff’s medical
need was serious. See Jett v. Penner, 439 F.3d 1091 (9th Cir.
2006) (holding that to maintain an Eighth Amendment claim, the
plaintiff must show a “serious medical need”).
Further, although defendant is not a public employee,
there is no issue of state action here. “A § 1983 plaintiff must
demonstrate . . . that the defendant acted under the color of
state law,” meaning “‘the party charged with the deprivation must
be a person who may fairly be said to be a [governmental]
actor.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)
(quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937
(1982)). The Supreme Court has held that private physicians
employed by the state to provide medical services to state prison
inmates act under the color of state law for purposes of § 1983
when undertaking their duties to treat an inmate’s injuries.
West v. Atkins, 487 U.S. 42, 54 (1988). Dr. Agler’s care of
plaintiff falls within the ambit of Atkins. Although Dr. Agler
acted as an employee of a private contractor, he acted under the
color of state law for the purposes of § 1983 when he treated
plaintiff.
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of a significant delay between his injury and his first visit

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with an orthopedist.

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Although Dr. Agler saw plaintiff on September 2, 2011,

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(see Agler Decl. Ex. A at 47), he did not order a visit to an

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outside orthopedist until January 26, 2012, (Agler Decl. ¶ 16).

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Even after Dr. Agler ordered the appointment on January 26,

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plaintiff did not actually see Dr. Watkins until on April 16,

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2012. (See id. ¶ 20.)

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plaintiff’s referral to Dr. Watkins covered the period from

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Therefore, the initial delay in

September 2, 2011 to April 16, 2012.

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Plaintiff offers sufficient evidence that Dr. Agler was

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aware of plaintiff’s need to see an orthopedist from October 7,

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2011 onward.

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fractures, (Agler Decl. ¶ 12), and plaintiff has not provided

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evidence from which a reasonable jury could infer that at that

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point Dr. Agler had knowledge that plaintiff’s hand required a

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referral to an orthopedist.6

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September 30 reported that plaintiff suffered from a degenerative

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disease.

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degenerative disease involving the third MP joint.”)

Dr. Agler states the September 1 X-ray revealed no

However, the follow-up X-ray on

(See Agler Decl. Ex. A at 17 (“There is fairly severe
Although

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Dr. Watkins also viewed X-rays of plaintiff’s finger,
and did not see it indicated that plaintiff suffered a fracture.
See Naylor Decl. Ex. A at 18:18-21 (“Interestingly, [plaintiff]
had a fracture that I didn’t really appreciate in his X-ray
because it was arthritic, but it was a small loose fracture
fragment.”); id. at 19:12-15 (“At surgery, plaintiff had a
fracture fragment at the base of the middle phalanx that I really
didn’t appreciate on his X-rays, even when I went back and looked
at them.”).) Plaintiff offers no other evidence supporting the
inference that Dr. Agler had knowledge on September 2 that
plaintiff had suffered from a fracture.
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Dr. Agler appears to have reviewed the report on October 7, 2011,

2

(see id. (“10/7/11/ Healed fx / David Agler.”)), he still did not

3

order any further treatment for plaintiff’s hand.

4

the September 30 report, plaintiff filed a grievance on October

5

20, 2011 stating he was suffering from pain.

6

Ex. A at 294.)

7

grievance, plaintiff is entitled to the inference in his favor

8

that if the grievance was in his record, the doctor was aware of

9

it.

In addition to

(Wahl Decl. ¶ 10,

Although Dr. Agler states he never saw the

See Jett, 439 F.3d at 1091, 1097 (holding that, as the party

10

opposing the defendant’s motion for summary judgment, plaintiff

11

was entitled to the inference that the doctor was aware of filed

12

grievances, medical slips, and aftercare instructions in

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plaintiff’s medical record).

14

Despite Dr. Agler’s awareness of plaintiff’s pain and

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the report of degenerative disease in plaintiff’s middle finger,

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Dr. Agler provided no immediate further treatment for plaintiff’s

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hand.

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even followed up with plaintiff to remove the splint from

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plaintiff’s finger, and plaintiff had to remove it on his own.

20

(Wahl Decl. ¶ 10.)

21

infer purposeful delay, having concluded that Dr. Agler became

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aware that plaintiff had a degenerative disease in his middle

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finger when he reviewed the X-ray report on October 7, 2011 and

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yet failed to respond to the continued swelling and pain

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plaintiff experienced.

26

(9th Cir. 2011) (holding that plaintiff stated a claim for

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deliberate indifference where doctor was aware of the plaintiff’s

28

pain and mobility problems, but delayed referring plaintiff to an

(See Agler Decl. ¶ 3.)

Plaintiff states Dr. Agler never

From this evidence, a reasonable jury could

See Tyler v. Smith, 458 Fed. Appx. 597

15

1

orthopedist).

2

The record also supports the inference that Dr. Agler’s

3

purposeful delay of plaintiff’s treatment continued for several

4

months even after he admitted that plaintiff needed to see an

5

orthopedist.

6

an orthopedic surgeon for his limited range of motion on January

7

26, 2012, (see Agler. Decl. ¶ 16), plaintiff did not have an

8

appointment with Dr. Watkins until nearly three months later on

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April 16, 2012, (see id. ¶ 20).

Although Dr. Agler noted that plaintiff should see

As Medical Director, Dr. Agler

10

was responsible for directing general patient care for all

11

inmates and “[making] sure [staff are] all on the same page when

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it comes to appropriate treatment and inappropriate treatment.”

13

(Tribble Decl. Ex. A at 27:5-10.)

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responsibility as the person in charge to ensure that plaintiff’s

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appointment was timely scheduled.

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explanation for the further delay.

17

find that Dr. Agler purposely delayed plaintiff’s treatment from

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October 7, 2011, until April 16, 2012, despite being aware that

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plaintiff’s condition required the care of an outside

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consultant.7

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Therefore, it was Dr. Agler’s

Dr. Agler does not offer an
A reasonable jury could thus

2. Resulting Harm

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It is not enough for plaintiff to point to a delay in

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his referral to Dr. Watkins: plaintiff must show that delay was

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harmful.

See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.

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26
27
28

7

Plaintiff complains of a number of delays in treatment
for his finger. Because the evidence at least supports a finding
that the September 2011 to April 2012 delay constituted
deliberate indifference and caused harm, the court need not
address the additional delays.
16

1

1992) (“[W]hen . . . a claim alleges ‘mere delay of surgery,’ a

2

prisoner can make ‘no claim for deliberate indifference unless

3

the denial was harmful.”) (quoting Shapley v. Nev. Bd. of State

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Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam))

5

(overruled on other grounds by WMX Technologies, Inc. v. Miller,

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104 F.3d 1133 (1997)).

7

Although Dr. Watkins indicated at one point in his

8

deposition that he was unable to address whether delays caused

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plaintiff harm, elsewhere he stated, “I’m sure [plaintiff] would

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have benefited by seeing a hand surgeon shortly after he had his

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accident or his altercation.

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have gotten better more quickly had he had prompt care and if he

13

saw a hand surgeon six or ten months later.”

14

50:21-51:4.)

15

would have benefited by having reasonable care early, as soon as

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possible after the injury.”

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statements, a reasonable jury could find that plaintiff suffered

18

harm as a result of the initial delay in his referral to a hand

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surgeon.

20

He would have been more likely to

(Watkins Dep. at

Further on, Watkins added, “I think that Mr. Wahl

(Id. at 52:11-13.)

From those

Because the record supports the inference that Dr.

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Agler deliberately and unnecessarily delayed plaintiff’s referral

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to a hand surgeon despite being aware that plaintiff suffered

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from a degenerative disease, and that the delay caused harm, the

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court must deny defendant’s motion for summary judgment with

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respect to plaintiff’s Eighth Amendment claim against Dr. Agler.

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See Jett, 439 F.3d at 1096.

27

B. Monell Claim Against CCA

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Plaintiff has also brought a Monell claim against CCA.8

1
2

“An act performed pursuant to a ‘custom’ that has not been

3

formally approved by an appropriate decision-maker may fairly

4

subject a municipality to liability on the theory that the

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relevant practice is so widespread as to have the force of law.”

6

Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (citing

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,

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690-91 (1978)).

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entities such as prisons.

Monell has been extended to operators of private
See Tsao v. Desert Palace, Inc., 698

10

F.3d 1128, 1138-39 (9th Cir. 2012) (holding that Monell liability

11

applies to suits against private entities under § 1983).

12

To prevail on this theory, a plaintiff has “to prove

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‘the existence of a widespread practice that ... is so permanent

14

and well settled as to constitute a ‘custom or usage’ with the

15

force of law.’” Gillette v. Delmore, 979 F.2d 1342, 1348-1349

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(9th Cir. 1992) (quoting City of St. Louis v. Praprotnik, 485

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U.S. 112, 127 (1989) (internal quotations omitted)).

Plaintiff

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8

Although defendant did not raise the issue of state
action, it is worth noting that the Supreme Court has not yet
addressed whether private prison management companies are state
actors for the purposes of § 1983. Several circuits have held
that private prison management companies contracting with the
state act under the color of state law. See, e.g. Rosborough v.
Mgmt. and Training Corp., 350 F.3d 459, 461 (5th Cir. 2003)
(holding private prison-management companies and their employees
are subject to §1983 liability because they are performing a
government function); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102
(6th Cir. 1991) (same); see also Hayes v. Corrs. Corp. of Am.,
Civ. No. 1:09-00122 BLW, 2012 WL 4481212, at *18 n.14 (D. Idaho
Sept. 28, 2012) (recognizing that CCA is a state actor subject to
suit under § 1983). Because the court has separate ground for
granting summary judgment on the claim against CCA, it need not
decide the issue of whether CCA acted under the color of state
law in its alleged practice of delaying treatment.
18

1

must show the custom or practice was the “moving force” behind

2

the constitutional violation.

3

477 F.3d 652, 667 (9th Cir. 2007).

4

Agler, as the medical director at the prison, was simply

5

enforcing CCA’s custom as it related to the scheduling of

6

expensive offsite visits to private specialist such as Dr.

7

Watkins.”

8
9

See Galen v. Cnty. of Los Angeles,
Plaintiff argues that “Dr.

(Pl.’s Resp. at 10.)
Plaintiff’s only evidence of a custom or practice are

depositions and interrogatories produced during discovery in

10

Caplinger, another case involving an inmate at ICC who also

11

experienced delays in medical treatment.

12

there were consistent delays in his visits to Dr. Watkins despite

13

his constant severe pain, broken bone, and torn ligaments, but he

14

ultimately lost on motion for summary judgment.

15

CCA, 999 F. Supp. 2d 1203, 1217-18 (D. Idaho 2014) (Winmill, J.)

16

(holding the record did not support the inference that CCA had a

17

custom of delaying appointments to outside providers).

18

there were also delays in Caplinger, taken together, two

19

instances of delay is insufficient to establish a custom “with

20

the force of law.”

21

Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) (“Although this

22

court has not adopted any bright-line rules for establishing what

23

constitutes a widespread custom or practice, it is clear that a

24

single incident--or even three incidents--do not suffice.”).

25

Plaintiff points to no other evidence indicating that CCA had a

26

widespread, settled custom of purposely delaying expensive

27

offsite visits that was the “moving force” behind an Eighth

28

Amendment violation.

Caplinger alleged that

See Caplinger v.

Even if

See Gillette, 979 F.2d at 1348-49; Wilson v.

See Galen, 477 F.3d at 667; Gillette, 979
19

1

F.2d at 1349.

2

CCA officials were aware that an informal custom of delays

3

existed.

4

Monell liability where the plaintiff failed to present evidence

5

that City Manager and City Counsel helped formulate or were aware

6

of an informal policy of disciplining public safety employees who

7

were critical of operations).

8

evidence of a policy or custom in connection with his alleged

9

constitutional deprivations, so his Monell claim must fail.

Plaintiff has failed to present any evidence that

See Gillette, 979 F.2d at 1349 (holding there was no

Plaintiff thus offers insufficient

10

Accordingly, the court will grant defendants’ motion with respect

11

to the Monell claim against CCA.

12
13

IT IS THEREFORE ORDERED that defendants’ motion to
strike be, and the same hereby is, DENIED;

14

IT IS FURTHER ORDERED that defendants’ motion for

15

summary judgment be, and the same hereby is, DENIED in part, with

16

respect to the claim against defendant Dr. Agler, and GRANTED in

17

part, with respect to the claim against defendant CCA.

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Dated:

February 2, 2015

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