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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 CHAD WAHL, Plaintiff, 13 14 15 CIV. NO. 1:13-376 WBS MEMORANDUM AND ORDER RE: MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT v. CCA and DR. DAVID AGLER, 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 ----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 28 1 1 provide medical care to ICC inmates until July 2014, (Agler Decl. 2 ¶ 2). 3 ICC’s medical director and lead physician during the period 4 relevant to this action. Defendant Dr. Agler treated plaintiff while acting as (Id.) 5 On August 31, 2011, plaintiff was attacked in his jail 6 cell, and in his defense, he struck the attacker with his fists. 7 (Wahl Decl. ¶ 4 (Docket No. 20).) 8 X-ray of his hands to diagnose problems resulting from the fight. 9 (Agler Decl. ¶ 9 (Docket No. 14).) The next day, plaintiff had an On September 2, 2011, Dr. 10 Agler saw plaintiff and noted plaintiff had pain, difficulty 11 flexing, and “trauma, possible tendon issue vs. strain” in his 12 right third finger. 13 According to Dr. Agler, the September 1 X-ray showed no fractures 14 in plaintiff’s right hand. 15 plaintiff a high dose of ibuprofen and ordered that plaintiff’s 16 right finger be placed in a splint for six weeks. 17 10, Ex. A at 47.) 18 two weeks to ensure there were not fractures present. 19 Decl. ¶ 10, Ex. A at 47.) 20 (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 21 later on September 30, 2011. (Agler Decl. Ex. A. at 17.) 22 accompanying report noted that shrapnel was embedded in both of 23 plaintiff’s hands, and stated, “There is fairly severe 24 degenerative disease involving the third MP joint.” 25 the bottom of the report is a note saying “10/7/11, Healed fx” 26 stamped David Agler, M.D. 27 the two sets of X-rays, and the absence of any fractures, he 28 decided no further treatment was necessary. (Id.) (Id.) The At Dr. Agler states that based on 2 (Agler Decl. ¶ 12.) 1 Plaintiff, however, continued to experience severe pain 2 in his right hand, especially in his middle finger. 3 ¶ 6.) 4 removed. 5 Agler complaining of swelling and pain in his right hand but 6 received no response. 7 own. 8 9 (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 10 an outside orthopedist until January 26, 2012, (Agler Decl. ¶ 11 16). 12 still in extreme pain. 13 plaintiff was unable to flex his third finger, and there was 14 “minimal pain unless he forces the flexing.” 15 46.) 16 moving of the finger did not produce any additional pain unless 17 it was flexed beyond a certain point.” 18 on plaintiff’s limited range of motion in his right hand, Dr. 19 Agler requested that plaintiff see an orthopedic surgeon for 20 further treatment. 21 consult”).) 22 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 23 until nearly three months later on April 16, 2012. On 24 plaintiff’s first visit, Dr. Watkins noted that plaintiff 25 suffered from loss of motion. 26 No. 26-2).) 27 his middle finger that was “long term in nature.” 28 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 3 1 exercises in an effort to get his motion back and decrease scar 2 formation before contemplating surgery. 3 Plaintiff made several more visits to Dr. Watkins, at which the 4 doctor continued to recommend exercise.1 5 appointment with Dr. Watkins on June 22, 2012, Dr. Watkin’s 6 nevertheless recommended surgery to increase plaintiff’s range of 7 motion. At plaintiff’s third (Agler Decl. ¶ 25, Ex. A at 76-77.) Plaintiff underwent surgery on August 14, 2012.2 8 9 (Id. at 14:14-17.) (Agler Decl. ¶ 26.) In the course of surgery, Dr. Watkins 10 discovered a hole in plaintiff’s tendon. (Watkins Dep. at 20:20- 11 21.) 12 fracture fragment at the base of the middle phalanx that I really 13 didn’t appreciate on his X-rays, even when I went back and looked 14 at them.” 15 of bone to free up the tendon as much as he could. 16 20:20-23.) 17 had to splint plaintiff’s finger. Dr. Watkins states that “[a]t surgery, plaintiff had a 18 (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 19 operation was initially regular. 20 post-surgical follow-up appointments on August 22, September 5, 21 22 23 24 1 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.) 2 25 26 27 28 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.) 4 1 and September 24 2012. 2 appointment, Dr. Watkins noted that despite the first surgery, 3 plaintiff still had adhesions of the extensor tendon, and he 4 hoped to do an additional surgery when the time comes, “if 5 indicated.” 6 Watkins further noted he would see plaintiff in four weeks. 7 (Id.) 8 9 (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 10 still not seen Dr. Watkins again, and he filed a grievance 11 stating that Dr. Watkins had discussed a second surgery with him, 12 and his hand was still in a lot of pain, and “I am not asking for 13 a date. I am just asking if [the second surgery] is going to 14 happen.” 15 Dr. Agler noted that although the notes from the September 24, 16 2014 visit with Dr. Watkins were still “unavailable,” a follow-up 17 with Dr. Watkins was scheduled for February 18, 2013. 18 Decl. ¶ 35, Ex. A at 38.) 19 another grievance inquiring about the second surgery, to which a 20 staff member replied, “Attempting to diagnose and treat you via 21 concern form is inappropriate. 22 with ortho relatively soon. 23 put in an HSR.” 24 (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 25 February 18, 2013, plaintiff still suffered from poor range of 26 motion, so Dr. Watkins recommended a second surgery. 27 Decl. Ex. A at 201.) 28 finger would not return to normal, plaintiff had a chance to (Agler Although in Dr. Watkin’s view plaintiff’s 5 1 recover at least half of his normal motion. 2 those recommendations the next day, Dr. Agler ordered surgery. 3 (Agler Decl. ¶¶ 39-40.) 4 performed an extensor tenolysis of plaintiff’s right long finger. 5 (Id.) 6 plaintiff had osteoarthritis in one of his joints, which further 7 complicated treatment, and he believed could have required joint 8 replacement in the future. 9 (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 10 submitted by the parties. Plaintiff states after his second 11 surgery, he was supposed to return to Dr. Watkins’ office in one 12 month to get his sutures removed. 13 to plaintiff’s health services progress notes, as well as Dr. 14 Watkin’s notes, plaintiff visited Dr. Watkins for a follow-up 15 appointment on March 4, 2013. 16 The progress notes state plaintiff returned from that visit with 17 right hand sutures “still intact.” 18 157.) 19 Watkins noted, “I will see [plaintiff] back next week to remove 20 his sutures.” 21 was too early to remove plaintiff’s sutures because there was 22 still a risk plaintiff could open his incision. 23 27:25-26:9.) 24 appointment with Dr. Watkins for April 3, 2013, (Agler Decl. ¶ 25 46), but that appointment never occurred. 26 states that his office “got a phone call on April the 2nd 27 canceling [plaintiff’s] appointment, being informed that they 28 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 6 Instead, Dr. Watkins 1 but did not reschedule.” 2 states he was forced to remove the sutures on his own. 3 Decl. ¶ 14.) 4 (Watkins Dep. at 26:17-21.) Plaintiff (Wahl Dr. Agler states that because of security reasons, Dr. 5 Watkins was unable to see any ICC patients, and plaintiff’s post- 6 operative care was directed to Dr. Care. 7 Plaintiff met with Dr. Care on May 8, 2013. 8 at 196.) 9 infected after the fight, and despite repeated attempts at 10 reconstructing the extensor mechanism, he had poor finger 11 extension and pain. 12 options with him, and stated that although further surgery was 13 possible, there were risks, including infection, failure of the 14 operation or need for additional operations, reflex sympathetic 15 dystrophy, and anesthetic risks. 16 discussed amputation. 17 (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 18 amputation were risky and not likely to succeed, and after almost 19 two years of extreme pain and delays, plaintiff communicated to 20 Dr. Care that he preferred to go with the amputation option. 21 (Wahl Decl. ¶ 15.) 22 options, and plaintiff elected the surgery. 23 On June 6, 2013, Dr. Care performed a long ray amputation on 24 plaintiff’s right hand. 25 Dr. Agler spoke with plaintiff regarding his (Agler Decl. ¶ 50.) (Agler Decl. ¶ 53, Ex. A at 183.) Plaintiff brought Eighth Amendment claims against Dr. 26 Agler and CCA for harm he suffered as a result of allegedly 27 purposeful delays in treatment of his finger. 28 (Docket No. 1).) (See Compl. Defendants now move for summary judgment 7 1 pursuant to Federal Rule of Procedure 56. 2 also move to strike several exhibits that plaintiff offered in 3 support of his Response to defendants’ motion. 4 II. Defendants’ Motion to Strike (Docket No. 14.) They (Docket No. 23.) 5 Exhibits A, B, C, G, and H to the Tribble Declaration, 6 offered by plaintiff in support of his opposition to defendants’ 7 motion for summary judgment, are documents from another case 8 plaintiff’s counsel brought in this district, Caplinger v. CCA, 9 Civ. No. 1:12-537.3 Defendants move to strike the five exhibits 10 on the basis that plaintiff never identified or produced them 11 during discovery for the instant case.4 12 at 1 (Docket No. 26).) (Defs.’ Mot. to Strike 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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). 4 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. 8 1 Rule 26(a) requires that a party disclose copies of all 2 documents in its possession, custody, or control and may use to 3 support its claims or defenses. 4 Counsel for plaintiff concedes he failed to disclose the 5 Caplinger documents to defendants, “due to a clerical error and 6 misunderstanding arising out of conversations between 7 [plaintiff’s counsel] Mr. Tribble and Mr. Stoll, an attorney who 8 no longer works at [defendants’ firm] Naylor & Hales.” 9 Resp. at 2 (Docket No. 26).) 10 Fed. R. Civ. P. 26(a)(1)(A)(ii). (Pl.’s Federal Rule of Civil Procedure 37(c)(1) provides that 11 “[i]f a party fails to provide information . . . as required by 12 Rule 26(a) or (e), the party is not allowed to use that 13 information . . . to supply evidence on a motion . . . unless the 14 failure was substantially justified or is harmless.” 15 Civ. P. 37(c)(1). 16 the mandatory . . . disclosure requirements’ of Rule 26(a) and 17 (e).” 18 843, 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 19 “Rule 37(c)(1) provides for the ‘automatic’ and ‘self- 20 executing’ exclusion of an expert witness if the discovery rules 21 have not been complied with.” 22 (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 23 1101, 1106 (9th Cir. 2001)). 24 the burden of establishing such a failure was “substantially 25 justified” or “harmless.” 26 673 F.3d 1240 (9th Cir. 2012). 27 28 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. 9 1 Naylor & Hales, counsel for defendants, and Tribble Law Firm, 2 counsel for plaintiff, are also representing defendants and 3 plaintiff, respectively, in Caplinger, as well as several other 4 cases. 5 states that while working on those other cases, he had several 6 conversations with Naylor & Hales attorney James Stoll, who has 7 since left the firm. 8 desires to use information obtained on each case for the other 9 cases. (Tribble Decl. ¶ 4.) Plaintiff’s counsel Aaron Tribble (Id. ¶ 5.) Mr. Tribble communicated his He states, “It was my understanding that Mr. Stoll 10 understood this, and this understanding was reflected in a 11 stipulated protective order on the Loftis case allowing use of 12 the information for other cases where I would represent other 13 plaintiffs.” 14 copy of the protective order in the Loftis case. 15 plaintiff further states that sometime last year, Mr. Stoll left 16 the employ of Naylor & Hales. 17 mind, Mr. Tribble inadvertently erred in not disclosing these 18 materials to the defendant’s [sic] attorneys.” 19 Mot. to Strike at 2 (Docket No. 26).) 20 (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 21 understood that the implied agreement between Mr. Stoll and him 22 would have relieved plaintiff of his duties to disclose the 23 Caplinger exhibits. 24 materials from each case would be used on the other related cases 25 when needed,” there was no blanket agreement that, when a party 26 decided to use a selection of those materials for another case, 27 that party would then have no duty to disclose its selection. 28 Even if the two attorneys agreed “that the Nevertheless, the court finds plaintiff’s non10 1 disclosure of the exhibits harmless. 2 counsel was unable to explain to the court what it would have 3 done differently during discovery had it been aware that 4 plaintiff planned to rely on the depositions and interrogatories 5 from Caplinger to show a pattern of delay in medical treatment. 6 Defendants argue that had plaintiff properly disclosed the 7 documents, “they would have identified adequate documents and 8 witnesses and specifically addressed Wahl’s evidence in their 9 initial motion for summary judgment, instead of having to respond At the hearing, defense 10 in a reply memorandum without any adequately disclosed documents 11 of their own.” 12 (Docket No. 27).) 13 their reply based on the untimely disclosure, the court would 14 have granted it. 15 the court finds the nondisclosure of exhibits A, B, C, G, and H 16 to be harmless, the court denies defendants’ motion to strike 17 those exhibits. 18 III. Eighth Amendment Claims 19 (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 20 there is no genuine dispute as to any material fact and the 21 movant is entitled to judgment as a matter of law.” 22 P. 56(a). 23 of the suit, and a genuine issue is one that could permit a 24 reasonable jury to enter a verdict in the non-moving party’s 25 favor. 26 (1986). 27 burden of establishing the absence of a genuine issue of material 28 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 11 1 negates an essential element of the non-moving party’s case. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 3 Alternatively, the moving party can demonstrate that the non- 4 moving party cannot produce evidence to support an essential 5 element upon which it will bear the burden of proof at trial. 6 Id. 7 Once the moving party meets its initial burden, the 8 burden shifts to the non-moving party to “designate ‘specific 9 facts showing that there is a genuine issue for trial.’” Id. at 10 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, 11 the non-moving party must “do more than simply show that there is 12 some metaphysical doubt as to the material facts.” 13 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 14 “The mere existence of a scintilla of evidence . . . will be 15 insufficient; there must be evidence on which the jury could 16 reasonably find for the [non-moving party].” 17 at 252. Matsushita Anderson, 477 U.S. 18 In deciding a summary judgment motion, the court must 19 view the evidence in the light most favorable to the non-moving 20 party and draw all justifiable inferences in its favor. 21 255. 22 and the drawing of legitimate inferences from the facts are jury 23 functions, not those of a judge . . . ruling on a motion for 24 summary judgment . . . .” Id. at “Credibility determinations, the weighing of the evidence, Id. 25 A. Eighth Amendment Claim Against Dr. Agler 26 To state a claim under 42 U.S.C. § 1983 based on 27 inadequate medical care under the Eighth Amendment, plaintiff 28 must show Dr. Agler acted with deliberate indifference to 12 1 plaintiff’s serious medical needs.”5 2 97, 104 (1976) (“[D]eliberate indifference to serious medical 3 needs of prisoners constitutes the unnecessary and wanton 4 infliction of pain proscribed by the Eighth Amendment.” (internal 5 quotation marks and citation omitted)). 6 is a high legal standard,” and it requires more than a showing 7 that prison officials were negligent. 8 1051, 1060 (9th Cir. 2004). 9 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 10 possible medical need and (b) harm caused by the indifference.” 11 See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 12 1. Delay 13 “Indifference ‘may appear when prison officials deny, 14 delay or intentionally interfere with medical treatment . . . .’” 15 Jett, 439 F.3d at 1096 (quoting Hutchinson v. United States, 838 16 F.2d 390, 392 (9th Cir. 1988)). 17 18 19 20 21 22 23 24 25 26 27 28 5 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. 13 1 of a significant delay between his injury and his first visit 2 with an orthopedist. 3 Although Dr. Agler saw plaintiff on September 2, 2011, 4 (see Agler Decl. Ex. A at 47), he did not order a visit to an 5 outside orthopedist until January 26, 2012, (Agler Decl. ¶ 16). 6 Even after Dr. Agler ordered the appointment on January 26, 7 plaintiff did not actually see Dr. Watkins until on April 16, 8 2012. (See id. ¶ 20.) 9 plaintiff’s referral to Dr. Watkins covered the period from 10 Therefore, the initial delay in September 2, 2011 to April 16, 2012. 11 Plaintiff offers sufficient evidence that Dr. Agler was 12 aware of plaintiff’s need to see an orthopedist from October 7, 13 2011 onward. 14 fractures, (Agler Decl. ¶ 12), and plaintiff has not provided 15 evidence from which a reasonable jury could infer that at that 16 point Dr. Agler had knowledge that plaintiff’s hand required a 17 referral to an orthopedist.6 18 September 30 reported that plaintiff suffered from a degenerative 19 disease. 20 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 21 22 23 24 25 26 27 28 6 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. 14 1 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 13 plaintiff’s medical record). 14 Despite Dr. Agler’s awareness of plaintiff’s pain and 15 the report of degenerative disease in plaintiff’s middle finger, 16 Dr. Agler provided no immediate further treatment for plaintiff’s 17 hand. 18 even followed up with plaintiff to remove the splint from 19 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 22 aware that plaintiff had a degenerative disease in his middle 23 finger when he reviewed the X-ray report on October 7, 2011 and 24 yet failed to respond to the continued swelling and pain 25 plaintiff experienced. 26 (9th Cir. 2011) (holding that plaintiff stated a claim for 27 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 9 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 12 it comes to appropriate treatment and inappropriate treatment.” 13 (Tribble Decl. Ex. A at 27:5-10.) 14 responsibility as the person in charge to ensure that plaintiff’s 15 appointment was timely scheduled. 16 explanation for the further delay. 17 find that Dr. Agler purposely delayed plaintiff’s treatment from 18 October 7, 2011, until April 16, 2012, despite being aware that 19 plaintiff’s condition required the care of an outside 20 consultant.7 21 Therefore, it was Dr. Agler’s Dr. Agler does not offer an A reasonable jury could thus 2. Resulting Harm 22 It is not enough for plaintiff to point to a delay in 23 his referral to Dr. Watkins: plaintiff must show that delay was 24 harmful. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 25 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 4 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam)) 5 (overruled on other grounds by WMX Technologies, Inc. v. Miller, 6 104 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 9 plaintiff harm, elsewhere he stated, “I’m sure [plaintiff] would 10 have benefited by seeing a hand surgeon shortly after he had his 11 accident or his altercation. 12 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 16 possible after the injury.” 17 statements, a reasonable jury could find that plaintiff suffered 18 harm as a result of the initial delay in his referral to a hand 19 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. 21 Agler deliberately and unnecessarily delayed plaintiff’s referral 22 to a hand surgeon despite being aware that plaintiff suffered 23 from a degenerative disease, and that the delay caused harm, the 24 court must deny defendant’s motion for summary judgment with 25 respect to plaintiff’s Eighth Amendment claim against Dr. Agler. 26 See Jett, 439 F.3d at 1096. 27 B. Monell Claim Against CCA 28 17 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 5 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 7 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 8 690-91 (1978)). 9 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 13 ‘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 16 (9th Cir. 1992) (quoting City of St. Louis v. Praprotnik, 485 17 U.S. 112, 127 (1989) (internal quotations omitted)). Plaintiff 18 19 20 21 22 23 24 25 26 27 28 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. 18 Dated: February 2, 2015 19 20 21 22 23 24 25 26 27 28 20

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