Briones v. Corizon Medical Services et al

Filing 30

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED: 1. Defendants Motion for Summary Judgment of Christian Gelok, NP-C and William Poulson, NP-C (Dkt. 20 ) is GRANTED. 2. Plaintiffs Motion for Summary Judgment (Dkt. 22 ) is DENIED. 3. Plaintiffs Motion for Appointment of Counsel (Dkt. 26 ) is DENIED. 4. The Court will enter a separate judgment in accordance with Fed. R. Civ. P. 58. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHAWN BRIONES,
Case No. 1:14-cv-00366-BLW
Plaintiff,
v.
CORIZON HEALTH SERVICES, et. al.,

MEMORANDUM DECISION AND
ORDER

Defendants.

INTRODUCTION
The Court has before it Defendants’ Motion for Summary Judgment of Christian
Gelok, NP-C and William Poulson, NP-C (Dkt. 20), Plaintiff’s Motion for Summary
Judgment (Dkt. 20), and Plaintiff’s Motion for Appointment of Counsel (Dkt. 26).
LEGAL STANDARD
1.

Cross Motions for Summary Judgment
Briones complained of elbow pain while incarcerated at the Idaho State

Correctional Institution. He claims that defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment, in the form of deliberately indifferent
medical care. Following initial review, the Court allowed Briones’s claims to proceed
against Gelok and Poulson. Each party has now moved for summary judgment.

MEMORANDUM DECISION AND ORDER - 1

2.

Summary Judgment Standard
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “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). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing

MEMORANDUM DECISION AND ORDER - 2

evidence, the question on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
When cross-motions for summary judgment are filed, the Court must
independently search the record for factual disputes. Fair Housing Council of Riverside
County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of crossmotions for summary judgment – where both parties essentially assert that there are no
material factual disputes – does not vitiate the court’s responsibility to determine whether
disputes as to material fact are present. Id.
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party
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opposing summary judgment must direct [the Court’s] attention to specific triable facts.”
Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
3.

Standard of Law for Eighth Amendment Claims
The Eighth Amendment to the United States Constitution protects prisoners

against cruel and unusual punishment. To state a claim under the Eighth Amendment, a
prisoner must show that he is “incarcerated under conditions posing a substantial risk of
serious harm,” or that he has been deprived of “the minimal civilized measure of life’s
necessities” as a result of Defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks 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). The Eighth Amendment includes the right to adequate medical care in prison,
and prison officials or prison medical providers can be held liable if their “acts or
omissions [were] sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976).
Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained that “[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, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The Ninth
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Circuit has defined a “serious medical need” as a “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 or prison medical provider 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) (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, 114 S.Ct. 1970). “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). However,
“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,
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114 S.Ct. 1970; 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).
In the medical context, a conclusion that a defendant acted with deliberate
indifference requires that the plaintiff show both “a purposeful act or failure to respond to
a prisoner's pain or possible medical need and . . . harm caused by the indifference.” Jett
v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). Deliberate indifference can be
“manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–05, 97 S.Ct. 285
(footnotes omitted). 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 v. Chung, 391 F.3d 1051, 1058 (9th
Cir.2004) (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir.1996)). Mere indifference, medical malpractice, or negligence will not support a
cause of action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir.1980) (per curiam). A delay in treatment does not constitute a violation of
the Eighth Amendment unless the delay causes further harm. McGuckin, 974 F.2d at
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1060. If medical personnel have been “consistently responsive to [the inmate’s] medical
needs,” and there has been no showing that the medical personnel had “subjective
knowledge and conscious disregard of a substantial risk of serious injury,” summary
judgment is appropriate. Toguchi, 391 F.3d at 1061.
ANALYSIS
The Court has cross-motions for summary judgment before it. However, Briones’s
motions is nothing more than a 3-page bare bones assertion that his rights have been
violated. He makes nothing more than a blanket assertion that his medical needs have not
been met. This is not enough to support summary judgment. Accordingly, the Court will
deny Briones’s motion and address defendants’ motion in more detail.
Briones first notified defendants about his elbow problems on December 10, 2013.
He was seen that day by Will Wingert, R.N. Poulson Aff., ¶ 3. Briones told Wingert that
he had elbow pain since 2012. Id. Wingert conducted a physical examination, and
prescribed cold and warm compresses, Ibuprofen from the commissary, and referred
Briones to a nurse practitioner. Id.
NP Poulson saw Briones on December 30, 2014. Id. at ¶ 4. Briones discussed his
pain with Paulson, noting that it had begun in August 2012. Poulson performed a physical
examination, and noted that Briones’s right elbow was tender to palpation at the medial
epicondyle and that the pain increased with resisted forearm pronation. He noted no
swelling or crepitation. Poulson noted that Briones’s left elbow was tender at the
olecranon bursa, and that it appeared to be mildly swollen. Poulson prescribed a course of
oral prednisone and advised Briones to rest and limit his activities. Poulson conditionally
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prescribed a Kenalog injection for the left elbow. No fluid was aspirated from Briones’s
left elbow because there was no significant swelling or signs of infection. Id.
On January 6, 2014, x-rays were performed on Briones’s left elbow. Id., ¶ 5. The
radiologist’s impression was “negative left elbow.” Id. On January 14, 2014, Briones was
seen by Nurse Practitioner Scott Schaffer, who administered the Kenalog injection in the
left elbow. Id. On February 8, 2014, Briones reported that his left elbow was still
painful following the Kenalog injection. Id., ¶ 7. Briones asked for additional care. On
February 21, 2014, Briones was given another Kenalog injection by NP Schaffer. Id., ¶ 8.
Briones next complained about pain on July 7, 2014, when he asked for another
shot. Id., ¶ 9. On July 21, 2014, Briones was seen by Nurse Practitioner Christian Gelok.
After examining Briones, NP Gelok diagnosed him with medial epicondylitis. Id. NP
Gelok’s treatment plan for Briones was to decrease lifting weights. He also offered a
brace for the elbow, but Briones declined use at that time. NP declined another steroid
injection because he had already had two injections that year. Gelok Aff. ¶ 3. Excessive
steroid injections within a relatively short period of time present a risk for tendon
damage, including rupture. Poulson Aff. ¶ 9; Gelok Aff. ¶ 3. This risk is increased for a
patient who, after receiving the injection, engages in vigorous activity affecting the joint.
Id. The results of NP Gelok’s examination suggested that Briones’s pain was associated
with vigorous activities, such as weight lifting, and that what he really needed to do was
rest his elbow. Id.
Briones was next seen by Dr. Murray Young on September 10, 2014 for his
complaint of left elbow pain. Poulson Aff. ¶ 11. After conducting various tests that were
MEMORANDUM DECISION AND ORDER - 8

essentially normal, Dr. Young’s assessment was that Briones had musculoskeletal left
elbow pain - tendonitis. Dr. Young prescribed the NSAID Mobic (Meloxicam) for 90
days because Briones indicated that ibuprofen bothered his stomach. Dr. Young also
prescribed an elbow sleeve and instructed Briones to reduce his weight lifting. Dr. Young
noted that surgery was not indicated and that his condition was one that comes and goes
over time.
Briones filed his complaint on September 2, 2014. The record before the Court,
including medical records, does not show that Briones submitted any additional requests
for care after his visit with Dr. Young on September 10, 2014. Poulson Aff. ¶ 12.
Uncontested evidence before the Court indicates that the primary treatment for soft tissue
complaints such as those expressed by Briones is to rest the elbow so that it can heal. Id.,
¶ 17; Gelok Aff. ¶ 6. It takes time to heal, and healing may be delayed when the elbow is
aggravated. Gelok Aff., ¶ 6. Given the facts above, the only reasonable conclusion is that
defendants were not deliberately indifferent to Briones’s medical needs. That Briones
disagrees with his medical care, which is essentially what he states in his brief, is not
sufficient medical evidence that he should have been treated differently. Thus, defendants
have met their initial burden of demonstrating the absence of a genuine dispute as to
material fact that they were not deliberately indifferent to Briones’s medical needs.
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). They have
introduced evidence, through affidavits, which has not been rebutted by Briones.
Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000). Accordingly,
the Court will grant summary judgment for defendants.
MEMORANDUM DECISION AND ORDER - 9

ORDER
IT IS HEREBY ORDERED:
1. Defendants’ Motion for Summary Judgment of Christian Gelok, NP-C and
William Poulson, NP-C (Dkt. 20) is GRANTED.
2. Plaintiff’s Motion for Summary Judgment (Dkt. 20) is DENIED.
3. Plaintiff’s Motion for Appointment of Counsel (Dkt. 26) is DENIED.
4. The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
58.

DATED: September 21, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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