Bloss v. Twin Falls County et al

Filing 47

MEMORANDUM DECISION AND ORDER. Defendants' Motion for Summary Judgment (Dkt. 37 ) is GRANTED. Defendants' Motion to Seal (Dkt. 38 ) is GRANTED. The documents lodged under Dkt. 39 shall remain UNDER SEAL until further order of this Court. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JEFFREY ANDREW BLOSS,
Case No. 1:15-cv-00467-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
TWIN FALLS COUNTY, TOM
CARTER, AND DOES I-X,
Defendants.

INTRODUCTION
Plaintiff Jeffrey Andrew Bloss, an Idaho state prisoner, filed this civil rights action
pursuant to 42 U.S.C. § 1983 and state tort law, alleging deliberate indifference to his
serious medical needs. Plaintiff is proceeding pro se. Currently pending before the Court
is Defendants’ Motion for Summary Judgment (Dkt. 37) and Motion to Seal (Dkt. 38).
For the reasons explained below, the Court will grant both Motions in full.
BACKGROUND
1.

Factual Background
A.

Plaintiff’s Injury and Medical Treatment

While in the custody of Twin Falls County Adult Detention Facility (“County
Jail”) on October 3, 2013, Plaintiff injured his left knee in an altercation with another
detainee. Kane Aff., Ex. B at 39–43, Dkt. 39-4. On the same day, immediately following
the altercation, Plaintiff was placed in a wheelchair and taken to St. Luke’s Quick Care.

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Id. At St. Luke’s, the clinic personnel took x-rays of his left knee and examined him. The
clinic noted swelling, but no “acute injuries.” Id. The clinic prescribed ibuprofen and an
icing regimen. The clinic also advised if there was no improvement in two to three
weeks to schedule a follow up visit for a possible MRI. Kane Aff., Ex. A at 1522, Dkt. 394. Following the clinic visit, the Plaintiff returned to the County Jail and healthcare
personnel at the jail followed the medical directions provided. See Ippolito Aff.¶ 3–4,
Dkt. 39-2; Probasco Aff. ¶ 5, Dkt. 37-3.
On October 7, 2013, Plaintiff complained of a “fluttering feeling” in his ankle and
was transported to St. Luke’s Magic Valley Regional Medical Center Emergency
Department that same day. Hughes Aff., Ex. A at 290–92, Dkts. 37-5, 39. Plaintiff was
diagnosed with a hamstring strain. Id. He was given a hamstring stretch pamphlet along
with direction to continue taking ibuprofen. Id. In addition, the clinic prescribed him a
muscle relaxer and to take it every six hours. Id.
On October 10, Plaintiff filed three separate grievances through services available
at the County Jail,1 all alleging intense pain and requesting pain medication, an MRI, and
surgery. Hughes Aff., Ex. A at 285, 288–89, Dkt. 39. The following day, Corle, a jail
nurse, examined Plaintiff. Under the supervision of Dr. Ippolito, she informed Plaintiff
that a nerve conduction study may be necessary, but would not be effective until three to

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“Inmate grievances regarding health care issues will be investigated by an uninvolved member of the
medical staff. . . The inmate should be provided with a written response in accordance with the schedule
set forth in the Inmate Grievances Policy. Responses to inmate grievances should be based on the
community standard of health care.” Carter Aff., Ex. A. at 999.

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four weeks after the injury occurred. In addition, Corle advised Plaintiff not to limit his
activity. Hughes Aff., Ex. A at 284, 286-87, Dkt. 39.
The next day, October 12, Plaintiff submitted another grievance demanding an
MRI and a doctor’s written recommendation advising him to walk on his injury. Hughes
Aff., Ex. A at 283, Dkt. 39. On October 15, Plaintiff was seen by jail nurse, Lou Probasco.
At that appointment, Probasco told Plaintiff that an orthopedic appointment would be
scheduled. Hughes Aff., Ex. A at 282, Dkt. 39
On October 17, Plaintiff filed two more grievances stating that his leg was not
working, and again, requested pain medication, an MRI, and surgery. Hughes Aff., Ex. A
at 278-79, Dkt. 39. Plaintiff saw Probasco the next day, at which time Probasco told
Plaintiff that he was to continue ibuprofen and that he would arrange a nerve conduction
study and neurology consult. Id. at 277.
Ippolito evaluated Plaintiff on October 25, prescribed him Motrin, and planned to
re-evaluate him the following week. In addition, Ippolito planned to schedule a nerve
conduction survey if there was no improvement. Hughes Aff., Ex. A at 263–64. At
Plaintiff’s October 31 appointment, Ippolito scheduled the nerve conduction survey for
November 19. Id. at 262. Ippolito re-evaluated Plaintiff on November 1 and planned to
check in with him following his nerve conduction survey. Id. at 252.
Plaintiff filed two more grievances on November 8 and 10 complaining about leg
and foot pain. He said that he needed to see a specialist and needed quicker care. Hughes

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Aff., Ex. A at 256-57. In response, Probasco evaluated Plaintiff on November 12 and
prescribed ibuprofen until Plaintiff’s November 19 appointment. Id. at 254.
Following the Plaintiff’s nerve conduction survey, Plaintiff saw Ippolito who, after
discussing the results with Dr. Steffens, discussed the possible avulsion of the peroneal
nerve. Ippolito scheduled an MRI for December 3 and a neurology consult on December
10, 2014. Hughes Aff., Ex. A at 205, 237, 248.
On November 26, 2013, the day before Plaintiff was transferred to the Idaho State
Correctional Institution, Probasco provided a Medical Request for Payment Authorization
form requesting medical visits for Plaintiff’s MRI and follow up with a neurologist. In
addition, it requested Plaintiff be provided with ibuprofen. Hughes Aff., Ex. A at 227. On
December 6, Ippolito noted that Probasco had informed the Correctional Institution of
Plaintiff’s scheduled MRI and neurologist consult through the Medical Request for
Payment Authorization form. However, Ippolito indicates that the Correctional Institution
“elected to take him to the Correctional Institute and follow up in their setting and not
have it done [at the County Jail].” Id. at 208. It is unclear whether the Correctional
Institution kept or rescheduled his appointments.
On November 29, 2013, Dr. Friedman performed an independent medical
examination of Plaintiff. After reviewing and discussing Plaintiff’s medical records,
history, and symptoms, Friedman concluded that Twin Falls County had provided him
with appropriate medical care and treatment during his detention. Friedman Aff. ¶ 4, Dkt.
39-1. Friedman’s report indicates that Plaintiff suffers from permanent nerve damage that

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limits the movement in his lower leg and left foot. Friedman Aff. at 9, Dkt. 39-1. As a
result of this nerve damage, Plaintiff must now use an Ankle-Foot Orthosis to improve
gait function and stability. Id. Friedman concluded that Plaintiff will “always have a foot
drop, with numbness” as a result of his October 3 knee injury. Id. at 10. However,
Friedman’s report also indicated that he believed that the nerve damage may have
resulted, in part, from a previous car accident unrelated to the October 3 incident. Id. at
9.
B.

Twin Falls County Jail Medical Structure

The County hires independent Idaho licensed medical doctors and nurses to
provide county inmates healthcare services. These independent contractors are required
to comply with Idaho law, the Rules of Idaho State Board of Medicine, and the Board of
Nursing, which set up licensing criteria and handle any disciplinary matters. Hughes Aff.
¶ 5. Twin Falls does not have its own training program for medical personnel. Probasco
Aff. ¶ 3.
In addition, the jail deputies are not tasked with providing any healthcare to
inmates. A jail deputy receives medical requests and grievances, which are passed on to
medical personnel. See Hughes Aff. ¶ 6; Carter Aff., Ex. A. at 999.
The Twin Falls County Sheriff’s Office Custodial Manual describes the medical
procedures for the County Jail. Licensed nurses handle all of the medically proscribed
activity mentioned in the manual. Carter Aff., Ex. A. The manual details how staff

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should handle grievances and communication between staff, but not any specific medical
treatment. Carter Aff., Ex. A
LEGAL STANDARD
1.

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

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). 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

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unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
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
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).

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ANALYSIS
1.

§ 1983 Claims
A.

Claims Against Sheriff Carter

Plaintiff alleges that Sheriff Carter was deliberately indifferent to Plaintiff’s
serious medical needs and failed to properly train or supervise the staff responsible for his
healthcare in violation of his constitutional rights. Defendant Carter alleges that he was
not deliberately indifferent towards Plaintiff’s medical needs, and, in any event, was
entitled to qualified immunity. Because the Court finds that no constitutional violation
occurred, the Court will grant defendants’ Motion for Summary Judgment for claims
against Carter and need not proceed to assess whether Carter was entitled to qualified
immunity.
(1)

Deliberate Indifference

The Eighth Amendment of the United States Constitution protects prisoners
against cruel and unusual punishment while incarcerated. To state a claim under the
Eighth Amendment, a plaintiff must show that he is “incarcerated under conditions
posing a substantial risk of serious harm,” or that he was deprived of the “minimal
civilized measure of life’s necessities as a result of the defendant’s actions.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). “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.”

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Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds
by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).
The Ninth Circuit employs a two-part test for deliberate indifference. “First, the
plaintiff must show a serious medical need by demonstrating that failure to treat a
prisoner’s condition could result in further significant injury or the unnecessary and
wanton infliction of pain. Second, the plaintiff must show the defendant[s’] response to
the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.
2012).
As for the first prong, the Ninth Circuit has stated three different ways in which a
medical need is serious: “[1] [t]he existence of an injury that a reasonable doctor or
patient would find important and worthy of comment or treatment; [2] the presence of a
medical condition that significantly affects an individual’s daily activities; [3] or the
existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60
(9th Cir. 1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104
F.3d 113 (9th Cir. 1997).
As for the second prong, a prison official is deliberately indifferent only if the
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). In a medical context,
deliberate indifference is shown by “(a) a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Notwithstanding the seriousness of his medical condition, Plaintiff has failed to
meet his burden of coming forward with sufficient facts to show that Defendant Carter
violated his Eighth Amendment rights. Plaintiff’s filings lack any allegations as to
Carter’s role in the underlying events. Conspicuously missing from the Complaint or
response to the Motion for Summary Judgment are any facts suggesting that Carter knew
about Plaintiff’s condition or was otherwise involved in the subsequent treatment
decisions. Moreover, there has been no showing as to his deliberate indifference.
Defendants, in contrast, assert that Sheriff Carter did not engage with Plaintiff on a dayto-day basis and did not handle any of the grievances Plaintiff made. Carter Aff. ¶ 4, Dkt.
37-4.
The fact that Plaintiff received substantial and prompt medical care also undercuts
his claim of deliberate indifference. The County Jail staff promptly transported Plaintiff
to St. Luke’s on the day of his injury, where he received x-rays and ibuprofen. Jail
healthcare personnel saw him at least eleven times from the date of his injury through the
remainder of his detention, which was a little less than two months. The medical staff
provided him with ibuprofen whenever he would complain of pain. At least one medical
professional concluded, after reviewing Plaintiff’s medical records and conducting an
independent medical examination, that he had received adequate health care. Plaintiff
also provides no evidence to suggest that any delays in his treatment were deliberate or
unreasonable.

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On this sparse record, no reasonable jury could find that Carter was deliberately
indifferent to Plaintiff’s medical needs. Because no constitutional violation occurred, the
Court will grant defendants’ Motion for Summary Judgment on Carter’s deliberate
indifference claim and need not proceed to assess whether Carter was entitled to qualified
immunity.
(2)

Failure to Train or Supervise

To establish a § 1983 claim for failure to supervise or train, a plaintiff must show
that: (1) he was deprived of a constitutional right; (2) the supervisor either failed to
supervise or train the subordinate official; (3) the training deficiency is “closely related”
to the violation of plaintiff’s constitutional right; and (4) the failure to train “amounts to
deliberate indifference to the rights of persons” with whom those officials are likely to
interact. See City of Canton v. Harris, 489 U.S. 378, 388 (1989); see also Flores v. Cty.
of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014).
As stated above, Plaintiff’s bare allegations are insufficient to establish a violation
of his constitutional rights. Without an underlying constitutional violation, Plaintiff
cannot prevail on his claim that Carter inadequately trained or supervised jail staff. See
Long v. City & Cty. of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007) (“If there was no
constitutional violation of Long’s rights, there is ‘no basis for finding the officers
inadequately trained.’”) (quoting Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994).

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Accordingly, the Court must grant defendants’ Motion for Summary Judgment on
Carter’s failure-to-train or supervise claim and need not proceed to assess whether Carter
was entitled to qualified immunity.
B.

Claims against Twin Falls County

Plaintiff also alleges a Monell claim against Defendant, Twin Falls County, stating
that the County had “an official policy or custom of deliberate indifferent [sic] to its
detainees’ serious health and medical needs. . . and failure to properly train or supervise
defendants deputy sheriffs engaging in such constitutional violations.”
Municipalities can only be held liable under 42 U.S.C. § 1983 for “constitutional
deprivations visited pursuant to governmental custom.” Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690 (1978). To establish his Monell claim, Plaintiff must
prove four elements: (1) that he was deprived of a constitutional right, (2) that the County
had a policy or custom, (3) that the policy amounted to deliberate indifference of a
constitutional violation, and (4) the policy was the “moving force behind the
constitutional violation.” Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110–11 (9th Cir.
2001). A municipality may also be held liable on a “failure to train” theory under the
same standard applicable to supervisors in their individual capacity. See City of Canton,
489 U.S. at 388; Flores, 758 F.3d at 1159.
For the reasons stated above, Plaintiff has failed to establish that he was deprived
of any constitutional right. Accordingly, Plaintiff cannot prevail on his claims against
Twin Falls County, which are “contingent on a violation of constitutional rights.” Scott v.

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Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (“[T]he municipal defendants cannot be held
liable because no constitutional violation occurred.”) The Court will grant Defendants’
Motion for Summary Judgment as to all § 1983 claims.
2.

Idaho Tort Claims Act
Plaintiff alleges Idaho state tort claims similar to those raised in his § 1983 claims.

He alleges that Carter and Twin Falls County were deliberately indifferent to his medical
needs and that both defendants failed to train and/or supervise their employees.
The Idaho Tort Claims Act (ITCA) “establishes that governmental entities are
subject to liability for their own negligent or wrongful acts, and those of their employees
who were acting within the course and scope of their employment.” Hoffer v. City of
Boise, 257 P.3d 1226, 1228 (Idaho 2011). However, the ITCA also expressly exempts
certain causes of action. Id. Idaho Code § 6-904B states, “[a] governmental entity and its
employees while acting within the course and scope of their employment and without
malice or criminal intent and without gross negligence or reckless, willful and wanton
conduct as defined in section 6-904C, Idaho Code, shall not be liable for any claim
which: [5] Arises out of any act or omission providing or failing to provide medical care
to a prisoner or person in the custody of any city, county or state jail, detention center or
correctional facility.”
Here, Plaintiff has not established any facts which suggest that the Defendants’
conduct rose to the level of “gross negligence,” or “reckless, willful and wanton” as those
terms are defined under Idaho law. “‘Reckless, willful and wanton conduct’ is present

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only when a person intentionally and knowingly does or fails to do an act creating
unreasonable risk of harm to another, and which involves a high degree of probability
that such harm will result.” Idaho Code § 6-904C(2). The standard requires the court to
find that “[t]he specific harm . . . [is] manifest or ostensible, and highly likely to occur.”
Hunter v. Dep’t of Corrections, 57 P.3d 755, 761 (Idaho 2002) (first and second
alterations in original). Plaintiff has not alleged any specific harm that was highly likely
to occur because of Defendants’ conduct. Indeed, it is undisputed that the jail’s medical
staff saw to Plaintiff’s medical needs at least eleven times from the date of his injury
through the remainder of his detention, which was a little less than two months.
Likewise, Defendants’ conduct does not rise to the level of “gross negligence”
under Idaho Code. Gross negligence requires a “duty to do or not do such act and that
failing that duty shows deliberate indifference to the harmful consequences to others.”
Idaho Code § 6-904C(1). As discussed previously, there are no facts to indicate that
Defendants’ conduct rose to the level of deliberate indifference. Therefore, the Court
grants Defendants’ Motion for Summary Judgment on the state law claims.
3.

Unnamed Defendants
Plaintiff also sues unnamed defendants, Does I–X. For the same reasons above,

there are no facts to indicate any constitutional violations by these defendants. Therefore,
the Court grants summary judgment to the unnamed individuals.

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4.

Motion to Seal
Defendants also filed a Motion to Seal (Dkt. 38) certain exhibits accompanying

their Motion for Summary Judgment. These include Exhibit A to the Affidavit of
Douglas Hughes; the Affidavit of Michael Kane, with exhibits; the Affidavit of Robert
Friedman (medical doctor), with exhibits; and the Affidavit of Joseph Ippolito (medical
doctor), with exhibit. Defendants move to seal these affidavits and exhibits because they
contain sensitive information related to Plaintiff’s medical history, treatment, and
diagnosis. Plaintiff does not oppose the motion.
Due to the general common law “right to inspect and copy public records and
documents, including judicial records and documents,” there is a “strong presumption” in
favor of access to judicial proceedings and records. Kamakana v. City & County of
Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 2006). Accordingly, a party seeking to seal
documents supporting a dispositive motion has the burden of demonstrating “compelling
reasons” that outweigh the “public interest in understanding the public process.” Id.
Courts have routinely recognized the sensitive and confidential nature of medical
records as a “compelling reason” for their sealing. See, e.g., A.C. v. City of Santa Clara,
No. 13-CV-03276-HSG, 2015 WL 4076364, at *2 (N.D. Cal. July 2, 2015); Williams v.
Nevada Dep’t of Corr., No. 2:13-CV-941-JAD-VCF, 2014 WL 3734287, at *1 (D. Nev.
July 29, 2014); San Ramon Regional Med. Ctr., Inc. v. Principal Life Ins. Co., No. C 1002258 SBA, 2011 WL 89931, at *1, n.1 (N.D. Cal. Jan. 10, 2011); Wilkins v. Ahern, No.
C 08-1084 MMC PR, 2010 WL 3755654, at *4 (N.D. Cal. Sept. 24, 2010); Abbey v.

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Hawaii Employers Mut. Ins. Co., No. CIV. 09-000545 SOM, 2010 WL 4715793, at *1–2
(D. Haw. Nov. 15, 2010); Lombardi v. TriWest Healthcare Alliance Corp., No. CV-0802381-PHX-FJM, 2009 WL 1212170, at *1 (D. Ariz. May 4, 2009).
Moreover, no less restrictive alternative to sealing is available here, as this medical
information is pertinent to the pending motion and cannot be redacted. Thus, although the
medical records are directly related to the merits of the case, the Court finds that the
sensitive nature of these documents outweigh the presumption in favor of public access to
court records. Accordingly, the Court will grant Defendants’ Motion to seal.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 37) is GRANTED.

2.

Defendants’ Motion to Seal (Dkt. 38) is GRANTED. The documents
lodged under Dkt. 39 shall remain UNDER SEAL until further order of
this Court.

3.

The Court will enter a separate judgment in accordance with Fed. R. Civ. P.
58.
DATED: August 24, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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