Moore v. Corizon Health Services et al

Filing 40

MEMORANDUM DECISION AND ORDER. It is hereby ORDERED, that the motion for summary judgment (docket no. 25 ) is GRANTED. The motion to extend discovery (docket no. 31 ) and the motion to compel discovery (docket no. 30 ) are DENIED.The motion regard ing the summary judgment brief (docket no. 29 ) is DEEMED MOOT as the Court has considered the brief. 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JIMMY C. MOORE,
Plaintiff,

Case No. 1:16-CV-229-BLW

v.

MEMORANDUM DECISION
AND ORDER

CORIZON HEALTH SERVICES,
IDAHO DEPARTMENT OF
CORRECTIONS, MURRAY YOUNG
and JOHN MIGLIORI
Defendants.
INTRODUCTION
The Court has before it a motion for summary judgment filed by defendants, along
with a number of motions filed by plaintiff. The motions are fully briefed and at issue.
For the reasons explained below, the Court will grant the motion for summary judgment
and deny the motions filed by plaintiff.
LITIGATION BACKGROUND
Plaintiff Moore, an inmate incarcerated with the Idaho Department of Corrections,
(IDOC) filed this lawsuit against various health care providers at the prison, claiming that
they were deliberately indifferent to his medical conditions. Moore complains that he
was in pain from knee and shoulder problems, and that the defendants repeatedly denied
his requests for surgery to alleviate the pain. Following an Initial Review Order, Moore’s

Memorandum Decision & Order – page 1

remaining claims are that defendants Drs. Young and Migliori were deliberately
indifferent to his knee and shoulder problems.
Moore first started complaining of pain in both shoulders and his left knee in
September of 2015. His medical records show that he had surgery to repair a torn rotator
cuff on his left shoulder in 1989 and again in 2013, and the same surgery on his right
shoulder in 2013 and 2014.
In the first two months of his incarceration at the IDOC, Moore was treated by a
Physician’s Assistant and two Nurse Practitioners. They found that (1) Moore
demonstrated a full range of motion in his shoulders; (2) x-rays of his shoulders showed
an impingement – that is a rubbing between tendon and bone – and degenerative changes;
(3) inflammation and the consequent pain would be reduced by a corticosteroid shot
(Kenalog); and (4) conservative treatment including physical therapy was indicated rather
than surgery. Moore refused any conservative treatment and demanded surgery.
Moore was first seen by defendant Dr. Migliori on November 9, 2015. Dr.
Migliori is employed by Corizon as a medical doctor at the prison. See Dr. Migliori
Declaration (Dkt. No. 25-3) at p. 2. On that day, Moore complained of shoulder pain;
there was no treatment requested or given for knee pain. Moore believed his rotator cuffs
had been torn during his arrest and he wanted surgery to repair the injuries. Dr. Migliori
responded that surgery was not the best option until more conservative treatment options
– like physical therapy, intra-articular steroid injections, and pain medications – were
tried. Id. at ¶ 11. Dr. Migliori based this opinion on the fact that Moore could perform
the activities of daily life, and that Moore’s prior shoulder surgeries made it less likely
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that surgery would be successful. Id. Moore rejected the option of pursuing conservative
treatments.
Moore returned to Dr. Migliori about three months later, again for shoulder pain.
Moore wanted an MRI of his shoulders and surgery on his rotator cuffs, but Dr. Migliori
again recommended conservative treatment for the same reasons. In addition, Moore
suffered from malignant hyperthermia, a rare disorder that produces a dangerous reaction
to general anesthesia, causing high body temperature, severe muscle spasms, and a fast
heart rate. Id. at ¶ 13. Dr Migliori concluded that “[w]hile Mr. Moore’s susceptibility to
malignant hypothermia did not categorically rule out surgical intervention, it was an
additional reason to first try conservative treatment options.” Id. In both visits, Dr.
Migliori prescribed Tylenol, the only pain medication he would take.
After this visit, Dr. Migliori consulted (by telephone) with defendant Dr. Murray
Young, about Moore’s shoulder problems. Dr. Young was then Corizon’s Regional
Medical Director and the supervisor of Dr. Migliori. Id. at ¶ 12. Based on the
information Dr. Young received from Dr. Migliori, Dr. Young agreed that conservative
treatment should be attempted first. See Young Declaration (Dkt. No. 25-8) at ¶ 6.
Over the next nine months, Moore was seen dozens of times by six different health
care providers for his knees and shoulders. The result was the same: Moore demanded
surgery and rejected the recommendations that conservative treatment – including
physical therapy and corticosteroid injections – must be attempted first. The providers all
noted that Moore gesticulated in anger with no apparent pain, took his shirt off with no

Memorandum Decision & Order – page 3

obvious pain or range-of-motion difficulty, and continued to be able to perform his
activities of daily living. Migliori Declaration, supra at ¶ 16.
In November of 2016, Moore finally agreed to meet with a physical therapist. He
went to four sessions before the therapist determined that Moore was not a good
candidate for physical therapy due to his unwillingness to participate. Id. at ¶ 21.
In December of 2016, Moore was referred to an orthopedist, Dr. Homaechevarria.
(Id. at ¶ 22). Dr. Homaechevarria prescribed corticosteroid injections every four to six
months in his knee, with further follow up if that treatment is unhelpful. Although Moore
had rejected such injections when they were recommended by Corizon health care
providers, he accepted them from Dr. Homaechevarria. Dr. Homaechevarria did an MRI
of Moore’s shoulder and it confirmed a rotator cuff tear. See Medical Records (Dkt. No.
Moore was then referred to another orthopedic surgeon, Dr. Roman Schwartsman,
for evaluation of surgical options on Moore’s shoulder. Dr. Schwartsman stated that they
could proceed with a surgical option, but that the surgery may very well not be successful
due, in part, to arthritic changes in Mr. Moore’s shoulder. Id. at ¶ 23.
LEGAL STANDARD
A prisoner’s claim of inadequate medical care does not constitute cruel and
unusual punishment in violation of the Eighth Amendment unless the mistreatment rises
to the level of “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006). The two-part test for deliberate indifference requires Moore
to show (1) “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
Memorandum Decision & Order – page 4

infliction of pain,” and (2) “the defendant’s response to the need was deliberately
indifferent.” Id. at 1096. A defendant does not act in a deliberately indifferent manner
unless the defendant “knows of and disregards an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
“Deliberate indifference is a high legal standard,” Simmons v. Navajo County
Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010), and is shown where there was “a purposeful
act or failure to respond to a prisoner’s pain or possible medical need” and the
indifference caused harm. Jett, 439 F.3d at 1096. Negligence or medical malpractice do
not rise to the level of deliberate indifference. Broughton v. Cutter Laboratories, 622
F.2d 458, 460 (9th Cir. 1980). “[A] complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Anderson v. County of
Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to
establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900
F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with
diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989).
ANALYSIS
Moore’s basic claim is that the defendants were deliberately indifferent to his
serious medical needs when they recommended a course of conservative treatment
instead of immediate surgery for his knee and shoulders. The first weakness in this claim
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is that the record conclusively shows that Moore never asked Dr. Migliori to treat his
knee and never received any treatment for his knee from Dr. Migliori. Dr. Young
likewise was never asked to treat Moore’s knee and never did so. While Dr. Young was
the supervisor of medical care at the prison, there is no evidence that he was ever made
aware of Moore’s knee problems or had any involvement whatsoever in the treatment of
Moore’s knee by others. Given this record, no reasonable juror could find that Dr.
Migliori and Dr. Young were deliberately indifferent to Moore’s knee problems.
Regarding Moore’s shoulder problems, there is no evidence in this record that the
decision to pursue conservative treatment constituted deliberate indifference. Moore had
previously undergone two surgeries on each shoulder and suffered from malignant
hyperthermia, circumstances that made surgery somewhat more risky and less likely to be
successful. All the medical records – from several different medical providers over a
ninth month period – demonstrate that Moore could perform daily activities and was able
to do things like remove his shirt with no obvious pain or range-of-motion difficulty.
Moore consistently rejected conservative treatments and when he finally did participate
in physical therapy, the therapist ended the treatment after only four sessions because
Moore was not cooperating.
There is no medical opinion in this case that surgery should have been done
immediately; even if there was such an opinion contrary to that of Drs. Young and
Migliori, a disagreement over the efficacy of pursuing conservative treatment before
surgery does not constitute deliberate indifference. See Rodriguez v. Cate, 2011 WL
13196253 (9th Cir. 2012) (unpublished) (holding that disagreement between medical
Memorandum Decision & Order – page 6

providers over providing conservative treatment before surgery did not constitute
deliberate indifference); Aleo v. Smith, 2016 WL 8731374, at *13 (E.D. Cal. Jan. 15,
2016) (holding that disagreement about whether to pursue conservative care rather than
surgical intervention, particularly where there were legitimate doubts about the likelihood
that surgical intervention would be successful, did not constitute deliberate indifference).
Here, there were legitimate doubts about the likelihood that surgery would be successful.
Indeed, the record shows that Moore “received thorough and careful medical treatment
from his physicians, unlikely to constitute medical malpractice, negligence, or gross
negligence, let alone the knowing disregard of an excessive risk to inmate health or
safety.” White v Lee, 2013 WL 782357 (9th Cir. March 4, 2013). Because there is no
genuine issue as to any material fact, and defendants are entitled to judgment as a matter
of law, the Court will grant defendants’ motion for summary judgment.
Other Motions
Moore has filed a motion to extend discovery and a motion to compel discovery.
Both motions were filed more than three months after the deadline for discovery had
passed, and Moore fails to provide an explanation for the late filing. These two motions
will be denied. The Court has considered Moore’s response brief so his motion in that
regard is moot.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for summary
judgment (docket no. 25) is GRANTED.
Memorandum Decision & Order – page 7

IT IS FURTHER ORDERED, that the motion to extend discovery (docket no. 31)
and the motion to compel discovery (docket no. 30) are DENIED.
IT IS FURTHER ORDERED, that the motion regarding the summary judgment
brief (docket no. 29) is DEEMED MOOT as the Court has considered the brief.

DATED: September 27, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Memorandum Decision & Order – page 8