Minton et al v. The State of Idaho et al

Filing 46

MEMORANDUM DECISION AND ORDER Rona Siegert's Motion for Summary Judgment (Dkt. 39 ) is GRANTED. The Corizon Defendants' Motion for Summary Judgment (Dkt. 40 ) is GRANTED. Mintun's Renewed Motion for Appointment of Counsel (Dkt. 43 ) is DENIED. Signed by Judge David C. Nye. (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
DENNIS MINTUN,
Case No. 1:16-cv-00367-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CORIZON MEDICAL SERVICES; P.A.
KAREN BARRETT; N.P. JANE SEYS;
and RONA SIEGERT,1
Defendants.

I. INTRODUCTION
Pending before the Court is Defendant Rona Siegert’s Motion for Summary
Judgment (Dkt. 39) and Defendants Corizon Medical Services, P.A. Karen Barrett, and
N.P. Jane Seys (collectively “Corizon Defendants”) Motion for Summary Judgment (Dkt.
40). Also pending is Plaintiff Dennis Mintun’s Renewed Motion for Appointment of
Counsel. Dkt. 43.
The Motions are fully briefed and ripe for the Court’s review. Having fully
reviewed the record herein, the Court finds the parties have adequately presented the facts

1

Originally, Mintun named 27 defendants in this lawsuit. As part of an Initial Review Order,
Judge Winmill dismissed the majority of those defendants. See Dkt. 9. Additionally, this Court
substituted Defendant Jane Seys for the misidentified “Janet Seyes” in Mintun’s original
Complaint. See Dkt. 28. For clarity, the case caption only includes those defendants still
remaining in the case.
MEMORANDUM DECISION AND ORDER - 1

and legal arguments in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court finds that the decisional process would not be
significantly aided by oral argument, the Court decides the Motions without oral
argument. For the reasons set forth below, the Court GRANTS both Summary Judgment
Motions and DENIES Mintun’s Motion for Appointment of Counsel.
II. BACKGROUND
A. Factual Background
Plaintiff Dennis Mintun is an inmate incarcerated by the Idaho Department of
Corrections (“IDOC”) at the Idaho State Correctional Institution (“ISCI”) in Kuna, Idaho.
Corizon Medical Services is a private corporation under contract to provide
medical and mental health care to inmates at IDOC facilities.
Karen Barrett and Jane Seys are mental health care providers employed by
Corizon. Barrett is a Physician Assistant and Seys is a Registered Nurse. Dkt 40-2.
Rona Siegert is IDOC’s Health Services Director at ISCI and oversees Corizon’s
provision of medical services to prisoners at IDOC facilities. Dkt. 39-5.
On February 28, 2011, Mintun visited P.A. Barrett and complained about
“becoming forgetful” and “being uncomfortable around people he does not know,” while
also reporting that he was “happy and fine” around people he does know. Dkt 40-2.
According to Mintun, these feelings had only surfaced within the previous two weeks. Id.
Barrett undertook an evaluation of Mintun and noted that he had previously reported
stress, anxiety, fear of other inmates, difficulties sleeping, and concerns that he might
have PTSD. Id. Mintun was participating in counseling with IDOC clinicians and IDOC
MEMORANDUM DECISION AND ORDER - 2

employees who are Licensed Professional Counselors that assist inmates in developing
coping strategies for dealing with the stresses of prison. Id. Mintun had also been
prescribed anti-depressants, but for some reason had stopped taking them. Id.
Barrett also noted that Mintun had previously made complaints regarding his unit
placement at ISCI, and that he reported that his mental health symptoms had improved
significantly after being moved to a unit that he preferred. Id. Upon review of his file,
Barrett directed Mintun to see a medical health care provider to rule out a physiological
basis for his memory loss, to continue seeing clinicians for counselling, and to return in
three months. Id. Mintun continued to receive counseling as directed. Id.
On March 9, 2011, in one of his counseling sessions, Mintun expressed,
apparently for the first time, a concern that he thought he might be “mildly autistic.” Id.
In an attempt to alleviate Mintun’s concerns, the clinician gave Mintun a pamphlet on
Asperger’s Syndrome. Id. Mintun later told a counselor that he was “born with
Asperger’s Syndrome,” and claimed that his mother had confirmed as much in a
telephone conversation. Id.
Mintun next saw Barrett on November 19, 2011, because he had been “reading up
on” Asperger’s Syndrome and wanted Barrett to diagnose him. Id. After evaluating
Mintun and his symptoms, Barrett concluded that he did not meet the diagnostic criteria
for Asperger’s Syndrome and that his symptoms were entirely consistent with the stress
and anxiety associated with the correctional context. Id. In particular, Barrett noted that
Plaintiff was pleasant, had a normal affect, made good eye contact, and did not report

MEMORANDUM DECISION AND ORDER - 3

other symptoms associated with Asperger’s Syndrome. Id. She also noted that clinicians
regularly reported Plaintiff as being pleasant and having a normal affect. Id.
Finally, Barrett determined that there was no need for an independent evaluation
of Mintun and that the treatment he was receiving, including counselling, was appropriate
in light of Plaintiff’s refusal to continue taking medications. Id.
In subsequent visits with clinicians, Mintun stated that he was “doing well” and
“ha[d] no concerns,” but continued to state that he wanted to be tested for Asperger’s
Syndrome. Id. He also continued to complain about his placement in the correctional
institution. Id.
On February 13, 2012, Mintun filed the first of three grievances requesting that
Siegert review Barrett’s determination that an outside medical evaluation was
unnecessary. Upon review, Siegert deferred to Barrett’s professional opinion and
recommended that Mintun continue working with clinicians.
On August 27, 2012, Mintun filed a second grievance again requesting that an
outside psychologist examine him to verify whether he had Asperger’s Syndrome. Siegert
determined that she had already addressed this issue in Mintun’s previous appeal and
noted that absent new information her position would not change.
Mintun had his first visit with N.P. Seys on August 7, 2014, after complaining that
he was “stressed, tense, and irritable.” Id. Mintun expressed to Seys his idea that he might
have Asperger’s Syndrome. Id. Like Barrett, upon review, Seys determined that Plaintiff
did not meet the diagnostic criteria for Asperger’s Syndrome, and that an independent

MEMORANDUM DECISION AND ORDER - 4

evaluation was unnecessary. Id. Seys did not observe any signs or symptoms of
Asperger’s Syndrome or Autism, and Mintun did not report any such symptoms. Id.
Seys determined that Mintun’s symptoms were consistent with the stresses of the
correctional context, and offered to prescribe medications. Id. Mintun refused. Id. In light
of that refusal, Seys urged him to continue seeing clinicians for counseling, which
Mintun did. Id.
On September 2, 2014, Mintun filed his third grievance with Siegert again
requesting that “proper testing” be performed to verify his Asperger’s Syndrome. Siegert
again reviewed Mintun’s file, and again deferred to medical professionals who
determined that Mintun did not meet the criteria for Asperger’s Syndrome or Autism.
Siegert encouraged Mintun to continue working with professionals to reduce the stresses
of prison life, and dismissed the appeal.
Mintun’s second and last visit with Seys occurred on April 21, 2016, when he
asked her to address an error he had noticed on his medical chart. Id. A note on the chart
incorrectly stated that Mintun had a history of poly-substance abuse. Id. After resolving
that issue, Mintun asked some follow-up questions about high-functioning Autism, which
Seys answered. Id. During the visit Seys did not observe any signs or symptoms of
Asperger’s Syndrome or Autism. Id. Seys maintained that Mintun did not meet the
diagnostic criteria for Asperger’s Syndrome or Autism Spectrum Disorder and that an
independent evaluation of Plaintiff was unnecessary. Seys encouraged Mintun to
continue seeing clinicians for counseling. Id.
B. Procedural Background
MEMORANDUM DECISION AND ORDER - 5

Plaintiff filed a pro se Complaint on August 16, 2016, asserting a wide variety of
claims against twenty-seven defendants. Dkt. 2. In an Initial Review Order dated
November 29, 2016, Judge Winmill, then presiding over this case, dismissed many of
those claims. Dkt. 9.
As against the Corizon Defendants, Judge Winmill determined that certain mental
health treatment claims could proceed past the pleading stage, including claims under 42
U.S.C. § 1983 for alleged violations of the Eighth Amendment through deliberate
indifference to a serious medical need and state law claims for medical malpractice. Id.
Judge Winmill allowed the state law claims to proceed to the extent Mintun had timely
complied with the Idaho Tort Claims Act and pre-litigation screening requirements. Id.
As against Defendant Siegert, Judge Winmill allowed Mintun to proceed on his
Eighth Amendment claim for deliberate indifference pursuant to 42 U.S.C. § 1983 on the
allegation that Siegert was aware of a need for further testing regarding Mintun’s alleged
Asperger’s Syndrome and disregarded that need, as well as Mintun’s state law claims of
medical malpractice and negligence.2 Id. As part of that Decision, Judge Winmill also
determined that Mintun was not entitled to an attorney. Dkt. 9, 37-38. This case was then
transferred to the undersigned as part of a general reassignment of cases. Dkt. 26.

2

It is important to note that Seigert is not a medical professional; therefore, although grouped
together by Judge Winmill, it appears that the medical malpractice claims only apply to the
Corizon Defendants while the negligence claims apply to both Corizon Defendants and Seigert.
MEMORANDUM DECISION AND ORDER - 6

III. LEGAL STANDARD
Summary judgment is proper “if the movant shows that 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). This Court’s role at summary judgment is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In
considering a motion for summary judgment, this Court must “view[] the facts in the
non-moving party’s favor.” Id.
To defeat a motion for summary judgment, the respondent need only present
evidence upon which “a reasonable juror drawing all inferences in favor of the
respondent could return a verdict in [his or her] favor.” Id. (citation omitted).
Accordingly, this Court must enter summary judgment if a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the
pleadings to defeat a motion for summary judgment; rather the respondent must set forth
the “specific facts,” supported by evidence, with “reasonable particularity” that precludes
summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.
2001).
IV. ANALYSIS
Mintun bases his claims against all Defendants on the same general allegations
and facts. Pursuant to Judge Winmill’s Initial Review Order, these claims fall into two
MEMORANDUM DECISION AND ORDER - 7

categories. First are the Eighth Amendment claims under 42 U.S.C. § 1983 for deliberate
indifference to medical needs; second, the state law claims for negligence and medical
malpractice. The Court will address each in turn as to each Defendant.
A. 42 U.S.C. § 1983
To succeed on a claim against an individual “under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988). To succeed on a claim against a
government entity under § 1983 (also called a Monell claim), a plaintiff must allege “(1)
that [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the
municipality had a policy; (3) that this policy amounts to deliberate indifference to the
plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the
constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)
(quoting Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir.
1997)). If Mintun fails to state a valid Eighth Amendment claim, he also fails to state a
Monell claim because the first element of the Monell claim will not be satisfied.
Mintun asserts that Defendants were deliberately indifferent to his medical needs
in violation of the Eighth Amendment. Initially, the Supreme Court only applied the
Eighth Amendment to claims of “inhuman techniques of punishment.” Estelle v. Gamble,
429 U.S. 97, 102 (1976). The Supreme Court subsequently “held that the Amendment
proscribes more than physically barbarous punishments.” Id. Now, “[t]he Amendment
embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and
MEMORANDUM DECISION AND ORDER - 8

decency . . . ,’ against which we must evaluate penal measures.” Id. (internal citation
omitted). Accordingly, “punishments which are incompatible with ‘the evolving
standards of decency that mark the progress of a maturing society’” violate the Eighth
Amendment. Id. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
Under these standards, the government has an “obligation to provide medical care
for those whom it is punishing by incarceration.” Id. at 103. The standard for these types
of claims is “deliberate indifference.” Id. In other words, “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of
pain,’ proscribed by the Eighth Amendment.” Id. (internal citation omitted). Examples of
actionable Eighth Amendment medical claims include a prison doctor’s indifference to a
prisoner’s medical needs or a prison guard’s intentional interference with prescribed
treatment. Id. at 104–05. An accident or mere negligence, however, cannot form the basis
of a medical-based Eighth Amendment claim. Id.
An actionable Eighth Amendment claim for inadequate medical care meets two
elements. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). First, the plaintiff
must allege “the existence of a serious medical need.” Id. An objective standard applies
to this element. Id. “Such a need exists if failure to treat the injury or condition ‘could
result in further significant injury’ or cause ‘the unnecessary and wanton infliction of
pain.’” Id. (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). “Indications that
a plaintiff has a serious medical need include ‘[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
MEMORANDUM DECISION AND ORDER - 9

activities; or the existence of chronic and substantial pain.’” Id. (quoting McGuckin v.
Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992)). It is important to note that the “routine
discomfort that is part of the penalty that criminal offenders pay for their offenses against
society” does not constitute a serious medical need. McGuckin v. Smith, 974 F.2d 1050,
1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
1133 (9th Cir. 1997).
Second, the plaintiff must allege that a prison official was “deliberately
indifferent.” Id. A subjective standard applies to this element. Id. “A prison official is
deliberately indifferent” under this standard “only if the official ‘knows of and disregards
an excessive risk to inmate health and safety.’” Id. (quoting Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004)). “[T]he official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
In the context of mental health care, courts have recognized that it is particularly
difficult to establish deliberate indifference to a serious need for numerous reasons.
“First, there is considerable room for disagreement and debate among psychiatrists and
other mental health professionals as to what is a serious mental illness for which the
denial of adequate treatment causes constitutionally cognizable pain.” Capps v. Atiyeh,
559 F. Supp. 894, 917 (D. Or. 1982). For instance, mere anxiety may not be a serious
medical need, as opposed to a part of the “routine discomfort” that is an inevitable
consequence of the penalty of imprisonment. See, e.g., Long v. Nix, 877 F. Supp.
1358,1366 (S.D. Iowa 1995), aff'd, 86 F.3d 761 (8th Cir. 1996). Second, “[t]he diagnosis
MEMORANDUM DECISION AND ORDER - 10

of mental illnesses is made tougher still because it is easy for inmates tired of their
boring, restrictive and even harsh routines to feign the symptoms of mental illness to
effect a change in their environment.” Id. (internal quotation marks omitted). Third,
“psychiatrists themselves differ on the underlying theories and thus on the methods of
treatment.” Id. “[T]he Constitution only requires that the courts make certain that
professional judgment in fact was exercised. It is not appropriate for the courts to specify
which of several professionally acceptable choices should have been made.” Id. (internal
quotation marks omitted) (quoting Youngberg v. Romeo, 457 U.S. 307, 314 (1982)).
1. Corizon Defendants
As just noted, determining whether a mental health care situation is a serious
medical need—as required—is extremely difficult. Although Asperger’s or Autism may
be considered serious in some circumstances, Mintun has not pointed to any facts or
evidence which establishes that this medical need was serious for him. Failure to establish
this first element is fatal to Mintun’s claims, but even assuming arguendo that his
condition was a serious medical need, he cannot establish that the Corizon Defendants
were deliberately indifferent to that need.
Here, Mintun received adequate mental health treatment that was far from
deliberately indifferent to his needs from Corizon via Barrett and Seys. He met with each
of these two mental health care professions twice and got the same results each time. It
may not have been what he wanted to hear, but Courts have long held that a disagreement
between a prisoner and prison medical personnel does not render their care inadequate,
much less give rise to a claim of deliberate indifference to a serious medical need. See
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Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (“A
difference of opinion between a prisoner-patient and prison medical authorities regarding
treatment does not give rise to a Section 1983 claim.”); Tucker v. Daszko, No. 2:17-CV1798 KJN P, 2017 WL 4340090, at *3 (E.D. Cal. Sept. 29, 2017) (holding that plaintiff’s
disagreement with treatment providers does not suggest deliberate indifference).
Although Mintun believed that he had Asperger’s Syndrome or something along
the Autism Spectrum, upon evaluation, two professionals did not feel such was the case.
Barrett and Seys are both well-trained and qualified individuals who have the expertise to
diagnose and treat a wide variety of mental conditions, including Asperger’s Syndrome,
Autism, PTSD, anxiety, stress, difficulties sleeping, and depression. Dkt 40-2. In the
course of their experience as mental health care providers, they have frequently
diagnosed and treated such conditions, including in the correctional context. Id. To opine
that their evaluation and diagnosis were incorrect would be simply that: an opinion. This
opinion however cannot be the basis of a valid Eight Amendment claim.3
In both cases, Barrett and Seys exercised their best reasoned judgment in light of
the evidence available to them to determine that Mintun did not satisfy the diagnostic

3

This is particularly important in light of the fact that there is no direct care for Asperger’s or
Autism, i.e., no miracle medication. Dkt. 40-2. Normally, all mental health care professionals
can do is treat the underlying symptoms. Id. The counselling Mintun was already receiving for
his stress, anxiety, depression, and nervousness around inmates, such as working with clinicians
to learn coping and management strategies, is common treatment for Asperger’s Syndrome and
Autism. Id. Therefore, even if Barrett or Seys had diagnosed Mintun with Asperger’s or Autism,
there is no indication that his treatment would have been any different from what he was already
receiving.
MEMORANDUM DECISION AND ORDER - 12

criteria for any condition, that his reported symptoms were consistent with the stressors
of prison life, and that a diagnosis of Asperger’s Syndrome or Autism Spectrum Disorder
would not alter his treatment. Mintun also received regular counseling from Licensed
Professional Counselors employed by IDOC who endeavored to teach him skills to
manage the stress, anxiety, and fear of other inmates that he reported. See Rimer v.
Sandoval, No. 213CV1440JCMGWF, 2016 WL 659713, at *3 (D. Nev. Feb. 18, 2016),
aff’d, 692 F. App’x 905 (9th Cir. 2017) (finding no deliberate indifference to complaints
of stress and anxiety where mental health care staff “offered plaintiff alternative coping
mechanisms”).
Additionally, Mintun is not entitled to a second, or outside, opinion because he
disagreed with Barrett and Seys. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.
1986) (“A prison inmate has no independent constitutional right to outside medical care
additional and supplemental to the medical care provided by the prison staff within the
institution.”); Williams v. Borg, 108 F.3d 1387 (9th Cir. 1997) (unpublished) (“Decisions
regarding [plaintiff]’s diagnosis, method of treatment, and whether and when he should
see a specialist are medical decisions that do not represent cruel and unusual
punishment.”); Rojo v. FBOP, No.109CV01152AWISMSPC, 2010 WL 55640, at *2
(E.D. Cal. Jan. 6, 2010) (“Plaintiff does not have an entitlement under the Constitution to
a second opinion or to treatment by an outside doctor.”); Williams v. Ralston, No. CV 144522-UA JEM, 2014 WL 3926990, at *6 (C.D. Cal. Aug. 12, 2014) (finding refusal to
refer inmate to outside provider for tests was classic example of difference of opinion that
does not give rise to deliberate indifference claim).
MEMORANDUM DECISION AND ORDER - 13

“A defendant must purposefully ignore or fail to respond to a prisoner’s pain or
possible medical need in order for deliberate indifference to be established.” McGuckin,
974 F.2d at 1060. “Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
support this claim. Even gross negligence is insufficient to establish deliberate
indifference to serious medical needs.” Lemire v. California Dep't of Corr. & Rehab., 726
F.3d 1062, 1082 (9th Cir. 2013) (internal quotation marks, alterations, and citations
omitted).
Here none of these characteristics are present. The evidence shows that the
Corizon Defendants adequately addressed Mintun’s needs and that they were not
deliberately indifferent to Mintun’s medical needs. Therefore, Mintun does not have an
actionable Eight Amendment claim. Because Mintun does not have an Eight Amendment
claim, he cannot state a Monell claim. Accordingly, summary judgment is appropriate on
Mintun’s 42 U.S.C. § 1983 claims against the Corizon Defendants.
2. Siegert
As to Mintun’s deliberate indifference claims against Defendant Siegert, the same
analysis applies however on a much more limited scale.
Broadly speaking, Mintun alleges that Siegert was deliberately indifferent to his
medical needs because she took no action upon receipt of his three grievance notices. As
Health Services Director, Siegert oversees Corizon’s provision of medical services to
prisoners at IDOC facilities. Dkt. 39-5. One of her duties is to investigate any medicalrelated issues or complaints received through concern forms and grievances. Id. When

MEMORANDUM DECISION AND ORDER - 14

she receives such a concern form or grievance, she researches the issue presented in the
grievance independently. Id.
As explained in her affidavit, when Defendant Siegert reviews an inmate’s
medical records as part of a grievance appeal, she looks for information that supports the
inmate’s claims or reveals a medical issue that needs further intervention. Id. If she does
not find that information in the medical record, she will refer the inmate back to the
treating medical provider. Id. When the issue involves an inmate’s disagreement with the
treatment he is receiving and there is no indication from the record that the treatment is
inadequate based upon the inmate’s medical needs, she will also refer the inmate back to
the treatment provider. Id. Defendant Siegert cannot overrule a provider’s diagnoses or
treatment recommendations. Id. Finally, pursuant to IDOC policy, concern forms or
grievances for appellate review that have been filed on the same issue will be rejected,
even if the concern form or grievance appeal has been written in such a manner that it
appears to be a new issue. Id.
As a threshold matter, the Court notes that there is a question regarding whether
the statute of limitations has run on the claims Mintun asserts against Siegert.
A prisoner alleging constitutional violations under 42 U.S.C. § 1983 must comply
with the applicable state statute of limitations regarding personal injury. See e.g., Wilson
v. Garcia, 471 U.S. 261, 278 (1985). Idaho Code § 5-219(4) establishes that all actions to
recover damages for personal injury must be filed within two years from the date the
cause of action accrues. The statute of limitations begins to run when a potential plaintiff
knows or has reason to know of the asserted injury. Idaho Code§ 5-219(4); Action Apt.
MEMORANDUM DECISION AND ORDER - 15

Ass’n v. Santa Monica Rent Control Opinion Bd., 509 F.3d 1020, 1026-1027 (9th Cir.
2007) (citing De Anza Properties X Ltd. v. Cty. of Santa Cruz, 936 F .2d 1084, 1086 (9th
Cir. 1991)). In other words, the statute of limitations begins to run “when the wrongful
act or omission results in damages. The cause of action accrues even though the full
extent of the injury is not then known or predictable.” Wallace v. Kato, 549 U.S. 384, 390
(2007) (internal quotation marks omitted).
Here, Mintun filed his Complaint on August 16, 2016. Thus only Mintun’s third
grievance, filed with Siegert on September 2, 2014, will be considered by the Court as
any grievances filed before August 16, 2014, are barred by the statute of limitations.4
Under the standards already outlined in the previous section, Mintun similarly
cannot establish that Siegert was deliberately indifferent to his medical needs. When
Mintun appealed Seys’s decision to not allow an outside medical professional to test him
for Asperger’s Syndrome or Autism, Siegert undertook an investigation of his medical
history and determined that Barrett and Seys had made a sound determination. Siegert
found nothing in Mintun’s records which suggested he needed further testing on this
issue. Siegert’s role is not to overrule medical diagnosis, but to determine if the care
given was adequate. Under the circumstances, Siegert determined that the care Mintun
received was indeed adequate and that the lack of an Asperger’s or Autism spectrum
diagnosis from two professionals did not necessitate an outside opinion. Siegert further

4

Thus the Court will not discuss Mintun’s Feb 3, 2012, or August 27, 2012, grievances.

MEMORANDUM DECISION AND ORDER - 16

recommended that Mintun continue developing coping mechanisms and then dismissed
the grievance.
Finally, insofar as Mintun is arguing a respondeat superior theory, the Court notes
that there is no respondeat superior liability under 42 U.S.C. § 1983, and that a supervisor
is only liable for the constitutional violations of his or her subordinates if the supervisor
participated in or directed the violations, or knew of the violations and failed to act to
prevent them. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81
(9th Cir. 1984). Here, Mintun has not pointed to anything that constitutes a constitutional
violation nor anything that indicates Siegert was a willful participant in any alleged
violations. Siegert relied on the medical records and treatment of two trained
professionals. She simply upheld what they recommended.
Neither the Corizon Defendants, nor Siegert violated Mintun’s Eight Amendment
Rights. The record does not establish any deliberate indifference. Mintun’s bare
allegations and uncorroborated opinions are insufficient to establish a valid Eight
Amendment claim. Summary judgment is therefore appropriate as to these claims.
B. Medical Malpractice and Negligence
Mintun’s second set of claims are Idaho state law claims of medical malpractice
and negligence. As previously noted, Siegert is not a medical practitioner; therefore, it
appears the medical malpractice claims apply only to the Corizon Defendants.
“In a negligence action the plaintiff must establish the following elements: ‘(1) a
duty, recognized by law, requiring the defendant to conform to a certain standard of
conduct; (2) a breach of duty; (3) a causal connection between the defendant’s conduct
MEMORANDUM DECISION AND ORDER - 17

and the resulting injuries; and (4) actual loss or damage.’” Jones v. Starnes, 245 P.3d
1009, 1012 (Idaho 2011) (quoting Hansen v. City of Pocatello, 184 P.3d 206, 208 (Idaho
2008)).
To succeed on a medical malpractice claim, the plaintiff must “affirmatively prove
by direct expert testimony and by a preponderance of all the competent evidence” that the
defendant medical provider “negligently failed to meet the applicable standard of health
care practice of the community in which such care allegedly was or should have been
provided.” Idaho Code § 6-1012.
A plaintiff asserting a medical malpractice claim must first submit the claim to a
prelitigation screening panel in accordance with Idaho Code section 6-1001. Further,
state law claims against government employees may not be maintained unless the
plaintiff has complied with the Idaho Tort Claims Act (“ITCA”), set forth in Idaho Code
sections 6-901 through 6-929. The ITCA provides,
All claims against a political .. . [subdivision] arising under the provisions of
this act and all claims against an employee of a political subdivision for any
act or omission of the employee within the course or scope of his
employment shall be presented to and filed with the clerk or secretary of the
political subdivision within one hundred eighty (180) days from the date the
claim arose or reasonably should have been discovered, whichever is later.
Id. § 6-906. A “claim” under the ITCA is “any written demand to recover money
damages from a governmental entity or its employee which any person is legally entitled
to recover under this act as compensation for the negligent or otherwise wrongful act or
omission of a governmental entity or its employee.” Id. § 6-902(7). The ITCA further
provides that “[n]o claim or action shall be allowed against a governmental entity or its
MEMORANDUM DECISION AND ORDER - 18

employee unless the claim has been presented and filed within the time limits prescribed
by this act.” Id. § 6-908.
1. Corizon Defendants
The Court first addresses Mintun’s medical malpractice claims. Mintun has failed
to establish that he has complied with two Idaho statutes relevant to medical malpractice
claims.
First, the requirement under Idaho law that all medical malpractice claims be
submitted to a prelitigation screening panel is “compulsory as a condition precedent to
litigation.” Id. § 6-1001. Here we have no indication that Mintun complied with this
mandatory requirement.
Second, a plaintiff must demonstrate what the applicable community standard of
care is and how the defendant has failed to meet that standard. Id. § 6-1012. Expert
testimony is the mechanism by which a plaintiff presents this evidence. Id.
Mintun has not designated an expert to provide the necessary evidence in this case
to support a medical malpractice claim. Idaho Code section 6-1013 lays out the basic
foundational elements for the admissibility of the expert testimony required by Idaho
Code section 6-1012: (1) the opinion must be held by the expert, (2) testified to with
reasonable medical certainty, and (3) and based on professional knowledge and expertise
coupled with actual knowledge of the applicable community standard to which his or her
expert opinion testimony is addressed.
Summary judgment is appropriate when a plaintiff has not designated any expert.
See Storm v. Corr. Med. Servs., No. 1:10-CV-00319-BLW, 2013 WL 5274219, at *12
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(D. Idaho Sept. 18, 2013) (dismissing section 1983 claims on summary judgment for
failure to provide expert testimony as required by Idaho Code section 6-1012).
In response to these arguments, Mintun simply says that as a ward of the state with
limited funds, this expert testimony cannot be required of him, or in the alternative, that
“means should be provided for Plaintiff to be able to obtain such expert testimony.” Dkt.
42, ¶ 8. While inmates are entitled to access the courts, they are not entitled to the
resources necessary to “litigate effectively” once in court. Lewis v. Casey, 518 U.S. 343,
354 (1996). This Court has held that pro se inmates are not excused from the obligation
to provide the expert testimony required by Idaho law in support of a claim for medical
malpractice, nor will the court undertake to do this on the inmate’s behalf. Storm, 2013
WL 5274219, at *13.
Because Mintun has not complied with the prelitigation screening requirement or
retained an expert as required by Idaho law, summary judgment is appropriate.
In regards to Mintun’s negligence claims against the Corizon Defendants, the
Court reincorporates the prior analysis regarding deliberate indifference that outlines that
Mintun received adequate treatment from Corizon via Barrett and Seys. Mintun’s bare
allegations, with nothing more, are insufficient to establish negligence.
While it is true that Barrett and Seys owed Mintun a duty of care, Mintun has
failed to establish that there was any breach of that duty. Here, these medical
professionals—both trained in recognizing and diagnosing the disorders at issue—
exercised their best judgment in light of the evidence before them. Based upon their
evaluations, observations, and professional medical opinions, Mintun did not meet the
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criteria for either Asperger’s Syndrome or Autism Spectrum Disorder. Furthermore, both
providers found that an independent evaluation was not necessary. Barrett and Seys were
not negligent when, after evaluating Mintun, they determined in their professional
opinion that a certain diagnosis was not applicable. Accordingly, summary Judgment is
appropriate on this claim.
2. Siegert
As noted above, Idaho law mandates that Mintun take certain procedural steps in
order to effectuate a valid tort claim. Failure to do any number of these requirements is
fatal to any such claim. In this case, Mintun did not take the appropriate procedural steps
and summary judgment is therefore appropriate.
The ITCA requires a plaintiff to file all tort claims against a government entity or
employee with the Secretary of State within 180 days from “the date the claim arose or
reasonably should have been discovered.” Idaho Code § 6-905.
Mintun never addresses whether he filed the requisite claim in this particular
case. From the record it appears that Mintun has filed four tort claims in the last 6 years
with the Secretary of State; one in 2012, 2013, 2014, and 2015. Dkt. 39-3. The first three
relate to matters not connected to this lawsuit. The 2015 filing does appear to list
“deliberate indifference” as a cause, however Mintun never references Siegert in that
document.
More importantly, even were the Court to construe the 2015 Notice as meeting
the requirements under the ITCA, it was filed on December 3, 2015. The last known
interaction (at least that would give rise to a claim) that Mintun had with Siegert was on
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September 2, 2014, when he filed his third grievance. Even if this September 2, 2014,
incident is what Mintun was referring to in his December 3, 2015, claim, he did not file
that claim within the required 180 days. Although other reasons exist for denying this
claim, the Court does not reach those reasons as this claim is time-barred. Summary
judgment is therefore appropriate.
C. Motion to Appoint Counsel
As part of his Complaint, Mintun requested that the Court appoint counsel to
represent him. As noted in Judge Winmill’s Initial Review Order, unlike criminal
defendants, prisoners and indigents in civil actions have no constitutional right to counsel
unless their physical liberty is at stake. Lassiter v. Dep’t of Social Services, 452 U.S. 18,
25 (1981). Whether a court appoints counsel for indigent litigants is within the court’s
discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
The Court also reminded Mintun that:
a federal court has no authority to require attorneys to represent indigent
litigants in civil cases under 28 U.S.C. § 1915(d). Mallard v. U.S. Dist. Court
for S. Dist. of Iowa, 490 U.S. 296, 298 (1989). Rather, when a Court
“appoints” an attorney, it can do so only if the attorney voluntarily accepts
the assignment. Id. The Court has no funds to pay for attorneys’ fees in civil
matters such as this one. Therefore, it is often difficult to find attorneys
willing to work on a case without payment, especially in prisoner cases,
where contact with the client is especially difficult. For these reasons,
Plaintiff should attempt to procure counsel on a contingency or other basis,
if at all possible.
Dkt. 9, at 38. It appears that Mintun did not try (or was unsuccessfully if he did try) to
retain counsel on his own. Nevertheless, he petitions the Court a second time to appoint
counsel for him. The Court again finds that Mintun is not entitled to an appointment of
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counsel. Moreover, there are numerous legal and statutory reasons why none of Mintun’s
claims can survive summary judgment. Having an attorney would not have changed that.
The Court therefore DENIES Mintun’s Renewed Motion for Appointment of Counsel.
V. ORDER
1. Rona Siegert’s Motion for Summary Judgment (Dkt. 39) is GRANTED.
2. The Corizon Defendants’ Motion for Summary Judgment (Dkt. 40) is GRANTED.
3. Mintun’s Renewed Motion for Appointment of Counsel (Dkt. 43) is DENIED.
4. The Court will enter a separate Judgment in accordance with Fed. R. Civ. P. 58.

DATED: February 22, 2018
_________________________
David C. Nye
U.S. District Court Judge

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