Ocampo v. Corizon LLC et al

Filing 121

MEMORANDUM DECISION AND ORDER. Defendant Dunnings Motion for Summary Judgment (Dkt. 79 ) is GRANTED. Corizon Defendants first Motion in Limine (Dkt. 80 ) is GRANTED in PART and DENIED in PART. Defendant Crowls Motion for Summary Judgment (Dkt. 82 ) is GRANTED. Corizon Defendants Motion for Summary Judgment (Dkt. 83 ) is GRANTED. Defendant Crowls Motion to Strike (Dkt. 95 ) is GRANTED in PART and DENIED in PART. Corizon Defendants second Motion in Limine (Dkt. 97 ) is GRANTED in PART and DENIED in PART. Defendant Dunnings Motion to Strike (Dkt. 101 ) is GRANTED. Signed by Judge David C. Nye. ((alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LANCE GORDON OCAMPO,
Case No. 1:18-cv-00047-DCN
Plaintiff,
v.
CORIZON, LLC., a Missouri
Corporation; DIANNA COLLINS;
BRIAN CROWL, Lieutenant North
Idaho Correctional Institution; JIM
DUNNING, KEITH BOLIN; PATTI
SCHMITT; and JOHN/JANE DOES 110;

MEMORANDUM DECISION AND
ORDER

Defendants.

I. INTRODUCTION
Pending before the Court are numerous motions for summary judgment filed by the
Defendants in this case. Dkts. 79, 82, 83. Defendants Corizon, Dianna Collins, Keith Bolin,
and Patti Schmitt (the “Corizon Defendants”) also filed two Motions in Limine (Dkts. 80,
97) and Defendants Crowl and Dunning each filed a Motion to Strike (Dkts. 95, 101). The
latter four motions challenge certain evidence and testimony presented by Plaintiff Lance
Gordon Ocampo in opposition to Defendants’ various motions for summary judgment.
The Court held oral argument on June 26, 2020, and took the motions under
advisement. For the reasons set forth below, the Court GRANTS in PART and DENIES in
PART the various evidentiary motions and GRANTS each of the Defendants’ Motions for
Summary Judgment.
MEMORANDUM DECISION AND ORDER - 1

II. BACKGROUND
A. Factual Background1
Ocampo is a former inmate of the Idaho Department of Corrections (“IDOC”) who
was housed at North Idaho Correctional Institution (“NICI”) beginning on March 14, 2016.
Ocampo resided at NICI because a judge sentenced him to a Retained Jurisdiction program
or “rider.” Broadly speaking, retained jurisdiction inmates at NICI—such as Ocampo—are
under less security than those housed at a traditional prison; inmate housing units are not
as restrictive and inmates are allowed to move about more freely in order to attend
programming, work, medical appointments etc.
Upon his incarceration, Ocampo went through the standard Idaho State Correctional
Institution (“ISCI”) intake process before being transferred to NICI. On his Medical
History Questionnaire, Ocampo indicated his most recent dental examination was “longer
than 10 years [ago],” that he had a significant history of drug and alcohol abuse (in
particular smoking), and that he believed he had some cavities and “rotten” wisdom teeth.
Dkt. 83-4, at 7.
Shortly after arriving at NICI—on April 24, 2016—Ocampo filed a Health Service
Request (“HSR”) form to have a wisdom tooth pulled. Ocampo’s wisdom tooth, which was
severely decayed, was removed four days later—on April 28, 2016—by a Dentist, Dr.
Bradley Schaff, DDS. The procedure was uneventful.

Although the Court has previously set forth the facts of this case (see Dkt. 74, at 2-4), it does so again
here—and in greater detail—in order to provide a complete record upon which to review the motions for
summary judgment.

1

MEMORANDUM DECISION AND ORDER - 2

On April 29, 2016—the day after the tooth extraction—Ocampo began experiencing
some pain in his mouth but believed the pain was “manageable” and did not submit an
HSR or notify any medical providers or correctional officers of his discomfort. Dkt. 83-4,
at 7.
The following day—April 30, 2016—at 8:16 p.m., Ocampo submitted an HSR
complaining of pain in the extraction area and opining that the site might be infected. That
same day, Ocampo was seen by Correctional Medical Specialist (“CMS”) Hans Gentry.
CMS Gentry took Ocampo’s vitals (which were within normal range), noted the swelling
around the extraction site, and prescribed ibuprofen to help Ocampo cope with the pain.
Gentry also scheduled Ocampo for a follow-up dental visit on May 5, 2016—the next time
a dentist was scheduled to visit NICI.
The next day, on May 1, 2016, Ocampo submitted another HSR complaining of
more pain, difficulty opening his mouth, and a sore throat. At 8:00 a.m. that morning, CMS
Jim Dunning saw Ocampo. Dunning noted that Ocampo’s vitals were within range but
observed that Ocampo had some increased swelling and difficulty opening his mouth.
During this consultation, Ocampo reported that an inmate in his housing unit had strep
throat. Based upon his assessment of Ocampo—and the fact that a strep infection was, in
fact, going through the facility at the time—Dunning prescribed Ocampo Pen V-K,2
500mg, to be taken three (3) times per day for 10 days. Dunning also scheduled Ocampo
for a follow-up appointment for later that day around noon.

Pen V-K is a Penicillin antibiotic that can be used to treat several bacterial infections including strep throat
and dental infections. Dkt. 83-12, at 4; Dkt. 83-14, at 4.

2

MEMORANDUM DECISION AND ORDER - 3

When Dunning saw Ocampo later that day, Ocampo inquired as to what he was
supposed to do for the pain and his inability to eat. Dunning told Ocampo to “cowboy up,”
wait for the antibiotics to take effect, and eat what he could. After both appointments,
Dunning initiated referral orders for further evaluation and care.
On May 2, 2016, Ocampo submitted another HSR complaining of continued pain
and swelling around the tooth extraction site. Licensed practical nurse (“LPN”) Patti
Schmitt attended to Ocampo at approximately 12:15 p.m. that day. LPN Schmitt called Dr.
Schaff—the dentist who removed the tooth—and apprised him of Ocampo’s condition. Dr.
Schaff ordered a regimen of antibiotics for Ocampo, including: 1) the continued use of Pen
V-K) an injection of Rocephin,3 and 3) 500mg of Metronidazole.4 The Rocephin injection
was given to Ocampo after the call with Dr. Schaff and Ocampo also began taking
Metronidazole that day.
Later in the day on May 2, 2016, Ocampo was involved in a telephone conversation
with Lt. Brian Crowl and an unknown officer. This officer—who reported to Crowl—
called Crowl on Ocampo’s behalf due to Ocampo’s self-reported medical needs. While
Ocampo cannot recollect the name of this officer, a subsequent review of the Unit 4
documents reveal that Officer Donna Mader was on duty that day and was likely the person
who called Crowl on Ocampo’s behalf. Dkt. 82, ¶ 15.

3

Rocephin IM is a broad-spectrum antibiotic used to treat infections in the head and neck. Dkt. 83-12, at 4.

4

Metronidazole, or “Flagyl” is another antibiotic commonly used for odontogenic infections. Dkt. 83-12,
at 4; Dkt. 83-14, at 4.

MEMORANDUM DECISION AND ORDER - 4

During this phone conversation, Ocampo heard the officer tell Crowl that Ocampo
had swelling in his face, that Ocampo reported he thought he was dying, and that Ocampo
was having difficulty eating and sleeping because of the pain. The officer allegedly relayed
a question from Crowl to Ocampo asking him if he would have gone to the hospital had he
not been incarcerated. The officer then told Ocampo that Crowl thought Ocampo was drug
seeking, that he would not be going to the hospital at that moment, and that he should wait
for medical personnel to respond. Dkt. 82, ¶ 22.
At approximately 7:00 p.m. that evening, Registered Nurse (“RN”) Amanda Shriver
checked on Ocampo. She observed a low-grade fever (99.3 degrees) and that Ocampo was
resting and able to speak. RN Shriver updated Dr. Schaff on Ocampo’s condition.
Later that night, at approximately 8:20 p.m., LPN Keith Bolin checked on Ocampo.
While his temperature and vitals appeared slightly elevated, Bolin noted that such
symptoms were consistent with inflammation and the use of antibiotics. Bolin observed
that Ocampo appeared alert and requested that security check on him throughout the night
since medical staff are not onsite from roughly 9:00 p.m. to 4:00 a.m.
The next morning, on May 3, 2016, at 5:30 a.m., LPN Schmitt again met with
Ocampo. LPN Schmitt noted that Ocampo’s temperature was 100 degrees, that he was
alert, that the swelling had started to progress into his neck area, and that security told her
Ocampo had slept during the night.
That same day, at about 12:30 p.m., RN Shriver met with Ocampo and observed
that the swelling was increasing in his neck and shoulder area. Because it appeared the
swelling in Ocampo’s neck was not improving, RN Shriver called the on-call provider,
MEMORANDUM DECISION AND ORDER - 5

Nurse Practitioner (“NP”) Dianna Collins, to coordinate transferring Ocampo to a hospital.
Because NP Collins was not on-site at NICI, RN Shriver took pictures of Ocampo’s neck
and face and sent them to NP Collins.5 After viewing the photographs and consulting
further with RN Shriver, NP Collins authorized Ocampo to be transferred to St. Mary’s
Hospital in Cottonwood, Idaho.
At St. Mary’s, Ocampo was ultimately diagnosed with Ludwig’s Angina—a rare
mouth infection. Ocampo was transferred to a larger hospital—St. Josephs in Lewiston,
Idaho—for further assessment and eventually had surgery to remove a large abscess that
had developed due to the infection. The surgery was uneventful. Ocampo stayed at the
hospital for several days.
On May 10, 2016, Ocampo was transported to the Idaho State Correctional
Institution (“ISCI”) where he served the remaining six months of his sentence. Ocampo
was released from custody on December 13, 2016.
B. Procedural Background
Ocampo filed his Complaint on January 30, 2018. Dkt. 1. Defendants Anderson and
Crowl filed an Answer on March 5, 2018. Dkt. 9. On April 4, 2018, Ocampo agreed to
Defendants’ Stipulation for an Order to Amend Answer to his Complaint which amended
and added a Fifteenth Affirmative Defense. Dkts. 13, 14. The same day, Defendants filed
their Amended Answer. Dkt. 15.

It appears this took some time because RN Shriver did not have good cellular reception at NICI.
Accordingly, she drove down the road (to a location with good cellular service), sent the pictures to NP
Collins, and then returned to NICI.

5

MEMORANDUM DECISION AND ORDER - 6

On April 4, 2018, the parties also filed a stipulated Litigation Plan which set the
deadline of July 5, 2018, for joinder of parties and amendment of pleadings. Dkt. 17. On
April 30, 2018, Ocampo moved to file an Amended Complaint to add claims against certain
defendants who were formerly unknown. Dkt. 27. On May 21, 2018, the Court granted the
Motion. Dkt. 32. On June 29, 2018, Defendants Anderson and Crowl filed an Answer to
Ocampo’s Amended Complaint. Dkt. 37. On July 5, 2018, the deadline for amendment of
pleadings and joinder of parties expired. Dkt. 25; Dkt. 35.
Defendants Anderson and Crowl then filed an early motion for summary judgment.
Dkt. 40. Numerous procedural and scheduling motions followed. Dkts. 51, 52, 55, 56, 57,
58, 60. The Court dealt with these motions in its Memorandum Decision and Order issued
April 4, 2019. Dkt. 74.
The parties subsequently reset certain litigation deadlines as follows: all fact
discovery was to be completed by May 6, 2019; all expert discovery was to be completed
by May 18, 2019; Defendants would disclose their experts by April 11, 2019; and Plaintiff
would disclose any rebuttal experts by May 13, 2019. Dkt. 73. The dispositive motion
deadline was subsequently reset for July 31, 2019. Dkt. 75.
On July 31, 2019, all represented defendants filed motions for summary judgment:
Defendant Dunning (Dkt. 79); Defendant Crowl (Dkt. 82); and the Corizon Defendants
(Dkt. 83). The Corizon Defendants also filed their First Motion in Limine (Dkt. 80) seeking
to limit information presented in Ocampo’s expert reports. Ocampo responded to all
pending motions in due course.

MEMORANDUM DECISION AND ORDER - 7

Defendants filed reply briefs in support of their motions for summary judgment and
also each filed a motion to strike various testimony and evidence Ocampo presented in his
responsive briefing. The Corizon Defendants styled their motion as a Second Motion in
Limine (Dkt. 97); Defendants Dunning and Crowl styled their motions as Motions to Strike
(Dkts. 95, 97).
Once briefing was complete, the Court held oral argument on all pending motions.
The Court will address each motion below.
III. LEGAL STANDARD6
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). The 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). Importantly,
the Court does not make credibility determinations at this stage of the litigation. Such
determinations are reserved for the trier of fact. Hanon v. Dataproducts Corp., 976 F.2d
497, 507 (9th Cir. 1992).
In considering a motion for summary judgment, the Court must “view[] the facts in
the non-moving party’s favor.” Zetwick, 850 F.3d at 441. To defeat a motion for summary
judgment, the respondent need only present evidence upon which “a reasonable juror

The various Motions in Limine and Motions to Strike will be discussed below in conjunction with their
companion motions for summary judgment. The Court will set forth specific legal standards for those
motions individually where necessary.

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MEMORANDUM DECISION AND ORDER - 8

drawing all inferences in favor of the respondent could return a verdict in [his or her]
favor.” Id. (citation omitted). Accordingly, the 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 Prods., Inc. v. Oskar, 247 F.3d
986, 997 (9th Cir. 2001).
IV. ANALYSIS
A. Corizon Defendants’ Motion for Summary Judgment
Before substantively addressing the Corizon Defendants’ Motion for Summary
Judgment (Dkt. 83), the Court must address the concurrently filed motions in limine (Dkts.
80, 97) as each involves the evidence the Court will consider when analyzing the Motion
for Summary Judgment.
1. Corizon’s First Motion in Limine (Dkt. 80)
On July 31, 2019—in conjunction with their filing of a Motion for Summary
Judgment—the Corizon Defendants filed a Motion in Limine seeking to exclude two of
Ocampo’s expert reports. The first report was produced by Cheryl Fabello, RN, and
purportedly addresses the standard of care in a correctional facility. The second was
authored by Dr. Jason S. Ludwig.

MEMORANDUM DECISION AND ORDER - 9

Because Corizon presents separate arguments as to why each of these individuals’
reports should be excluded, the Court will address each separately.
a. Cheryl Fabello
Cheryl Fabello is a registered nurse who works in Boise, Idaho. She has spent the
majority of her career caring for veterans and senior citizens. In support of the claims at
issue in this case, Ocampo commissioned Fabello to review and opine on the standard of
care in a correctional facility—specifically NICI. Broadly speaking, Fabello’s opinion is
that Defendants “breached national and community standards of care by delaying and
failing . . . to completely and accurately document and communicate . . . changes in Mr.
Ocampo’s condition so he could receive medical care for his obvious distress, pain and
suffering.” Dkt. 80-3, at 7. The Corizon Defendants object to Fabello’s report under Federal
Rule of Civil Procedure 56 and Federal Rule of Evidence 702.
“Rule 56 requires that affidavits supporting or opposing summary judgment ‘be
made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.’” Pauls v. Green,
816 F. Supp. 2d 961, 978 (D. Idaho 2011) (quoting Fed. R. Civ. P. 56(c)(4)).
The extent to which experts may render an opinion is addressed under the wellknown standard established in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and its progeny, and now set forth in Rule 702 of the Federal Rules of Evidence. See Moore
v. Deer Valley Trucking, Inc., No. 4:13-CV-00046-BLW, 2014 WL 4956241, at *1 (D.
Idaho Oct. 2, 2014).

MEMORANDUM DECISION AND ORDER - 10

Rule 702 establishes several requirements for admitting an expert opinion. First, the
evidence offered by the expert must assist the trier of fact either to understand the evidence
or to determine a fact in issue. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010); Fed.
R. Evid. 702. “The requirement that the opinion testimony assist the trier of fact goes
primarily to relevance.” Id. (internal quotation marks and citation omitted).
Additionally, the witness must be sufficiently qualified to render the opinion. Id. If
specialized knowledge will assist the trier of fact in understanding the evidence or
determining a fact in issue, a witness qualified by knowledge, skill, experience, training or
education may offer expert testimony where: (1) the opinion is based upon sufficient facts
or data, (2) the opinion is the product of reliable principles and methods; and (3) the witness
has applied those principles and methods reliably to the facts of the case. Fed. R. Evid.
702; Daubert, 509 U.S. at 592–93; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147
(1999). The inquiry is a flexible one. Primiano, 598 F.3d at 564. Ultimately, a trial court
must “assure that the expert testimony both rests on a reliable foundation and is relevant to
the task at hand.” Id. (internal quotation marks and citation omitted).
Reliability and relevance, however, must be distinguished from problems with
expert opinions that amount to impeachment and, consequently, do not warrant exclusion.
See City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (stating
that, under Daubert, “[t]he judge is ‘supposed to screen the jury from unreliable nonsense
opinions, but not exclude opinions merely because they are impeachable.’” (quoting Alaska
Rent–A–Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013)). Thus, “[a]s
Daubert confirmed, ‘[v]igorous cross-examination, presentation of contrary evidence, and
MEMORANDUM DECISION AND ORDER - 11

careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.’” United States v. Wells, 879 F.3d 900, 933 (9th
Cir. 2018) (quoting Daubert, 509 U.S. at 596).
In this case, the Corizon Defendants object to Fabello’s expert report and opinion
arguing she is not qualified to testify to these matters because she has never worked in a
correctional setting, never worked in north Idaho (at NICI or otherwise), and has never
worked with patients who have Ludwig’s Angina.
Fabello does not dispute this. She readily admits that she has never worked in a
correctional facility, has never worked at NICI (or anywhere in north Idaho), and that her
only efforts to familiarize herself with the applicable standard of care was to call the
nursing faculty at Lewis and Clark State College (which is located in Northern Idaho) and
discuss the local standard of care with a faculty member. She also admits she has no
experience with Ludwig’s Angina. Dkt. 80-5, at 4-10.
The Corizon Defendant’s further argue that Fabello is not qualified to testify
regarding the standard of care for nurse practitioners as she, herself, is not a nurse
practitioner, but rather a registered nurse.
Ocampo disagrees with both assertions, arguing that while Fabello might not have
experience in the correctional setting, such is irrelevant because she is testifying as to
whether the medical care was deliberately indifferent, not what the standard of care is in a
correctional facility. Second, Ocampo argues the Corizon Defendants are being myopic in
their analysis and that a registered nurse can opine on the qualifications and work standards
of a nurse practitioner.
MEMORANDUM DECISION AND ORDER - 12

As to the first assertion, Ocampo attempts to make a distinction where there is none.
While Fabello is testifying as to “deliberate indifference,” the only way to determine
whether any particular behavior was indifferent is to determine what the appropriate
standard of care was and whether Defendants actions were reasonable. In this case, such
analysis must take into account the fact that Ocampo’s care took place in a correctional
setting. While Ocampo admits that “inmates are not entitled to the same medical care that
would be provided outside of prison,” Dkt. 91, at 6, he contends that does not mean they
are entitled to an inferior standard of care. Again, the Court struggles to see the distinction.
To be sure, the Court is not advocating for, or condoning, an inferior standard of care, but
notes there are obvious considerations that must be taken into account when treating
prisoners in a correctional setting which would not be present in the community. Again,
while those considerations do not diminish the actual standard of care in the aggregate,
they must, nonetheless, be weighed when determining whether prison officials, employees,
or agents acted with deliberate indifference in providing medical care in any given
situation.
It is clear from Fabello’s testimony and report that she does not have personal
experience in many of the matters at issue in this case. Experience, however, is not
necessarily required to render an expert opinion. Under Rule 702, a witness may qualify as
an expert based on their “knowledge, skill, experience, training or education.” Fed. R. Evid.
702. In other words, “hands-on” experience is not a prerequisite to rendering testimony.
Fabello has both a bachelor’s degree and a master’s degree in nursing. She explains in her
report that she took the time to research, analyze, and review all of Ocampo’s medical files
MEMORANDUM DECISION AND ORDER - 13

and consulted with local practitioners to develop her opinions regarding the applicable
standard of care in North Idaho—an allowed methodology. See e.g., Perry v. Magic Valley
Reg. Med. Ctr., 995 P.2d 816, 821 (2000) (“A common means for an out-of-area expert to
obtain knowledge of the local standard of care is by inquiring of a local specialist.”). In
short, Fabello has extensive training in nursing and has familiarized herself, albeit in a
generalized manner, with the standard of care in North Idaho. Additionally, the fact that
Fabello is a registered nurse giving opinions regarding nurse practitioners is not fatal to her
opinion. These factors cut in favor of allowing her testimony.
These observations aside, the Court is still concerned that Fabello has no training,
experience, or education in correctional nursing—and did not consult with anyone who
does—nor does she have any experience in diagnosing or treating Ludwig’s Angina—the
disease at issue in this case. This lack of experience, training, and education does not render
Fabello’s testimony inadmissible, however, it lends itself to the conclusion that the Court
should give it little weight when determining the motions today.
First, Fabello claims she has some co-workers who previously worked in
correctional settings and that she has reviewed former inmates’ medical records as part of
her current employment, but does not necessarily indicate how these situations informed
her current opinion. Notwithstanding such circumstances, as Corizon’s expert points out,
correctional nursing is, simply put, “nothing like community nursing.” Dkt. 81-2, at 14.
Correctional nurses “are aware of another universe of considerations which can drive the
threshold for [deciding to transfer a patient to the emergency department]; considerations
that community or extended care nurses never have to reconcile.” Id. at 12. As noted,
MEMORANDUM DECISION AND ORDER - 14

Fabello admits she has never worked in a correctional setting, has never worked with a
Correctional Medical Specialist, and is “unaware” of what it means to be a Certified
Correctional Health Professional. Dkt. 80-5, at 90:16-91:16. She also stated that she is
unfamiliar with the National Commission on Correctional Health Care guidelines
applicable to prisons, including those at issue in this case. Id. at 89:3-23. Fabello likewise
does not have any experience in emergency or trauma nursing.
Now, the Court wishes to again reiterate that working in a correctional facility is not
dispositive of the issue. As United States Magistrate Judge Dale has previously found, there
is no legitimate reason to “exclude[] an otherwise qualified expert from testifying [in a
deliberate indifference case involving a prisoner] on the basis . . . that the [witness] had not
practiced medicine in a correctional setting.” Ball v. Kootenai Cty., No.
214CV00246EJLCWD, 2016 WL 4974949, at *6 (D. Idaho Sept. 16, 2016).7 However,
Fabello’s failure to—at a minimum—familiarize herself with the unique circumstances
present in correctional nursing and how those conditions inform decisions made by medical
professionals does little to “help the trier of fact [the Court in this instance] to understand
the evidence or to determine a fact in issue.” Fed. R. Evid. 702.

But see Ansu v. CoreCivic, No. CV1803851PHXDWLDMF, 2020 WL 836536, at *2 (D. Ariz. Feb. 20,
2020) (“There are strong reasons to suspect that the standard of care applicable to prison psychiatrists may
be different than the standard of care applicable to psychiatrists practicing in other settings.”). Caselaw on
the standard of care in prisons in relation to the standard of care in the community as to a particular medical
profession or in relation to a specific medical condition is—like caselaw on the qualifications of an expert
or the sufficiency of an experts’ methods—voluminous. There is no shortage of cases allowing an expert
to testify in one circumstance, but disallowing an expert from testifying in another, albeit similar,
circumstance. Ultimately, the decision to admit expert testimony is a matter of discretion for the trial court
and must be weighed against the backdrop of the specific claims at issue. Clausen v. M/V NEW CARISSA,
339 F.3d 1049, 1055 (9th Cir.2003).
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MEMORANDUM DECISION AND ORDER - 15

Second, the Court finds it likewise troubling that Fabello has no experience with the
disease at issue in this case—Ludwig’s Angina. In fact, Fabello noted in her deposition that
she was unfamiliar with the term and had to look it up. Dkt. 80-5, at 8. All parties admit
that Ludwig’s Angina is a rare disease. The fact that Ludwig’s Angina is so rare indicates
the diagnosis and treatment is, in all likelihood, not readily known to the average medical
professional. Fabello’s inexperience with this specific disease naturally calls into question
her conclusions that the way in which Defendants went about treating it was deliberately
indifferent. These two factors cut against allowing Fabello’s testimony.
Ultimately, the Court finds that Corizon’s concerns—many of which the Court
shares—go to the weight of Fabello’s testimony, not admissibility. Thus, upon review, the
Court will not strike Fabello’s testimony outright, but will give it very little weight. Fabello
has complied with the requirements of Rule 702, Daubert, and general principles regarding
expert witnesses. That said, the Court finds that because her testimony regarding the
present issues does not “rest[] on a reliable foundation” and fails to appreciate the unique
circumstances at play in this case, it does little to help the Court in its evaluation of the
Corizon Defendants’ Motion for Summary Judgment. See Primiano, 598 F.3d at 564.
Ultimately, as will be explained in greater detail below, it is apparent that the Corizon
Defendants’ actions were appropriate under the circumstances. Stephens v. Union Pac. R.R.
Co., 935 F.3d 852, 856 (9th Cir. 2019) (“Expert testimony cannot create a genuine issue of
material fact if it rests on assumptions that are not supported by evidence.”).
The Corizon Defendant’s Motion to Strike Fabello’s testimony is DENIED.

MEMORANDUM DECISION AND ORDER - 16

b. Jason Ludwig
Unlike their substantive arguments regarding Fabello’s report, the Corizon
Defendants do not object to Dr. Ludwig’s qualifications or opinions themselves, but rather
to the timing of his disclosure.8
“Rule 26 of the Federal Rules of Civil Procedure requires the parties to disclose the
identities of each expert and, for retained experts, requires that the disclosure includes the
experts’ written reports.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817,
827 (9th Cir. 2011). If a party fails to make this disclosure, “the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
In this case, Ocampo’s expert disclosure deadline was February 12, 2019 (Dkt. 49),
Defendants’ expert disclosure deadline was April 11, 2019, and Ocampo’s rebuttal expert
disclosure deadline was May 13, 2019 (Dkt. 73, at 2). Ocampo disclosed Dr. Ludwig on
May 13, 2019. Accordingly, The Corizon Defendants ask that the Court prohibit Ocampo
from using Dr. Ludwig’s opinion in their case-in-chief—now at summary judgment, and
at trial.
Ocampo does not dispute that he did not disclose Dr. Ludwig until the rebuttal
deadline, but claims that this was Corizon’s fault and that, in any event, Corizon will not
face any prejudice if Dr. Ludwig’s report is allowed at this time. Specifically, Ocampo

For context, the Court notes that Dr. Ludwig’s opinion also relates to the standard of care Ocampo
received—specifically, he disagrees with Corizon’s experts’ analysis that Ocampo received appropriate
care in this case.

8

MEMORANDUM DECISION AND ORDER - 17

claims Corizon Defendants did not fairly supplement certain answers and interrogatories
and, therefore, he was unaware of their expert opinions until they filed their reports. The
Court disagrees.
First, Corizon did not have to disclose its experts until the deadline—which by
design is after Ocampo’s deadline. Although Corizon’s failure to supplement its answers
to interrogatories until after its experts’ reports were filed does not further the purposes of
Rule 1 or heed general notions of fair play in litigation, it is disingenuous for Ocampo to
say that he did not know what Corizon’s experts’ opinions were going to be until the actual
disclosure. This is an Eight Amendment case focusing on the standard of care provided to
Ocampo. It stands to reason that Corizon Defendants’ experts would opine that the care
they provided was up to par. Receiving and reviewing those reports should have—and in
fact did—alert Ocampo to the fact that he may need someone to rebut those conclusions.
Ultimately, it seems clear that Ocampo retained Dr. Ludwig after the Corizon
Defendant’s submitted their expert reports and specifically did so to rebuff Corizon’s
experts. While allowed under the rules, Ocampo’s use of Dr. Ludwig’s opinion must be
within the appropriate parameters. Ludwig is a rebuttal expert and, therefore, cannot testify
in Ocampo’s case-in-chief—now or at trial. Critically, the late disclosure was not harmless
to Corizon Defendants as they will have no opportunity to respond to Dr. Ludwig’s
opinions.9

Again, by design, as with any rebuttal expert, Corizon would not have an opportunity to respond. But that
is precisely the point. Ocampo can present Ludwig’s testimony, but only as a rebuttal expert at trial based
upon what evidence the Corizon Defendants elect to put on.

9

MEMORANDUM DECISION AND ORDER - 18

When recently faced with a similar decision, Judge B. Lynn Winmill noted that
“Rule 56 motions are designed to test the sufficiency of the non-moving party’s case-inchief, and weed out cases which cannot be successfully presented at trial.” Ellis v. Corizon,
Inc., No. 1:15-CV-00304-BLW, 2018 WL 6268199, at *4 (D. Idaho Nov. 30, 2018).
Because a rebuttal witness “would only be allowed to testify at trial as to the contents of
his report after [plaintiff] rest his case-in-chief” it stands to reason that the Court should
not consider rebuttal expert opinion “in resolving any summary judgment motion filed in
this case.” Id. The Court agrees with this logic. Accordingly, Ludwig is limited to serving
as a rebuttal witness at trial and his expert report will not be considered by the Court when
ruling on the motions for summary judgment.
2. Corizon’s Second Motion in Limine (Dkt. 97)
On October 10, 2019, in conjunction with the filing of their reply brief—and in
direct response to Ocampo’s responsive pleadings—the Corizon Defendants filed their
second Motion in Limine. Dkt. 97. In this motion, the Corizon Defendants asks the Court
to prohibit Ocampo from relying on certain declarations and facts brought to light in his
responses to their motions for summary judgment. The objections fall into generally three
categories: (1) witness declarations, (2) Ocampo’s statement of facts, and (3) hearsay
material. The Court will address each in turn.
a. Sheldon, Young, and Bergstrom Declarations
First, the Corizon Defendants claim that in response to their discovery requests early
on in this case, Ocampo only disclosed himself, the named defendants, and various treating
medical providers as individuals who he may call to testify as witnesses at trial. Later, on
MEMORANDUM DECISION AND ORDER - 19

the eve of the close of fact discovery, Ocampo disclosed an individual named Christina
Bergstrom as a potential witness. Then, on September 6, 2019—approximately four
months after the close of discovery and one month after the dispositive motion deadline—
Ocampo supplemented his responses to disclose two new potential witnesses—Kate
Sheldon and Donald Young. One week later, Ocampo submitted declarations from
Bergstrom, Sheldon, and Young in support of his opposition to Defendant’s Motions for
Summary Judgment.
The Corizon Defendants assert that none of the three witnesses should be considered
by the Court.
Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure requires that a party must
supplement or correct its response to an interrogatory or a disclosure if the “response is
incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing.” Rule
37(c)(1) of the Federal Rules of Civil Procedure allows the court to sanction a party for
failing to properly supplement and states that if “a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.”
Ocampo did not disclose Sheldon and Young until well after fact discovery had
closed. In fact, it was during the pendency of briefing on the current motions that Sheldon
and Young were disclosed. This is not appropriate. This late disclosure left no time for the

MEMORANDUM DECISION AND ORDER - 20

Corizon Defendants to depose these witnesses, conduct any discovery relative to them, or
even consider them when filing dispositive motions.
Ocampo claims that he only recently discovered these two individuals vis-à-vis their
involvement in the Balla litigation in the District of Idaho. Be that as it may, this does not
excuse or justify the extremely late disclosure.10 Ocampo endeavors to shift the blame and
asserts that the Corizon Defendants knew about these individuals and that they (Corizon)
should have brought them to his (Ocampo’s) attention. Furthermore, Ocampo’s counsel
claims he was ethically prohibited from talking with Sheldon or Young because they were
employed by Corizon at the time. While the second assertion is accurate, Ocampo’s
attorney could have received permission from Corizon to talk with Sheldon and Young if
he knew of their existence and wanted to talk to them. But, hearkening to the first argument,
it does not appear that Ocampo was aware of these individuals or their testimony until just
recently. Further, Corizon is under no obligation to alert Ocampo to testimony or witnesses
in other litigation that (by all accounts) is only tangentially related to the issues before the
Court in this case. Ultimately, the Court finds no reasonable excuse for the late disclosure
and will strike the declarations of Sheldon and Young.11
The same cannot be said, however, for Bergstrom’s declaration. Ocampo disclosed
Bergstrom during fact discovery (albeit with only two weeks remaining in discovery) and

Ocampo did not file anything with the Court alerting it (or opposing Counsel) to this situation. The Court
is not implying doing so would have changed the outcome today, but at the very least, some type of motion
or notice—for example, to reopen discovery based on newly discovery evidence—would have been a more
appropriate avenue to address the matter as opposed to simply filing the reports in the course of summary
judgment briefing.
11
In like manner, the Court will strike certain factual assertions contained in Ocampo’s Statement of Facts
(Dkt. 92-1) that rely on the Sheldon or Young declarations—namely those identified in Dkt. 97-1, at 10.
10

MEMORANDUM DECISION AND ORDER - 21

identified (albeit in a summary fashion) what he expected she would testify about. The
Court has reviewed Bergstrom’s declaration, finds it was timely, and will give it the weight
it deems appropriate.
b. Statement of Facts
Next, the Corizon Defendants ask the Court to strike additional facts contained in
Ocampo’s Statement of Facts (Dkt. 92-1) based on Ocampo’s failure to supplement his
answers to contention interrogatories in such a way that Corizon Defendants were on notice
he would rely on certain facts to support his case. Corizon Defendants assert that Ocampo
gave generic answers to their contention interrogatories but now relies on very specific
facts and that such is unduly prejudicial.
Ocampo counters that the Corizon Defendants’ contention interrogatories were
compound and vague and that his answers were appropriate.12 Additionally, Ocampo
contends he does not need to outline every minute fact or piece of evidence he intends to
use and that doing so would invade the work product doctrine and disclose his legal strategy
and mental impressions. Both sides take this matter to the extreme.
The Court does not support “boiler-plate” requests or “boiler-plate” responses.
Notions of fair play in litigation, as well as the Court and Counsel’s directive to “secure
the just, speedy, and inexpensive determination of every action and proceeding,” Fed. R.
Civ. P. 1, mandate that parties tailor their requests and their answers so that the other side
is fairly apprised of any claim or defense. Here, the Court has reviewed the interrogatories,

In fact, Ocampo goes so far as to “object” to Corizon Defendants’ contention interrogatories. The time
to formally object, however, has long since come and gone. See Fed. R. Civ. P. 33(b)(4).

12

MEMORANDUM DECISION AND ORDER - 22

the answers, and the relied upon facts.
As noted, there are some requests and answers that are wanting. Additionally, there
do appear to be some gaps or “jumps” from the records before the Court and Ocampo’s
stated facts. However, the parties in this case have undergone extensive discovery. The
Court finds it hard to believe the Corizon Defendants were not at least on notice of the
general facts Ocampo intended to assert—even if they were unaware of the specific facts
he would actually use to support his contentions. In short, the Court will not strike the facts
the Corizon Defendant’s wish excised but will give them the weight it deems appropriate.
c. Hearsay
Finally, the Corizon Defendants assert that Ocampo relies on inadmissible hearsay
statements in Paragraph 43 of his Statement of Facts in stating: “When NP Collins brought
the issue up with HAS Fran Palazzo he told her that the situation would be taken care of,
but that Corizon needed ‘warm bodies.’” Dkt. 92-1, at 14.13 In support of this claim,
Ocampo cites to a memo prepared by NICI Warden Terema Carlin. This memo appears to
be a transcription of something that NP Collins told Warden Carlin.
The Corizon Defendants assert this constitutes inadmissible hearsay and must be
stricken. Under the circumstances, the Court must agree.
Hearsay is defined as a “statement, other than one made by the declarant while

This situation is in reference to disagreements between certain staff members regarding the care of
inmates—not necessarily Ocampo. Fran Palazzo is Corizon’s Health Services Administrator. The general
assertions here appear to be that there were disagreements between clinical staff, NICI staff, Corizon staff
etc., and that this resulted in some hostility. While Ocampo uses this hostility to bolster his general
assertions that the Corizon Defendants were not supervising their employees, the main purpose of this
paragraph in his statement of facts seems to be related to his contention that Corizon staffed ill-equipped
people (i.e. “warm bodies”) at NICI.
13

MEMORANDUM DECISION AND ORDER - 23

testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c).
Here, the memo is a written recording by Warden Carlin of something NP Collins
told her (Carlin) that Fran Palazzo told her (Collins). In other words, there are multiple
levels of hearsay here and no exception appears to apply.
Ocampo argues that the statements are not hearsay, but are admissible under the
“party opponent” exception. Fed. R. Evid. 801(d)(2). Ocampo further suggests that Warden
Carlin could be called to testify at trial to quell any fears the Court might have about her
statements.
As to the former claim, the Court notes that Warden Carlin herself is not a party to
this litigation and thus not a quintessential “party opponent.” Whether Warden Carlin
would qualify as such vis-à-vis her relationship with other named defendants might be a
closer call. Even then, however, that only solves the first layer of the situation.14
The problem with the later assertion is more troublesome. Warden Carlin has not
been listed as a witness in the present case, she was not deposed by either party, and, at this
point, likely cannot testify at trial. There is simply no foundation for her statements. The
Ninth Circuit has been clear that a “trial court can only consider admissible evidence in
ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764,
773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854
F.2d 1179, 1181 (9th Cir. 1988)). “Authentication is a condition precedent to admissibility,

Additionally, the Court notes that NP Collins is a named party in this case, but Fran Palazzo is not. This
further obscures whether the statements could be considered to have been made by a “party opponent.”

14

MEMORANDUM DECISION AND ORDER - 24

and this condition is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Id. (quoting 7 Fed. R. Evid. 901(a)) (internal
quotation marks omitted) (emphasis added). The Ninth Circuit has “repeatedly held that
unauthenticated documents cannot be considered in a motion for summary judgment.” Id.
Because Ocampo has not laid the proper foundation for Warden Carlin’s hearsay
memo and it is unauthenticated, the memo is inadmissible at trial, and, therefore, cannot
be considered at summary judgment. The Corizon Defendants’ Motion in Limine is
GRANTED in this regard.
3. Analysis of the Corizon Defendants’ Motion for Summary Judgment
Having dealt with the various evidentiary motions, the Court now turns to Corizon
Defendants’ substantive arguments in support of their motion for summary judgment.
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 (1994) (internal
quotation marks omitted). An Eighth Amendment claim requires a prisoner 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
MEMORANDUM DECISION AND ORDER - 25

indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
As for the objective standard, 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 (1992).
As to the subjective standard, a prison medical provider acts with “deliberate
indifference . . . only if the [provider] 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)
(internal quotations and citations omitted). 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).
Ultimately, upon an exhaustive review of the record in this case, the Court cannot
find as a matter of law that Corizon Defendants were deliberately indifferent to Ocampo’s
serious medical needs. Summary judgment is, therefore, appropriate.
As a threshold matter, the Court must discuss vicarious liability. It will then address
Ocampo’s care and treatment as well as his interactions with specific Corizon Defendants.
It is a long-standing principle that there is no vicarious liability in § 1983 actions.
See Monell v. Dept. of Social Services, 436 U.S. 658 (1978). To assert a § 1983 claim
against a private entity—such as Corizon—a Plaintiff must meet the test articulated in
Monell which requires that the Plaintiff show: (1) the plaintiff was deprived of a
constitutional right; (2) the municipality or entity had a policy or custom; (3) the policy or
custom amounted to deliberate indifference to the plaintiff's constitutional right; and (4)
MEMORANDUM DECISION AND ORDER - 26

the policy or custom was the moving force behind the constitutional violation. Mabe v. San
Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir. 2001).
For an entity to be found liable under Monell, the unwritten policy or custom must
be so “persistent and widespread” that it constitutes a “permanent and well settled”
practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–
168 (1970)). “Liability for improper custom may not be predicated on isolated or sporadic
incidents; it must be founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method of carrying out policy.”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996).
In this case, Ocampo calls into question numerous practices of the Corizon
Defendants. For example, Ocampo asserts that Defendants had policies or customs of
“understaffing” its correctional medical units because it needed “warm bodies”; of
allowing certain individuals with limited medical skill to exceed their expertise; of
“scrubbing” or falsifying records; of using patients’ vital signs as pretext for not seeking
necessary medical care; of not following its own protocols in filling out forms and
consulting specific medical personnel; and of generally delaying and denying medical care.
An overarching problem with Ocampo’s Monell claim, however, is that many of the
assertions are based on his opinion of what is correct and/or rely on misunderstandings of
Corizon’s policies.
For example, Ocampo takes issue with Corizon staffing its medical units with
CMS’s who are not licensed medical professionals. While CMS’s are not “licensed,” per
Idaho law they are allowed to practice limited medical and nurse care under a physician’s
MEMORANDUM DECISION AND ORDER - 27

supervision—similar to a medical assistant. See Idaho Code § 54-1804(1)(h); IDAPA
23.01.01.490. Corizon’s policies and procedures outline that medical decisions must be
made by qualified health care professionals and that qualified health care professions
include “physicians, physicians assistants, nurses, nurse practitioners, dentists, mental
health professionals, and others who by virtue of their education, credentials, and
experience are permitted by law to evaluate and care for patients.” Dkt. 92-3, at 2. Per
Corizon policy—and by law—CMS’s are allowed to provide inmates with medical care.
In a similar vein, there is no merit to the supposition that Corizon employs ill-qualified or
unprofessional medical staff because it needed warm bodies to fill employment slots.15
As another example, Ocampo claims that Corizon has a “normal vital signs” policy
whereby medical staff use an inmate’s vital signs as justification for denying timely and
accurate treatment. This allegation is without support in the record. To be sure, Defendants
review and explain at length Ocampo’s vital signs, but not as an excuse for their behavior,
but rather as an explanation for the course of treatment they developed and provided for
Ocampo. As RN Gause explains, reviewing and tracking vital signs is part of the medical
care all patients receive, and such a procedure was followed in this case. See generally Dkt.
83-14. Interestingly, it was in spite of Ocampo’s normal vital signs in this case that medical
professionals eventually determined it was best to transport Ocampo to the hospital for
further care.
Finally, Ocampo spends a great deal of time discussing Corizon’s policy requiring

As was just discussed, Ocampo’s evidence in support of this assertion (the Warden Carlin document) is
inadmissible.

15

MEMORANDUM DECISION AND ORDER - 28

medical personnel to fill out Nursing Encounter Tools (“NETs”) each time they interact
with an inmate for a medical issue. NET’s are written instructions or guidelines that specify
steps to be taken in determining a patient’s health status and treatment. The overarching
purpose of a NET is to create a clear record of a patient’s condition. NET’s also outline
how to escalate a situation to other medical professionals—should such become necessary.
The problem, however, is that Ocampo cannot cite to anything that actually supports his
claim—i.e. he cannot point the Court to anything that actually mandates the use of NETs.
Corizon’s policies explain the functionality and use of NETs (Dkt. 92-4, at 12-13) but do
not specifically require their use in all circumstances. To be sure, there is evidence in the
record that employees were, from time to time, reprimanded for not using NETs, or other
tools, to track an inmate’s medical progress. Critically, however, there is nothing
supporting the idea that a NET must be used each time an inmate is seen for medical needs
and/or that the failure to do so is a violation of any Corizon policy or procedure.
In short, Ocampo is trying to make this case into a Monell case, when it simply is
not. There is no pervasive, persistent, or widespread policy that deprived him—or any other
inmate—of any constitutional rights. Ocampo’s Monell claims cannot withstand scrutiny
because there is no evidence to support such a finding.
The Court now turns to Ocampo’s specific treatment and the actions of the
individual Corizon Defendants. None of the Defendants in this case contest Ocampo’s
conclusion that his medical condition was serious—the first prong of the Court’s Eighth
Amendment inquiry. They simply dispute Ocampo’s assertions that their actions were
deliberately indifferent to Ocampo’s serious medical need—the second prong of the test.
MEMORANDUM DECISION AND ORDER - 29

Accordingly, the Court focuses its discussion solely on the second, subjective standard:
Defendants’ behavior.
As detailed above in the background section, over the course of approximately four
days, no less than five medical staff attended to Ocampo,16 on no less than seven different
occasions. During the course of Ocampo’s treatment, these individuals utilized the
information available to them at the time, and suggested appropriate treatment—based on
their education, experience, and expertise. At no time was it apparent that there was an
emergent situation with Ocampo. His vitals were essentially normal up through the time of
his hospitalization and he was being treated with a strong regimen of antibiotics—at the
recommendation of multiple medical professionals. Throughout Ocampo’s treatment at
NICI, there were no indications that Ocampo was at a “substantial risk of serious harm.”
Toguchi, 391 F.3d at 1057. When it became evident, however (to RN Shriver and NP
Collins) that Ocampo needed additional treatment beyond what could be provided by the
prison medical staff, they immediately transferred Ocampo to a local hospital.
Corizon has presented the declarations of two experts—one of whom is a dentist,
the other, a registered nurse who has worked in the correctional health system for
decades—affirming that the actions taken by Corizon medical staff, including
communicating with licensed medical staff, properly prescribing antibiotics when Ocampo
first showed signs of a potential infection, authorizing stronger antibiotics the next day
when Dr. Schaff was consulted, and appropriately waiting for the antibiotics to kick in,

Gentry, Dunning, Schmitt, Shriver, and Bolin. Additionally, Dr. Schaff and NP Collins were consulted
—albeit they were not physically present.
16

MEMORANDUM DECISION AND ORDER - 30

were all understandable and proper under the circumstances. Dkt. 83-12; Dkt. 83-14.
The Court notes that by all accounts Ocampo’s treatment involved a developing
situation and that not all diagnoses made by staff were correct. For instance, while
providers were incorrect in diagnosing Ocampo with strep throat, they did appropriately
identify Ocampo had an infection. As it turns out, they were mistaken as to the extent of
the infection, but even assuming arguendo that all the medical professionals had completely
misdiagnosed Ocampo’s condition, such cannot support an Eighth Amendment claim. See
Estelle, 429 U.S. at 107 (finding that decisions to take (or not take) certain medical actions
do not represent cruel and unusual punishment and that mere negligence—or even medical
malpractice—regarding a medical diagnosis cannot support an Eighth Amendment claim).
To turn a phrase, Ocampo is claiming that medical treatment delayed is medical
treatment denied and while it is true that a prisoner can establish deliberate indifference by
showing that a delay in treatment was “medically unacceptable,” see, e.g., Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir.1996), there is nothing in the record to indicate any of
the defendants here “den[ied], delay[ed], or intentionally interfere[d] with [Ocampo’s]
medical treatment.” Id.
To the contrary, medical staff in this case diagnosed Ocampo’s medical issue,
prescribed appropriate medications, waited and observed, contacted other medical
professionals, reviewed and undertook further diagnosis, and ultimately sent Ocampo to a
hospital when Ocampo’s infection continued to progress. The fact that such efforts were
unhelpful—now knowing in hindsight that Ocampo had Ludwig’s Angina—does not mean
that they were medically unacceptable or deliberately indifferent. See e.g., Ross v. Ortiz,
MEMORANDUM DECISION AND ORDER - 31

No. EDCV 10-1606-SJO JPR, 2013 WL 3923487, at *12 (C.D. Cal. July 29, 2013), aff’d,
587 F. App’x 434 (9th Cir. 2014) (finding the denial of immediate access to a specialist in
a nonemergency situation does not amount to deliberate indifference); Heidtke v. Corr.
Corp. of Am., 489 F. App’x 275, 277, 280–81 (10th Cir. 2012) (finding a doctor was not
deliberately indifferent for failing to detect particularized injury because he provided
treatment consistent with symptoms and actively monitored inmate’s condition).
The Court next briefly address the individual Corizon Defendants’ actions.
a. LPN Bolin
Ocampo alleges that LPN Bolin was deliberately indifferent to his medical needs
because he failed to use a NET on the evening of May 2, 2016 (the only time LPN Bolin
interacted with Ocampo). As already explained, however, LPN Bolin was not required by
Corizon’s policies to fill out a NET.17 Rather, he had been tasked with checking on Ocampo
after he was put on medical watch. Bolin’s limited interactions with Ocampo do not give
rise to a claim of deliberate indifference.
b. LPN Schmitt
Ocampo argues that LPN Schmitt was deliberately indifferent to his medical needs
because she did not use a NET when evaluating him on May 2 or May 3. Again, Ocampo
is incorrect that there is a “written protocol” mandating the use of NETs.

The Court notes that this type of argument, however, is not wholly without foundation. Even if Corizon
did not have a policy of requiring NETs, this non-policy could, nonetheless, still support a Monell claim if
Ocampo could present facts suggesting that NETs should have been required for constitutionally adequate
care. See e.g., City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) (finding a “policy” of not adequately
training prison employees to recognize a detainee’s medical needs could support a Monell claim). That said,
Ocampo has not made such a showing in this case.
17

MEMORANDUM DECISION AND ORDER - 32

Additionally, Ocampo contends that LPN Schmitt was deliberately indifferent when
she called Dr. Schaff without fully examining him, alleging that had she done so, Dr. Schaff
would have had a “full clinical picture” and might have recognized the Ludwig’s Angina
sooner. While this is a possibility, it is just that: possible, not settled. Based upon the
information they had at the time, LPN Schmitt and Dr. Schaff made a reasonable decision.
Corizon’s dental expert has affirmed that this decision was acceptable under the
circumstances and states his belief that while the antibiotics did not ultimately stop the
infection, they very likely “slowed the progress and the outcomes may have been worse
had they not been used.” Dkt. 83-12, at 4-5. In short, Ocampo cannot argue that LPN
Schmitt’s call to Dr. Schaff, in accordance with Corizon policy, constituted deliberate
indifference—even if the course of treatment turned out to be insufficient for the ultimate
diagnosis.
c. NP Collins
Finally, Ocampo claims that NP Collins—whom he never actually saw in person—
acted with deliberate indifference towards him. First, Ocampo claims that because other
people did not do their jobs (i.e. because others failed to refer him to NP Collins—the
qualified medical provider) she was unable to provide him with adequate care. Second,
Ocampo claims that when NP Collins was contacted, her actions were so delayed that they
constitute deliberate indifference.
Ocampo’s first assertion is difficult to swallow. As has been noted, each of the
Defendants here met Corizon’s definition of qualified medical provider and were
authorized to treat Ocampo. It is also difficult to blame NP Collins’ inaction on other
MEMORANDUM DECISION AND ORDER - 33

individuals’ inaction. Even taking Ocampo’s claims as true, NP Collins would not be liable
for another employee’s failure to contact her.
Second, Ocampo’s assertion that NP Collins delayed treatment seems to rest on the
fact that it took some time for her to get back to RN Shriver about whether to transport
Ocampo to the hospital or not. While there was a slight delay—due to cellular service
availability—once NP Collins received a phone call from RN Shriver, she requested a
picture of Ocampo to determine whether he should be transported to the hospital, and then
ultimately authorized Ocampo to be taken to the emergency room. While this process took
some time, it was part and parcel to diagnosing, analyzing, and determining what was best
for Ocampo. Ocampo cannot point to any objective facts indicating NP Collins was
deliberately indifferent to his needs and the Court finds her behavior was appropriate.
In summary, Ocampo has not presented any evidence that Corizon Defendants
“[knew or disregarded] an excessive risk to [his] health and safety.” Gibson, 290 F.3d at
1187. At most, he has pointed to shortcomings or minor delays within the scope of his
treatment, but even assuming these actions constituted negligence (or even medical
malpractice) such is insufficient to support a cause of action under the Eighth Amendment.
Broughton, 622 F.2d at 460.
Upon review, and for the reasons set forth above, the Court finds no disputed facts
that could be resolved in Ocampo’s favor. Accordingly, the Court GRANTS the Corizon
Defendants’ Motion for Summary Judgment.
B. Dunning’s Motion for Summary Judgment (Dkt. 79)
The Court begins by addressing CMS Dunning’s Motion for Summary Judgment
MEMORANDUM DECISION AND ORDER - 34

(Dkt. 79) and will then analyze his Motion to Strike (Dkt. 101).
Ocampo contends that Dunning was deliberately indifferent to his serious medical
needs because he failed to refer Ocampo to a qualified medical provider and because he
practiced medicine outside of the scope of his CMS license. The Court will address each
contention in turn.
1. Deliberate Indifference in Providing Treatment to Ocampo
As noted, an Eighth Amendment claim requires a prisoner 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) (overruled on other grounds by Peralta v.
Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014)).
Exhausting the facts, the record shows that Dunning’s interactions with Ocampo
were limited to two separate occasions: the morning of May 1, 2016, and a follow up the
same day at noon. After seeing Ocampo in the morning, Dunning referred Ocampo to
“nurse/corizon” for a follow up, and after seeing Ocampo again in the afternoon, Dunning
referred Ocampo to another qualified medical provider. At no point during Ocampo’s care
did Dunning portray deliberate indifference to Ocampo’s need for further medical
treatment. He instead repeatedly referred Ocampo to a qualified medical provider for
further evaluation. Ocampo’s first contention is without merit.
At the time he treated Ocampo, Dunning had been a CMS since 2004, and had 12
years of prior medical experience, training, and testing in various clinical skill disciplines
pertinent to his role as a CMS. On May 1, 2016, Dunning utilized his prior experience and
MEMORANDUM DECISION AND ORDER - 35

acted within the scope of his duties to make a reasonable assessment of Ocampo’s medical
needs. Specifically, Dunning evaluated Ocampo, diagnosed the issue as strep throat, and
administered antibiotics.
Dunning provided appropriate medical care to Ocampo, and while Ocampo argues
(now) that what Dunning did was not the best course of action, Dunning was not acting
with deliberate indifference at the time. To demonstrate deliberate indifference, Ocampo
must show Dunning purposefully withheld a qualified medical provider from Ocampo. Jett
v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (finding a plaintiff must show a purposeful
act or failure to respond to his pain or possible medical need to establish deliberate
indifference). The facts show Dunning assessed Ocampo, followed up, and referred
Ocampo to a nurse for additional treatment. That Dunning was ultimately incorrect as to
Ocampo’s medical diagnosis (i.e. that he was not, in fact, suffering from strep throat) does
not change the Court’s analysis. “Mere negligence in diagnosing or treating a medical
condition, without more, does not violate a prisoner’s Eighth Amendment rights.”
Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Given Ocampo’s
symptoms and recent exposure to strep throat by a fellow inmate, the Court cannot find
Dunning was even negligent in incorrectly diagnosing Ocampo’s condition.
Ocampo also argues Dunning exhibited deliberate indifference by telling Ocampo
to “cowboy up” in response to Ocampo’s complaint of significant pain. Ocampo argues
this statement was similar to Snow v. McDaniel, where a physician’s assistant made a
comment to the effect that he was “gonna let [the patient] suffer” in response to the patient’s
inquiry about adequate pain medication. 681 F.3d at 990. The Court in Snow determined
MEMORANDUM DECISION AND ORDER - 36

that the physician’s comment was a “textbook example of the state of mind required to
violate the Eighth Amendment.” Id. The Court finds the present situation distinguishable.
The context of Dunning’s statement must be considered. While arguably a poor
choice of words and a bit flamboyant, Dunning’s comment was frankly appropriate,
considering the fact that when he said these words, he had just given Ocampo antibiotics,
sincerely believed Ocampo had strep throat, and was simply waiting for the medications to
take effect—which required waiting out the pain for a time. Ultimately, the facts do not
show that Dunning was specifically trying to withhold a qualified medical provider from
Ocampo or was purposely letting him suffer.
The Court finds that Dunning provided reasonable and appropriate treatment based
on the information Ocampo provided, Ocampo’s symptoms, and in compliance with
Corizon’s policies. Further, Dunning was not deliberately indifferent to Ocampo’s serious
medical need by withholding a medical provider. Dunning himself was a medical provider,
and he also twice referred Ocampo to others with more experience than he possessed.
2. Scope of Practice as a CMS
Ocampo next alleges that Dunning was deliberately indifferent to his serious
medical needs because Dunning delayed referring him to a qualified medical professional
by practicing medicine without a license. Ocampo further argues that a CMS is not a
licensed or qualified medical professional.
As already noted, while CMS’s are not “licensed,” they are allowed to practice
limited medical and nursing care under a physician’s supervision per Idaho law. See Idaho

MEMORANDUM DECISION AND ORDER - 37

Code § 54-1804(1)(h); IDAPA 23.01.01.490. Per Corizon policy—and by law—CMS’s
are allowed to provide inmates with medical care.
Corizon’s policy further explains that each CMS has a supervising physician that
establishes the scope of the CMS’s practice. Dkt. 92-5, at 3. The scope is defined and
documented in a “Scope of Practice and Skills Proficiency Checklist” and is based on the
results of a skills examination, the requirements of the job description, and the knowledge
and experience of the CMS. Id.
To illustrate Dunning’s shortcomings, Ocampo references Rosati v. Igbinoso, and
the Ninth Circuit’s holding that “access to the medical staff has no meaning if the medical
staff is not competent to deal with the prisoners’ problems.” 791 F.3d 1037, 1040 (9th Cir.
2015). While this is assuredly a correct principle, per Corizon’s policy—and under Idaho
law—Dunning was competent and authorized to provide Ocampo with medical care.
Again, Dunning had many years of experience in the medical field and specifically, on
May 1, 2016, provided inmate Ocampo with reasonable and lawful medical care.
Delving deeper into Corizon’s policy, the Court notes that in 2016, Clayton Bunt,
MD, signed and acknowledged Dunning’s proficiencies in Dunning’s Annual Proficiency
Checklist. These proficiencies were vast, and included, but were not limited to, “Head to
toe assessments, focused assessments, and complete vital sign assessments.” Dkt. 92-5, at
9. Dunning provided just that to Ocampo on May 1, 2016: a reasonable medical assessment
in line with the scope of his duties.
In summary, to demonstrate deliberate indifference, the facts must be sufficient to
indicate Dunning had a culpable state of mind. Here, the facts do not support a finding that
MEMORANDUM DECISION AND ORDER - 38

Dunning acted with deliberate indifference. In fact, they show he provided reasonable
medical care to Ocampo based upon the information Ocampo provided and under the
authority given to him by Idaho law and under Corizon’s policies.
Further, unlike the plaintiff in Rosati (regarding Dunning’s incompetence) the Court
finds that based on Dunning’s experience, his signed annual proficiency checklist, and the
actual care he provided to Ocampo on May 1, 2016, Ocampo did in fact have access to
competent medical staff and Dunning provided appropriate care to Ocampo in accordance
with Corizon’s policies and the scope of his job responsibilities.
As a result, the Court must GRANT Dunning’s Motion for Summary Judgment.
3. Dunning’s Motion to Strike (Dkt. 101).
Finally, Dunning asks the Court to strike any references made by Ocampo to his
employee file, specifically his alleged “character” and any acts of unprofessional conduct
toward corrections staff, medical providers, and patients, as well as any references to
disciplinary action or his eventual termination from Corizon. Dkt. 101.
Dunning argues that all references made by Ocampo regarding his character are
inadmissible and do not show deliberate indifference to Ocampo’s health and safety. The
Court will analyze the alleged instances of Dunning’s conduct and their admissibility
pursuant to Federal Rules of Evidence 401, 402, 403, and 404.
a. Admissibility of Character Evidence
Ocampo contends that Dunning’s unprofessional conduct, disciplinary actions, and
termination from Corizon are relevant to show that he intentionally acted with deliberate
indifference

to

Ocampo’s

serious

medical

MEMORANDUM DECISION AND ORDER - 39

needs

on

May

1,

2016.

Under Rule 401, evidence is relevant if “it has any tendency” to make a “fact of
consequence in determining the action” any “more or less probable than it would be
without evidence.” Irrelevant evidence is not admissible. Fed. R. Evid. 402. When further
considering whether facts of relevancy are appropriate, Rule 403 provides that relevant
evidence may be excluded if its value is substantially outweighed by a danger of unfair
prejudice, confusing or misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. Fed. R. Evid. 403.
Ocampo argues that Dunning’s work history, unprofessional conduct, disciplinary
action, and termination are all relevant to show his deliberate indifference to Ocampo’s
serious medical need. The Court disagrees. It is undisputed that Dunning had instances of
unprofessional conduct in the workplace. The dispute, however, is whether Dunning’s
comments, actions, and unprofessional conduct in the past have any tendency to make more
probable than not the argument that he deliberately disregarded Ocampo’s serious medical
needs on May 1, 2016. Ocampo’s references to Dunning’s rude comments about past
patients and frustrations with NP Collins are unrelated to the care Dunning provided to
Ocampo. Further, allowing evidence of Dunning’s prior actions do not make it more
probable that he acted with deliberate indifference to Ocampo’s serious medical needs
during the course and scope of his treatment.
It is undisputed that Dunning saw Ocampo the morning of May 1, 2016, and again
at noon, and that on both occasions he assessed Ocampo and spent considerable effort
trying to help Ocampo with his pain. When applying Rule 401, relevant facts would be any
facts that might show Dunning was deliberately indifferent to Ocampo’s serious medical
MEMORANDUM DECISION AND ORDER - 40

needs on the day he treated Ocampo. The references made by Ocampo regarding Dunning’s
past conduct do not reveal that Dunning knew or had reason to know of an excessive risk
to Ocampo’s health and purposefully chose to disregard such risks.
Even if these other acts were relevant, under Rule 403, they may be excluded due
to unfair prejudice, confusion, or the prospect of misleading a jury. The Court agrees with
Dunning that the probative value of his past unprofessional acts is outweighed by the
danger of unfair prejudice or misleading a jury.
Finally, Federal Rule of Evidence 404(a)(1) provides “[e]vidence of a person’s
character or character trait is not admissible to prove that on a particular occasion the
person acted in accordance with their character or trait.” The primary purpose of Rule 404
is the fundamental notion that cases should be decided on the facts concerning the events
at issue rather than the jury’s frame of mind toward a party’s character.
Although some of Dunning’s comments—for example about a mentally ill inmate
or his frustrations with NP Collins—are undoubtedly unprofessional, they should not be
used to theorize how Dunning acted on May 1, 2016, in relation to Ocampo’s serious
medical needs. In accordance with Rule 404, references made by Ocampo to undermine
Dunning’s character are not admissible to prove he acted with a deliberate indifference to
Ocampo’s health and safety.
The Court concludes that permitting the trier of fact to punish a person because of
their respective character is specifically what Rule 404 seeks to protect. Accordingly, the
references Ocampo made regarding Dunning’s unprofessional conduct, disciplinary
actions, or termination cannot be connected to the care provided to Ocampo on May 1,
MEMORANDUM DECISION AND ORDER - 41

2016, nor do the references show Dunning was deliberately indifferent to Ocampo’s serious
medical needs. These statements will be STRICKEN.
b. Admissibility of Crimes, Wrongs, and Other Acts
Ocampo claims that Dunning’s history of unprofessional conduct, disciplinary
actions, and termination show his deliberate indifference to Ocampo’s serious medical
needs. In particular, Ocampo points to a situation in December of 2015 where Dunning
disagreed with NP Collins regarding proper protocols about obtaining a culture from an
inmate who she suspected may have had MRSA. Apparently, Dunning got mad, hung up
on NP Collins, and then called a different prison and spoke antagonistically about NP
Collins. A similar situation occurred in January of 2017 when Warden Krieger spoke to
Dunning regarding a mentally ill inmate, and, Dunning used less than favorable words in
reference to the inmate.
Under Rule 404(b)(1), “evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” However, “[t]his evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). For the evidence
to be admissible, the Court must determine whether the other act “evidence is probative of
a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686
(1988). In other words, here, the Court must find the evidence of Dunning’s unprofessional
conduct, disciplinary actions, and termination from Corizon are probative to prove

MEMORANDUM DECISION AND ORDER - 42

Dunning’s intent, motive, or plan to be deliberately indifferent to Ocampo’s serious
medical needs on May 1, 2016.
Upon review, the Court concludes that absent an applicable exception, the evidence
provided by Ocampo to portray Dunning’s character is not admissible. The exceptions all
focus on whether the evidence would be probative of a material issue other than character.
Here, the material issue is whether Dunning had the state of mind of deliberate indifference
toward Ocampo’s serious medical need on the day of May 1, 2016.
Dunning’s conversation with a correction officer in January of 2017 regarding a
mentally ill inmate, and the December 2015 incident where Dunning disagreed with NP
Collins about protocol for testing an inmate for MRSA infection, are distressing. That
aside, Dunning’s past actions cannot be broadened to the point of assuming his state of
mind on May 1, 2016. The Court agrees Dunning had moments where his actions were
unprofessional. The evidence of those actions, however, do not prove Ocampo’s theories
that it was Dunning’s intent, motive, or plan to deliberately ignore Ocampo’s serious
medical needs on May 1, 2016.
Even if the acts were relevant to prove Dunning’s intent on May 1, 2016, as already
explained, such acts could nonetheless be excluded under Rule 403. Similar to the Court’s
holding above, the probative value of Dunning’s past unprofessional acts, disciplinary
actions, and termination from Corizon are outweighed by the danger of unfair prejudice,
confusion, or misleading a jury. These comments, too, will be STRICKEN.
In sum, the Court finds that Dunning’s historical acts do not prove Ocampo’s theory
that he was deliberately indifferent to Ocampo’s serious medical needs on May 1, 2016.
MEMORANDUM DECISION AND ORDER - 43

For the foregoing reasons, and pursuant to Fed. R. Evid. 401, 402, 403, and 404, the Court
GRANTS Dunning’s Motion to Strike.
C. Crowl’s Motion for Summary Judgment
1. Introduction
Ocampo’s allegations involving Lt. Brian Crowl revolve around a short telephone
conversation between Crowl and a female correctional officer18 who relayed Ocampo’s
medical situation to Crowl and back. Specifically, the motion for summary judgement
focuses on Ocampo’s request that Crowl move beyond the directives of on-site healthcare
professionals in order to provide him care for the pain he was experiencing after his tooth
extraction surgery. Upon relay of information about Ocampo’s condition from the officer,
Crowl advised the officer to tell Ocampo that ibuprofen was available but that no
emergency transportation to outside medical services would take place at that time.
Based on this interaction facilitated by the officer, Ocampo has raised multiple
negligence-based claims under state and federal law against Crowl. Crowl seeks summary
judgment on such claims. Additionally, a motion to strike is at issue based on the potential
lack of personal knowledge and hearsay involved in the conversation between Crowl, the
officer, and Ocampo.

In briefing (Dkt. 104) and at oral argument, Ocampo indicated that the parties are relatively certain that
this unnamed officer is an individual named “Officer Donna Mader.” Because the Court does not know this
individual’s full name, and because it has not been conclusively established that Mader was the officer who
spoke to Crowl over the phone, the Court will simply refer to this person as the unknown officer or simply
“the officer.” The person’s identity, or lack thereof, is not dispositive of any facts at issue with respect to
Crowl’s Motion for Summary Judgment.
18

MEMORANDUM DECISION AND ORDER - 44

2. Analysis
a. Motion for Summary Judgment
Ocampo bases his negligence claims against Crowl in this case on two main
premises: 1) that Crowl’s acts or omissions caused Ocampo excess pain, and 2) that Crowl
failed to properly train and supervise his staff. Dkt. 34, at 15-17. Crowl addressed both
assertions in his motion for summary judgment (Dkt. 82), however Ocampo only addressed
the acts or omissions negligence claim in his response (Dkt. 90). As Ocampo declined to
defend his claim of negligent supervision and training on summary judgment, summary
judgment is appropriate on that claim. See Fifer v. United States, 649 F. App’x 426, 428
(9th Cir. 2016) (prisoner waived any state negligence claim against prison officials by
failing to raise it in opposition to the defendant’s motion for summary judgment).
In order to establish a claim of negligence against a governmental entity, Ocampo
must meet the three-part test outlined in Rees v. State, Dept. of Health & Welfare, 137 P.3d
397, 401–02 (2006). First, Ocampo must demonstrate an applicable Idaho law that provides
recovery for the alleged tort; next, that no exception to liability under the Idaho Tort Claims
Act (“ITCS”) applies; and finally, he must prove that he is entitled to recover based on the
merits of his negligence claim. Sherer v. Pocatello Sch. Dist. No. 25, 148 P.3d 1232, 1236
(2006). The parties agree that Idaho Tort Claims Act provides a cause of action for
negligence, however they disagree as to whether an exception applies to shield Crowl from
liability. Idaho Code provides:
A governmental entity and its employees while acting within the course and
scope of their employment and without malice or criminal intent and without

MEMORANDUM DECISION AND ORDER - 45

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.
Idaho Code § 6-904B(5).
The parties focus on whether Crowl’s acts or omissions constitute gross negligence
or reckless conduct that would remove his governmental entity liability shield. Under Idaho
Code section 6–904B, a showing of gross negligence entails “evidence showing not only
the breach of an obvious duty of care, but also showing deliberate indifference to the
harmful consequences to others.” See S. Griffin Const., Inc. v. City of Lewiston, 16 P.3d
278, 286 (2000). In this case, therefore, Ocampo must show that he had a substantial risk
of serious harm, that Crowl knew of this substantial risk, and that Crowl intentionally
disregarded the risk. See Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir.
2002). If no duty was present, or if Ocampo fails to show deliberate indifference as defined
above, the negligence claim fails and Crowl is not liable.
Upon a full review of the record, it is clear that no reasonable jury could find
Crowl’s acts or omissions meet the rigorous standard of deliberate indifference to
Ocampo’s medical needs. First and foremost, Ocampo testified that he did not believe
Crowl intentionally caused him any harm—contradicting his own claim that Crowl
deliberately acted to cause him harm. Dkt. 82-3, at 20. Second, Crowl’s suggestion that
ibuprofen was available to Ocampo demonstrates—even if just to a small degree—his
efforts to alleviate Ocampo’s pain. Moreover, the suggestion of a mild pain medication

MEMORANDUM DECISION AND ORDER - 46

does not show that Crowl was aware of, and indifferent to, any substantial risk of harming
Ocampo. Instead, it illustrates that Crowl attempted to alleviate Ocampo’s pain, even if
such attempt was ultimately ineffective. Thus, the Court finds that Crowl is entitled to
immunity under Idaho Code section 6-904B.
Even assuming, arguendo, that Crowl is not entitled to immunity, the facts of the
case do not lend itself to a finding of indifference. For example, in Lolli v. County of
Orange, the Court found the defendant was deliberately indifferent to a prisoner plaintiff’s
medical needs because the “risk was obvious” based on the “obviously sickly appearance”
of the prisoner’s behavior. 351 F.3d 410, 421 (2003). Crowl, not having actually seen
Ocampo in this case, did not have the ability to make emergency determinations based on
Ocampo’s appearance and behavior as did the defendant in Lolli.
To be sure, Crowl owed a general duty of care to Ocampo, however, the
circumstances in this case do not illustrate that Crowl breached that duty. While IDOC’s
Standard Operating Procedures provide that emergency dental health care provisions
include “elimination of infection” and “relief of pain,” such provisions are premised on a
dental emergency. Dkt. 90. Ocampo was seen by on-site medical staff shortly after
requesting that Crowl send Ocampo out for emergency medical services. Those individuals
determined Ocampo was not experiencing a dental emergency. Dkt. 82-3. Crowl is not a
medical professional and was entitled to rely on the medical professionals at the facility
and their assessment of Ocampo. See McGee v. Adams, 721 F.3d 474, 483. (7th Cir. 2013).
Further, while Crowl does have authority to send prisoners out of the facility for
healthcare in emergency circumstances such as a prisoner not breathing, loss of blood,
MEMORANDUM DECISION AND ORDER - 47

imminent danger, or life-threatening harm, none of these conditions were present in this
case. Simply put, Crowl had no credible information at his disposal (besides Ocampo’s
personal statements) that would have required him to override the on-site health care
professionals’ assessment of Ocampo’s condition. Dkt. 82. Though the emergency list
above is not exhaustive, it was not unreasonable for Crowl to rely on such bright line
standards, particularly where he also relied upon assessments made by the on-site medical
professionals who had tended to Ocampo’s medical situation over the previous days.
There is no clear evidence that Crowl knew of a substantial risk to Ocampo and was
deliberately indifferent to that risk. While Crowl has a duty in emergency situations to get
prisoners healthcare, the circumstances at the time did not lend themselves to either
Corizon staff, or Crowl, believing Ocampo was experiencing an emergency. As neither the
duty nor the subjective indifference prongs of the deliberate indifference test are met here,
Crowl is entitled to immunity under the negligence standard.
In looking to Ocampo’s other claim regarding Crowl’s purported reckless disregard
by failing to override medical providers, much of the aforementioned analysis applies. In
sum, Ocampo has failed to make an adequate showing that Crowl recklessly disregarded
Ocampo’s medical needs. As previously noted, in order to show objective indifference
under 42 U.S.C. § 1983, a plaintiff must meet a two-part test: first, the plaintiff must
demonstrate a constitutional right was violated; and second, the plaintiff must show that
the offender reasonably understood that his or her conduct was violating the plaintiff’s
constitutional rights. San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose,
402 F.3d 962, 971 (9th Cir. 2005). The subjective indifference standard provides that a
MEMORANDUM DECISION AND ORDER - 48

prison official must know of, and disregard, an “excessive risk.” Gibson v. Cnty. of
Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002). As discussed above, neither Crowl’s
knowledge of, nor indifference to, such an excessive risk has been shown.
As both the subjective and objective standards are required, and the facts of this case
do not support a finding of subjective deliberate indifference, the federal claim for reckless
disregard in failing to override medical professionals does not survive. Even if a jury could
find that both subjective and objective indifference were present, Crowl would be entitled
to qualified immunity under Idaho Code section 6-904B since no facts suggest that Crowl
knowingly violated the law. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
(“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.”) (internal citations
and alterations omitted). Accordingly, summary judgment is appropriate.
b. Motion to Strike
The Court turns next to Crowl’s Motion to Strike. Dkt. 95. In this Motion, Crowl
seeks an order striking numerous statements from Ocampo’s Declaration and Statement of
Facts regarding the aforementioned telephone conversation. Dkt. 95. As noted, this
conversation allegedly involved Crowl and an officer who was simultaneously relaying
Crowl’s information to Ocampo. In his Motion to Strike, Crowl asserts that many of the
statements Ocampo suggests were made are either not based on personal knowledge or are
inadmissible hearsay.
In a summary judgment ruling, only admissible evidence is considered by the court.
Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). To be admissible, evidence
MEMORANDUM DECISION AND ORDER - 49

must first be relevant. Under Federal Rule of Evidence 401, evidence is considered relevant
when it has “any tendency” to make a fact more or less probable. Because the conversation
at issue is relevant to whether or not there is a cause of action against Crowl for deliberate
indifference, the conversation in question meets the relevancy requirement.
Federal Rule of Evidence 602 requires that witnesses testify only to information
based upon personal knowledge. Anheuser-Busch, Inc. v. Nat. Beverage Distributors, 69
F.3d 337, 345 (9th Cir. 1995). Personal knowledge is described as information obtained
from one’s own senses and observations. See Wigmore on Evidence: Evidence in Trials at
Common Law, § 657 (4th ed. 2019-3 Cum. Supp. 1985). Construing the facts in the light
most favorable to the nonmoving party, Ocampo was physically present with the unknown
officer and engaged in dialog with her. Ocampo can testify to the conversation he engaged
in between himself and the unknown officer, as that portion of the conversation is based
on Ocampo’s own personal observations of the interaction.
However, relevant evidence such as out of court statements that are hearsay may be
barred under Federal Rule of Evidence 801(c) if the statements go to prove the truth of the
matter asserted. In this case, Ocampo emphasizes this conversation to illustrate that Crowl
was put on notice of Ocampo’s medical situation and, thereafter, acted with deliberate
indifference. Ocampo is not using this conversation to show that he was in fact in pain or
to prove the level of necessarily medical care. Because the evidence of the out of court
statements goes to show notice, it is not immediately barred as hearsay.
That said, Crowl’s statements that were not directly witnessed by Ocampo or that
could be considered outside of Ocampo’s general knowledge would be considered hearsay
MEMORANDUM DECISION AND ORDER - 50

if used to go to the truth of the matter, unless there is an applicable hearsay exception.
Whether Ocampo can testify to Crowl’s statements requires examining the two potential
applicable exceptions enumerated by the parties: 1) Federal Rule of Evidence 801(d)(2)(A)
and 2) Federal Rule of Evidence 801(d)(2)(D).
Federal Rule of Evidence 801(d)(2)(A) provides that a statement is not hearsay if
made by a party in an “individual or representative capacity.” A key part of this exception
is a finding that the statements to be admitted are the party’s own statements. See United
States v. Traylor, 656 F.2d 1326, 1332 (9th Cir. 1981). The Court agrees with Crowl that
in order for this exception to apply, the statements must be made by a party. While the
statements are alleged to have come from Crowl, Ocampo’s observation of the statements
came from the unknown officer who is not a party to the case. Whether all the statements
made by Crowl in a representative capacity is too speculative as there is no way for the
Court to ascertain whether the unknown officer recited information in a way representing
exactly (or close to exactly) Crowl’s words or whether they were her own
interpretations/representations of what Crowl had said. The hearsay exception under Rule
801(d)(2)(A) does not apply here.
Under Federal Rule of Evidence 801(d)(2)(D), evidence that may be considered
hearsay can be admitted if offered against an opposing party and the statements were made
“by the party’s agent or employee on a matter within the scope of that relationship . . . .”
Crowl contends there is no information in the record to determine that an agency
relationship existed between himself and the unknown officer. However, as noted, there is
evidence in the record that there was a female officer (Donna Mader) on Unit 4 at the time
MEMORANDUM DECISION AND ORDER - 51

the conversation occurred. Other evidence in the record states that Crowl supervises
officers in Unit 4 and together they ensure safety of the prisoners. It is reasonable to assume
that the officer who called Crowl was under his supervision and that an agency relationship
existed. It is also reasonable that the nature of the phone call was within the scope of that
relationship as the officer was reporting information to ensure Ocampo’s safety to her
superior. Under this exception, statements made by Crowl and relayed by the officer are
not hearsay and are admissible. That said, while this exception could make Crowl’s
statements non-hearsay for the Court, there is a double level of hearsay regarding the
relaying of this information from the officer to Ocampo—which as noted above does not
fall into a categorical exception.
In sum, the statements Crowl made to the officer are allowed under the agency
hearsay exception detailed in Federal Rule of Evidence 801(d)(2)(D). Any statements made
from the officer to Ocampo would be inadmissible hearsay without an applicable exception
such as notice. Further, any statements Ocampo witnessed the officer say to Crowl are from
his personal knowledge and are admissible. Any statements not observed by Ocampo, but
relayed between Crowl and the officer are inadmissible hearsay. The Court will allow
Ocampo’s statements in accordance with the above analysis and has given such statements
the weight it deems appropriate. The remaining statements are stricken. The Motion to
Strike is accordingly GRANTED in PART and DENIED in PART.
3. Conclusion
While the motion to strike has been granted in part, denied in part, and the
statements made between Crowl and the officer cannot be admitted for the purpose of
MEMORANDUM DECISION AND ORDER - 52

evaluating summary judgment, Ocampo has not met the burden of proof for deliberate
indifference and Crowl’s motion for summary judgment is GRANTED.
V. CONCLUSION
The Court has completed an exhaustive review of the record in this case—including
all briefing on the current motions and the cases cited at oral argument—and finds that
Defendants are entitled to summary judgment.
In hindsight, it is clear that Defendants were wrong in their initial diagnosis of
Ocampo’s condition.19 Based on what the Court and the parties collectively know now, the
Court agrees that Defendants’ medical care could have been more effective and efficient.
However, that is not the legal standard for an Eighth Amendment deliberate indifference
claim. As noted, there is no dispute that Ocampo was suffering from an “objectively serious
medical condition.” But, the Court must then consider whether any of the defendants
actually knew of, and disregarded, that risk of harm to Ocampo. See Gibson, 290 F.3d at
1187. The Supreme Court has repeatedly explained that there is a difference between
“deliberate indifference to serious medical needs of prisoners, and negligence in
diagnosing or treating a medical condition,” and that “only the former violates the [Eighth
Amendment]. Farmer, 511 U.S. at 835.

However, as noted above, much of the treatment—while incorrect—likely “slowed the progress [of the
Ludwig’s Angina] and the outcomes may have been worse had they not been used.” Dkt. 83-12, at 4-5. To
establish deliberate indifference, a plaintiff must show not only a purposeful act or failure to respond to the
prisoner’s serious medical need, but also specific harm caused by the indifference. Jett, 439 F.3d at 1096.
In light of the efficacy of Ocampo’s treatment in slowing his infection, it is not clear Ocampo could even
meet the “harm” element of a deliberate indifference claim. Regardless, his failure to establish the
subjective element of his deliberate indifference claim is fatal to his case.

19

MEMORANDUM DECISION AND ORDER - 53

All relevant and admissible evidence before the Court shows that Defendants acted
reasonably in this case. There is nothing to indicate that any of the Defendants knew that
Ocampo was in serious danger and affirmatively disregarded such risks. By all accounts,
Defendants were attentive to Ocampo’s needs. While some of them may have acted
unprofessionally or misdiagnosed Ocampo’s condition, none were deliberately indifferent
to Ocampo’s medical needs.
In a recent case that bears a striking resemblance to the present action, the Seventh
Circuit upheld summary judgment granted in favor of a prison doctor who failed to
diagnose a prisoner who was suffering from Ludwig’s Angina. The Seventh Circuit found
that the course of treatment the Doctor undertook—prescribing multiple medications,
waiting for the medications to work, observing the patient over a few days, routinely taking
his vitals, and then ultimately sending the prisoner to the hospital when his condition
worsened—was appropriate and did not constitute deliberate indifference. See Murphy v.
Wexford Health Sources Inc., 962 F.3d 911, 916 (7th Cir. 2020).
The Court makes a similar finding today. This is a classic Estelle medicaldisagreement case. Ocampo clearly disagrees with the course of treatment he received, but
even if it could be said that this treatment constituted indifference, negligence, or even
medical malpractice, it would still not be enough to support a cause of action under the
Eighth Amendment. See Broughton, 622 F.2d at 460. Ocampo was attended to (almost
constantly) by multiple trained medical professionals over the course of multiple days.
Again, while those efforts ultimately proved unfruitful, none were undertaken in a manner

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so as to limit Ocampo’s medical treatment, increase his risks, or inflict cruel and unusual
punishment. Summary judgment is, therefore, appropriate.
VI. ORDER
1. Defendant Dunning’s Motion for Summary Judgment (Dkt. 79) is GRANTED.
2. Corizon Defendants’ first Motion in Limine (Dkt. 80) is GRANTED in PART and
DENIED in PART.
3. Defendant Crowl’s Motion for Summary Judgment (Dkt. 82) is GRANTED.
4. Corizon Defendants’ Motion for Summary Judgment (Dkt. 83) is GRANTED.
5. Defendant Crowl’s Motion to Strike (Dkt. 95) is GRANTED in PART and DENIED
in PART.
6. Corizon Defendants’ second Motion in Limine (Dkt. 97) is GRANTED in PART
and DENIED in PART.
7. Defendant Dunning’s Motion to Strike (Dkt. 101) is GRANTED.
8. The Court will enter a separate judgment in accordance with Federal Rule of Civil
Procedure 58.

DATED: October 21, 2020

_________________________
David C. Nye
Chief U.S. District Court Judge

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