McDermott v. Valley et al
Filing
42
MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Plaintiff' Motion for Service 33 is DENIED. Plaintiff's Ex Parte Motion 29 is MOOT. Plaintiff's Motion to Compel Discovery 30 is MOOT. Plaintiff's Motion to Withdraw the Motion to Compel 34 is GRANTED. Plaintiff's Motion for Extension of Time to File Response 37 is GRANTED. The Response filed at Docket No. 39 is considered timely filed. Defendants' Motion for Summary Judgment 35 is GRANTED. Plaintiff 9;s Motion for Notice re: Suggestion of Death of a Defendant 41 is MOOT. Plaintiff's Complaint, and this entire cause of action, are DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JASON McDERMOTT,
Case No. 3:11-cv-00331-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
MATTHEW VALLEY, KIM MILLER,
DIANE KAUFMAN, LINDA GHERKE,
JAN EPP, DR. BUNT, BRUCE
COOPER, DR. PETERSON, DR.
BENTLY,
Defendants.
Pending before the Court are several motions ripe for adjudication (Dkt. 29, 33,
34, 37), including Defendants’ Motion for Summary Judgment. (Dkt. 35.) Having
reviewed the parties’ briefing, as well as the record in this matter, the Court concludes
that oral argument is unnecessary. Accordingly, the Court enters the following Order
granting Defendants’ Motion for Summary Judgment and dismissing this case with
prejudice.
MEMORANDUM DECISION AND ORDER - 1
MOTION FOR SUMMARY JUDGMENT
In his Complaint, filed on July 22, 2011, Plaintiff alleges that Defendants were
deliberately indifferent to his serious medical needs by failing to provide him with an
effective medication for his constipation condition in 2010 and 2011, when he was
housed at the Idaho Maximum Security Institution (IMSI) and the Idaho Correctional
Institution in Orofino (ICI-O). (Complaint, Dkt. 3; Plaintiff’s SOF, pp. 1-2.) Defendants
assert entitlement to summary judgment based on the entire record before the Court.
1.
Standard of Law
A.
Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. “Material facts are those that may affect the
MEMORANDUM DECISION AND ORDER - 2
outcome of the case.” See id. at 248. The moving party is entitled to summary judgment if
that party shows that each material issue of fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
record, or show that the materials cited do not establish the presence of a genuine dispute,
or that the adverse party is unable to produce admissible evidence to support the fact. Fed.
R. Civ. P.56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,
809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must
consider “the cited materials,” but it may also consider “other materials in the record.”
Fed. R. Civ. P.56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P.56(c)(2). Affidavits or declarations submitted
in support of or in opposition to a motion “must 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.” Fed. R. Civ. P.56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. The evidence of the opposing party is to be believed,
Anderson, 477 U.S. at 255, and all reasonable inferences which can be drawn from the
evidence must be drawn in a light most favorable to the nonmoving party. T.W. Elec.
Serv., 809 F.2d at 630-31 (internal citation omitted). If the moving party meets its initial
responsibility, the burden then shifts to the opposing party to establish that a genuine
issue (dispute) as to any material fact actually does exist. Matsushita Elec. Indus. Co. v.
MEMORANDUM DECISION AND ORDER - 3
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. Rule 56(e)(3)
authorizes the Court to grant summary judgment for the moving party “if the motion and
supporting materials—including the facts considered undisputed—show that the movant
is entitled to it.” Fed. R. Civ. P.56(e)(3).
B.
Section 1983 Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state
a claim under § 1983, Plaintiff must show the existence of four elements: “(1) a violation
of rights protected by the Constitution or created by federal statute (2) proximately caused
(3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947
F.2d 1418, 1420 (9th Cir. 1991). Section 1983 is “‘not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)).
“Liability under section 1983 arises only upon a showing of personal participation
by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted).
In other words, Plaintiff must show that Defendants’ actions caused the deprivation of a
constitutional right. 42 U.S.C. § 1983; Arnold v. International Business Machines Corp.,
637 F.2d 1350, 1355 (9th Cir. 1981). “The causation requirement of § 1983 . . . is not
MEMORANDUM DECISION AND ORDER - 4
satisfied by a showing of mere causation in fact[;] [r]ather, the plaintiff must establish
proximate or legal causation.” Id. The United States Court of Appeals for the Ninth
Circuit has explained: “A person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of § 1983, if he does an affirmative act, participates in another’s
affirmative acts, or omits to perform an act which he is legally required to do that causes
the deprivations of which he complains.” Id. (internal citation omitted).
C.
Eighth Amendment Claims of Inadequate Medical Care
To state a claim under the Eighth Amendment, Plaintiff 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.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). An Eighth Amendment
claim requires a plaintiff to satisfy “both an objective standard—that the deprivation was
serious enough to constitute cruel and unusual punishment—and a subjective standard—
deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained that “[b]ecause society does not expect that
prisoners will have unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in
MEMORANDUM DECISION AND ORDER - 5
further significant injury or the unnecessary and wanton
infliction of pain[;] . . . [t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain . . . .
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)
(en banc).
As to the subjective standard, a prison official acts with “deliberate indifference . .
. only if the [prison official] knows of and disregards an excessive risk to inmate health
and safety.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002)
(citation and internal quotation marks omitted). “Under this standard, the prison official
must not only ‘be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at
837). “If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson,
290 F.3d at 1188 (citation omitted). Nonetheless, “whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence, . . . and a factfinder
may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d
MEMORANDUM DECISION AND ORDER - 6
410, 421 (9th Cir. 2003) (deliberate indifference to medical needs may be shown by
circumstantial evidence when the facts are sufficient to demonstrate that defendant
actually knew of a risk of harm).
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o
prevail on a claim involving choices between alternative courses of treatment, a prisoner
must show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the
prisoner’s health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). Nor does the Eighth Amendment provide a right to a specific
treatment. See Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The plaintiff] is not
entitled to demand specific care. She is not entitled to the best care possible. She is
entitled to reasonable measures to meet a substantial risk of serious harm to her.”).
Finally, a mere delay in treatment does not constitute a violation of the Eighth
Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060.
MEMORANDUM DECISION AND ORDER - 7
2.
Undisputed Facts
This section is a chronology of factual allegations that are undisputed and material
to the resolution of the issues in this case. The Court has included the content in the
medical and prison records provided by the parties. Where Plaintiff contests what is
contained in the medical records, the Court has used his version of events for summary
judgment purposes, except where Plaintiff’s version of the facts is implausible, clearly
refuted by other evidence in the record, or self-contradictory. This section is not intended
to be a perfect reflection of Plaintiff’s course of treatment, given the extensive records
and briefing submitted in this case, but it is sufficient to cover the facts material to
determine whether Plaintiff had a serious medical need and whether Defendants were
deliberately indifferent to that need.
Dec. 5, 2001
As background information, Plaintiff has provided medical records
showing that he suffered a traumatic brain injury (TBI) from a
gunshot wound. A PET scan of January 27, 2005, led Dr. Monte S.
Buschbaum to conclude that Plaintiff had suffered a major brain
injury. (Dkt. 39-5, p. 25.) Plaintiff admits that sometimes his
“timeline is off, and that his confusion of the time is due to his
traumatic brain injury (which area that was affected was the sensory
and memory lobes). (Dkt. 23, p. 7.)
about March 2010
Defendant Physician’s Assistant (PA) Matthew Valley prescribed
Bentyl for Plaintiff’s constipation problems at IMSI. (See Dkt. 39-3.)
March 21, 2010
Plaintiff wrote an Offender Concern Form (OCF) and said that the
blue pills gave him nausea and a coppery aftertaste, that he thought
he was allergic to it, and that he would not take it any more. (Dkt.
39-3, p. 3.)
March 24, 2010
Plaintiff submitted an OCF, stating:
MEMORANDUM DECISION AND ORDER - 8
So, since your little blue pills made me debilitatively nauseous,
would you care to try something else? Ooh, I know; do you prescribe
benefiber? Something fibery that isn’t Fiberlax? Or, if not how about
some Purina puppy chow? Or cat mix? I heard that stuff works – I
used to eat it on the streets. The dog food would probably be cheaper
for the company you work for. You should suggest it. (Dkt. 39-3, p.
2.)
In response, PA Valley stopped the Bentyl and advised Plaintiff to
submit a Health Services Request Form (HSR) if he wanted to be
seen for constipation again. (Dkt. 39-3, pp. 2-3.)
April 5, 2010
Plaintiff sent in the following OCF, complaining about Defendant
Correctional Medical Specialist (CMS) Bruce Cooper:
Let me see if I can describe my feelings about Mr. Cooper in a way
that you’ll start paying attention when I say I dislike him: I would
rather have a cheese grater rubbed across my scalp; or have my
fingernails ripped off with rusted tweezers; or my teeth pulled
without novocaine’s numbing magic; than to speak with Mr. Cooper
over anything concerning my medical problems. I thought I was
clear about that when I called him a jack-ass, a dick and some other
colorful words. His attitude is something of a sort indescribable by
few words, and it is apparent upon speaking to him, that he doesn’t
understand English. Therefore, anytime you send him to speak with
me, I will respectfully decline. (Unless he persists, in which case I
won’t be so respectful.) Thank you. (Dkt. 39-5, p. 32.)
The response from Dr. Dawson was: “You have the right to refuse
any medical care. The policy is for medical staff, like CMS Cooper,
to triage any HSR’s and respond to emergencies, so he may come to
offer you assistance as part of his job.” (Id.)
April 30, 2010
Plaintiff submitted an OCF to PA Valley: “Where did you get your
medical license?” Plaintiff said he was going to check everything
Valley told him. He disagreed with Valley’s statement that one
bowel movement a week could be considered normal. (Dkt. 39-3, p.
3.)
May 3, 2010
Plaintiff submitted an OCF to PA Valley and said he had suffered
from the constipation problem for several years and thought he could
MEMORANDUM DECISION AND ORDER - 9
have something more serious. He wanted to write to CMS
headquarters to ask why Metamucil was not on the formulary list any
more. (Dkt. 39-3, p. 2.)
August 23, 2010
Plaintiff had an appointment with PA Valley, who evaluated Plaintiff
for bowel movement complaints. (York Affidavit, Dkt. 21, ¶ 5;
Valley Aff. ¶ 6.) Plaintiff reported that he had a bowel movement
every one to two weeks. He told Valley the following medications
had not worked for his bowel issues: Fibernorm (a bulk forming
laxative), Colace (a stool softener), Bentyl (an anticholinergic used
to treat irritable bowel syndrome), and Dulcolax (a stimulant
laxative), and that Metamucil (psyllium, a bulk forming laxative)
was the only thing that worked for him. PA Valley ordered Lactulose
(an osmotic laxative) for Plaintiff to try, but Plaintiff was concerned
about this product, pointing out that when laxatives are used
continuously they would cause the bowels to become lazy or
dependent on laxatives. (Id.) Valley interpreted this information from
Plaintiff as a refusal and instructed Plaintiff that he believed
Lactulose would help him and to submit an HSR if he changed his
mind. (Id.)
Sept. 13. 2010
Plaintiff submitted a Grievance (No. IM 100000609), saying that he
would try Lactulose, but that it was meant for only temporary use,
and complaining that IMSI staff would not provide him with
Metamucil. (Dkt.39- 3, pp. 6-7.) In the appeal, he requested only
Metamucil, saying he had tried everything else. (Id., p. 13.) At this
time, Plaintiff was on a medical diet in partial connection to ongoing
constipation issues.
October 14, 2010
Plaintiff was transferred to ICI-O. (York Aff., Dkt. 21, p. 4.)
October 25, 2010
Plaintiff was evaluated by Nurse Practitioner (NP) Rory York at ICIO for complaints of chronic constipation. York prescribed “calcium
polycarb tablets – Fibernorm” and Docusate SOD Caps – Colace.
Plaintiff submitted an OCF disputing the order, stating that he had
told York that fiber and Colace make his bowel problems worse,
because of prior experience. He accused York of ignoring his
statement not to order fiber and Colace and stated, “I’m not going to
pay for something that causes me harm. If I wanted to do that, I
would have had you give me arsenic.” At least with that, I’d be
MEMORANDUM DECISION AND ORDER - 10
BM’ing regularly.” (Dkt. 21-11, p. 17.) York responded that he
believed Fiber-Lax and Colace were the best treatments for his
condition. (Id.; York Aff., Dkt. 21 ¶ 7.)
October 25, 2010
Plaintiff submitted an OCF addressed to “Roary”:
“Everyone has a boss. Who’s yours? Who oversees your decisions?
Also, whose decision was it to nix the powder fiber products?
Yours? CMS heads? I need specific names and titles, of all persons
involved in the decision of your boss. Thank you.” (Dkt. 21-11, p.
17.)
The response was: “This was discussed at the Idaho Regional
Provider Meeting and it was determined that the powdered fiber
products are not medically necessary and constipation will be treated
with the capsules.” (Id.)
October 25, 2010
Plaintiff also wrote a second OCF, complaining that Fiber-Lax is a
calcium enriched product that does not contain any fiber. NP York
wrote back: “Page 279 of the most recent Merck manual states
calcium polycarbophil is the only treatment for chronic
constipation.” (Dkt. 21-11, p. 18.)
Dec. 6, 2010
Plaintiff asked for a double mattress; NP York saw no medical need
for the request. (Dkt. 21-2, p. 10.) Plaintiff provided information
about his TBI to RN Diane Kaufmann upon her request.
Dec. 16, 2010
Dr. Clayton Bunt saw Plaintiff for his constipation issue. Plaintiff
had a soft abdomen, positive bowel sounds, and no masses or
abnormally palpable stool. Plaintiff said Fiber-Lax and Colace
worked the opposite for him, but that he would try Lactulose (which
is the product he did not want from PA Valley at IMSI). Dr. Bunt
ordered Lactulose and discontinued the other two products. (York
Aff., Dkt. 21 ¶ 9; Bunt Aff., Dkt. 35-9, p. 2.)
Dec. 16, 2010
Plaintiff wrote an OCF to Diane Kaufmann:
“Thank you for getting me in there. You asked about my TBI and I
was unable to explain more thoroughly. I didn’t receive the proper
care from rehab because they too had your thought: ‘he seems to
function normally enough. Able to walk and think/act on his own.’
MEMORANDUM DECISION AND ORDER - 11
Problem is, I created a new type of TBI. They didn’t recognize it,
and therefore didn’t know how to deal with it. Instead of trying, they
shunned me. It has taken longer for me to heal, because I had to do it
on my own. The only way you’d know I was not normal in function
is to be around me on a constant day to day basis. Well, that’s
basically the rest of it. Thanks for your concern and diligence. Most
appreciated.” (Dkt. 21-11, p. 22.)
Dec. 22, 2010
Plaintiff had a first dosage of Lactulose. (Dkt. 21-3, p. 21.)
Dec. 24, 2010
Two days later, Plaintiff submitted an OCF stating he did not want to
use Lactulose any longer because it caused him bad gas and caused
“the ice cream shits”; he needed a bulk-forming laxative. (Dkt. 2112, p. 1.) The response was that the formulary had Fiber-Lax caps.
(Dkt. 21-12, p. 1.) Plaintiff took Lactulose several times after he
complained about it and then quit altogether. (Dkt. 23, p. 8.)
Dec. 28, 2010
Plaintiff submitted another OCF stating Fiber-Lax did not work for
him. The response was that he was scheduled to see the doctor at his
next visit. (Dkt. 21-12, p. 2.)
Dec. 30, 2010
Plaintiff submitted an OCF, stating:
I know you’re trying to kill me. That liquid stuff made my guts 10x
worse. I haven’t shit for 2 ½ weeks, and the pressure is going to my
head causing more pressure, and constant nose bleeds. My stomach
feels bruised. I’ve done approx. 4,000 crunches in the past 2 weeks
with no [illegible], I work out every day, drink plenty of water.
You’re just trying to kill me by not giving me what I need. I’m
always fatigued and constantly have a feeling to my [illegible] that is
indescribable in any one word.” This complaint of not having had a
bowel movement in two and a half weeks is in contrast to his
statement in his December 24, 2010 OCF that he had “the ice cream
shits” six days earlier. (Dkt. 21-11, p. 10; compare Dkt. 21-12, p. 1.)
NP York discontinued the Lactulose and ordered a consultation with
Dr. Phillip Peterson regarding Metamucil versus Fiber-Lax capsules.
(York Aff., Dkt. 21, ¶ 9; Dkt. 35-10, p. 4.)1
1
Also on December 2010, Plaintiff alleges that the following occurred, but he did not give notice
of the incident to Defendants or the medical unit. Plaintiff alleges he suffered bleeding from his rectum.
(Complaint, Dkt. 3.) Later, his cellmate, Terry Deveraux, declared: “that on at least one occasion I
MEMORANDUM DECISION AND ORDER - 12
January 6, 2011
Plaintiff submitted a grievance (No. IO 11000007), stating that Rory
York had referred him to Dr. Bunt to address constipation problems,
and that Dr. Bunt prescribed Lactulose that made things worse.
Plaintiff stated he has not had a bowel movement in 19 days.2 He
sought Metamucil or a product similar to it that is not Fiberlax; he
wanted a fiber product, not a calcium-enriched product (Fiberlax
contains calcium). (Dkt. 39-4, pp. 1, 5.)
Defendant Kim Miller, a licensed nursing assistant charged with
responding to medical grievances, reviewed the chart and responded.
(Kim Miller Aff., Dkt. 35-5, p. 3.) The 1/7/11 response was that he
had been seen and/or his file reviewed by a nurse practitioner, a
doctor, and the regional medical director, who believed he was given
proper treatment for constipation. He was ordered to send in a new
HSR if he had increased problems, and he would be scheduled for a
re-evaluation. (Id.)
Plaintiff complained in the grievance appeal that, even though the
treatment given should have worked, it didn’t, and, therefore, the
medical providers should give him something else, because his
problem was worsening. The appeal response was: “The medical
assessment of and the treatment plan for you is consistent with
medical standards.” (Id.)
Jan. 13, 2011
Plaintiff submitted an HSR because he had a pain from the right side
of his gut to his bottom. he said: “it probably has something to do
with your lack of competence in giving me a product that works for
me so I can poop properly.” Defendant Kim Miller responded, noting
he was scheduled to be seen, but needed to address staff
appropriately or future kites would be returned to him. (York Aff.,
witnessed Mr. McDermott fall of the toilet while attempting to defecate, and saw blood dripping down his
legs from his back-side.” Mr. Deveraux also stated that medical staff responded the next day, and Plaintiff
went to the medical unit. Mr. Deveraux stated that, when Plaintiff returned, he was visibly upset over
Medical’s unwillingness to help him. (Terry Deveraux Affidavit, Dkt. 39-3, pp. 15-16.) The record does
not contain any HSR or OCF submitted by Plaintiff that corresponds to these allegations. (Reply, Dkt.
40.) The record does not contain any evidence that Defendants knew of this incident when it occurred.
2
Plaintiff “admits that his timeline is off, and that his confusion of the time is due to his traumatic
brain injury (which area that was affected was the sensory and memory lobes). This admission does not
take from the fact that whether 19 days or 6 days, the pain and discomfort was enough that it felt like
several weeks.” (Dkt. 23, p. 7.)
MEMORANDUM DECISION AND ORDER - 13
Dkt. 21, ¶ 10.)
Jan. 14, 2011
Plaintiff refused to be seen when called for exam. (Dkt. 21-8, p. 48.)
He alleges he refused to leave his cell because of the severe pain he
was in, and medical staff refused to come to his tier to see him. (Dkt.
23, p. 8.) The same day he complained that he should not have to cut
open his pills and put them into water. Because his form contained
vulgar language, Ms. Miller required him to resubmit it in a
respectful form. (York Aff., Dkt. 21, p. 5.)
Jan. 30, 2011
Plaintiff wrote an OCF to Nurse Diane Kaufman:
“You lied to me. On a kite, you told me I’d be rescheduled to see the
same doctor I saw before. then in answer to a possibly lifethreatening issue, you ignored me until the next day. I had to deal
with the issue in a highly unsanitary way. I refused your
incompetence because it wasn’t the doctor I was told I’d see. Due to
your incompetence, neglect, and indifference to my special
circumstance – I still have not been able to have a BM - since the
14th. If I die, or something ruptures, my point will be proved. Do
your fricking jobs, stop lying to me and yourselves. Prove that
you’re providing me ‘proper care.’” (Dkt. 1-1, p. 13.)
Kim Miller responded that the providers were qualified, and that he
needed to file a request on the right form, and he would be seen by a
medical provider. (Id.)
Feb. 3, 2011
Plaintiff submitted an OCF to Kim Miller:
“First off, I didn’t write you - I wrote Diane Kaufman. If I wanted an
answer from you, I would’ve wrote [sic] to you. Secondly; the
reason I was scheduled to be seen by Dr. Bunt and not some other
provider is because some other provider (Rory York) - was
incompetent in his duties, so [illegible]; NO, just because one is
‘licensed’ in the state of Idaho does not necessarily mean one is
‘qualified’ to practice law [sic]. Incompetence isn’t like the common
cold, you don’t get over it easily; but it is contagious. Don’t answer
my kites if they’re not addressed to you. And stop playing games, get
me in to see Dr. Bunt as originally told me.” (Dkt. 21-11, p. 14.)
Kim Miller responded that she answers all concern forms and
MEMORANDUM DECISION AND ORDER - 14
grievances after consulting with the concerned parties, and that the
providers were qualified, and that he was being treated for his issues.
(Id.)
Feb. 11, 2011
Plaintiff was evaluated by Dr. Bunt. Plaintiff reported to Dr. Bunt
that he had taken the Lactulose for three to six days, and then
stopped because of complaints of gas. He reported that he just had a
bowel movement. (Dkt. 35-10, p. 4.) Because Plaintiff continued to
complain of constipation, had no masses, and refused laxatives, Dr.
Bunt noted the need to establish or verify the constipation aside from
Plaintiff’s subjective complaints. Dr. Bunt reported that Plaintiff was
“fixated on Metamucil.” (Dkt. 21-2, p. 9.) Dr. Bunt ordered Miralax
(an osmotic laxative) for Plaintiff, on a watch take basis for 90 days.
He also ordered that Plaintiff have a plate abdomen x-ray if Plaintiff
complained of no bowel movement for more than six days. (Dkt. 359, p. 3.) Dr. Bunt had no further involvement in Plaintiff’s treatment.
(Id.)
Feb. 22, 2011
Plaintiff submitted an OCF and said he had not had a bowel
movement for 7 days and wanted to be x-rayed. (Dkt. 21-11, p. 15.)
Ms. Miller responded that he was scheduled to see a medical
provider on that date. (Id.) However, Plaintiff refused to see Rory
York on that date and refused to sign a refusal of treatment form.
(Id.) Plaintiff submitted another OCF claiming that York was
incompetent and that Plaintiff had been assigned to Dr. Bunt. Ms.
Miller wrote back that York was competent and Dr. Bunt was only at
the facility occasionally. (Id.)
Feb. 24, 2011
Plaintiff wrote an OCF addressed to Rory York:
“I heard you are not a licensed physician - that you are only a
licensed veterinarian. Is this true? Do you only possess a license to
care for animals? (I prefer that Mr. York answers this himself.)”
(Dkt. 21-11, p. 16.)
March 1 or 2, 2011 Plaintiff sent in an OCF, complaining he had not received the
Miralax that Dr. Bunt ordered. Kim Miller responded that they had
not yet received approval and that Plaintiff was scheduled to see the
doctor at his next available appointment. (Miller Aff., Dkt. 35-5, p.
3.)
MEMORANDUM DECISION AND ORDER - 15
March 7 & 8, 2011 Plaintiff sent in an OCF stating the he wanted Metamucil, and, if it
was given to him, there would be no further problems. Kim Miller
discussed the Miralax order with Dr. Petersen on March 8. Dr.
Petersen opined that Miralax would not help Plaintiff’s symptoms,
and instead ordered Fiber-Lax caps. Miller responded, telling
Plaintiff that Fiber-Lax was prescribed to him and reminding him to
increase his fluid intake and exercise. (Dkt. 35-5, p. 4.) (It is to be
noted that Fiber-Lax is the product that Plaintiff had requested on
October 14, 2010.)
March 10, 2011
Plaintiff sent in an OCF, stating that he took Fibercon for 3 days, but
it did not work. The response was that “three days is insufficient to
regulate bowel formation.” Plaintiff questioned this response because
the Fibercon box, label, contents, and directions states that a bowel
movement should occur within 12 to 72 hours, and that the product
should not be taken more than 7 days. (Dkt. 39-4, pp. 4-5.)
March 10, 2011
Plaintiff refused to come to pill call. (Dkt. 21-8, p. 43.)
March 11, 2011
Plaintiff refused Fiberlax and Naprosyn. (Dkt. 21-8, p. 42.)
March 16, 2011
Dr. Lossmann wrote to Linda Gerhke, suggesting that Plaintiff be
given Metamucil on a watch-take basis. (Dkt. 39-4, p. 7.) NP York
made this notation in Plaintiff’s medical records, but mistakenly
wrote 3/16/10 rather than 3/16/11. (Dkt. 21-1, p. 5.)
March 17, 2011
Plaintiff wrote an OCF stating:
Despite your opinion, I do have medical cause for a PET scan. I can
feel my symptoms getting worse: vertigo, visual blurring/fading;
hand pains getting worse; fatigue; weakness; drowsiness for no
reason; feelings of “otherness” and other visual/physiological
symptoms pertaining to a TBI. I believe the “gaping hole/space”in
my brain has gotten larger. To verify this I need at least an x-ray of
my head to determine what has happened.” (Dkt. 21-11, p. 9.)
Mar. 17, 2011
NP York started Plaintiff on Metamucil one time daily on a watch
take basis. ( Dkt. 39-4, p. 12.) In Plaintiff’s original claim, he stated
he only received the Metamucil for three days before it was
discontinued, and he was “returned to a calcium-based product...
called ‘Natural Vegetable Fiber’ - a generic brand of the most
MEMORANDUM DECISION AND ORDER - 16
generic brand of Metamucil.” (Complaint, Dkt. 3, p. 8.) Later
Plaintiff stated that this was “[a] slight miscalculation on his part – it
was actually 7 days. The record reflects that he took “Psyllium SF
Powder - Metamucil” (regardless of whether it was brand-name or
generic) once a day from March 17, 2011 through April 13, 2011,
nearly a month. (Dkt. 21-3, pp. 9-10.)3
Mar 19 - 31, 2011
Plaintiff’s Medication Administration Record shows one dosage of
“Metumucil” was given to him each evening. (Dkt. 39-4, p. 3.)
March 28, 2011
Plaintiff requested by OCF that he be given “Metamucil” twice
daily, rather than once daily, as he was previously ordered. (Dkt. 394, p. 10.) Kim Miller of CMS responded that he needed to send his
request to the medical unit on an HSR form.
April 1 -13, 2011
Plaintiff continued to receive one dosage of “Metamucil” in the
morning. (Dkt. 39-4, p. 12.)
April 13, 2011
Plaintiff submitted an HSR requesting that he be given Metamucil
twice daily because “I’ve been on it now for more than 7 days.”
(Dkt. 39-4, p. 13.) Plaintiff states that he had “great results from
taking “Metumucil” for 7 days. (Dkt. 23, p. 11.)
April 14 to Apr 30 Plaintiff was given one tablespoon of “Metamucil” in the morning
and evening on a “watch take” basis. This was prescribed for 90
days, from April 14 to July 14, 2011. (Dkt. 39-4, p. 12.)
May 14, 2011
Plaintiff began refusing “Metamucil” because he stated in writing
that he was experimenting with how his medications were interacting
with each other. He asked that his “Metamucil” not be discontinued.
(Dkt. 21-8, p. 36, 37.)
May 19, 2011
Plaintiff refused “Metamucil.”
May 21, 2011
Plaintiff refused “Metamucil” and Neurontin in advance by writing a
note, because he wanted to sleep due to a lack of sleep the night
before.
3
Defendants do not refute Plaintiff’s allegation that name-brand Metamucil was switched to
generic psyllium at some point in time during the course of Plaintiff’s prescription for Metamucil, and the
Court does not find this point material, for reasons discussed below.
MEMORANDUM DECISION AND ORDER - 17
May 23, 2011
Plaintiff refused “Metamucil,” Neurontin and Prilosec. (Dkt. 21-8, p.
32.) NP York then changed the Metamucil to an as needed basis for
the remainder of the 90 days.
June 1 -13, 2011
Plaintiff continued to refuse “Metamucil,” Neurontin, and Prilosec
(Dkt. 21-3, p. 4.)
June 11, 2011
Dr. Petersen determined that Plaintiff’s belief that generic psyllium
had added calcium that caused constipation was a theoretical issue
without any data suggesting that there was any clinical difference
between brand-name and generic Metamucil. The request for the
brand name Metamucil was denied. Dr. Petersen stated, “If the
patient has clinical data, he may submit that to me for review.” (York
Aff., Dkt. 21, p. 8; Dkt. 21-2, p. 3.)
June 24, 2011
Plaintiff asked Nurse Practitioner Katrina Bentley of ICI-O to order
brand-name Metamucil for Plaintiff on a PRN basis, and she did so.
(Complaint, Dkt. 3, p. 9; Dkt. 21-2, p. 31.)
July 2011
Plaintiff submitted an HSR: “Mr. Lossmann had ‘suggested’ giving
me the brand name Metamucil. This treatment has been altered and
prevented by [illegible] who doesn’t know my history (Dr. Petersen).
I’m requesting to be placed on 1 of 3 products: (1) Metamucil; (2)
Revita; or (3) Konsyl. All are products of Metamucil and do not
contain additives that harm me.” This request was denied by Dr.
Petersen, with Ms. Miller conveying the response to Plaintiff. (Dkt.
39-4, p. 14.)
July 13, 2011
Plaintiff filed an OCF: “I have marked constipation due to calcium
build-up. My request wasn’t just because of the labeling. I didn’t
even look at the label until I was taking the product for 14 days
without a BM. You need to show due diligence and [read] my
fricking file. CMS just got fined $100,0000 for not giving proper
mental health care....Read my ENTIRE file - current to back logged. If you need more proof, I’ll give you the phone number to
my attorney - who has been helping me fight you A-holes over this
matter for 7 years. How much more proof do I need?” (Dkt. 21-11, p.
2.)
July 22, 2011
Plaintiff filed this lawsuit.
MEMORANDUM DECISION AND ORDER - 18
Aug 3, 2011
Dr. Petersen evaluated Plaintiff for constipation. Plaintiff said he had
chronic constipation from calcium build up. Plaintiff said that
Lactulose caused him severe pain in the gut and the inability to have
a bowel movement for 19 days. He said his constipation persists
regardless of how much exercise he gets or water he drinks. He
requested an MRI to look at his whole body because he had a head
injury and thought that he may have problems in the bowel from his
head injury. Plaintiff had a soft abdomen with normal bowel sounds
and no tenderness, and appeared healthy. Dr. Petersen’s assessment
was a professed pardoxical reaction to all products except
Metamucil, and it made no sense that only Metamucil would be
effective and that Lactulose would be constipating. Dr. Petersen
ordered an abdominal x-ray and a stool sample. The stool specimen
was normal, except there was a moderate white blood cell count. the
radiology report showed normal colonic fecal content and
distribution. (Dkt. 39-4, p. 16; Dkt. 21-1, p. 6; Dkt. 21-2, pp. 1-2.)
October 27, 2011
Dr. Petersen reviewed Plaintiff’s abdominal films, which were taken
when Plaintiff was complaining of severe constipation. The films did
not show any significant impaction or bowel dilation. There was no
clearly marked megacolon or any evidence of significant gas or fecal
pattern abnormalities. (Dkt. 21-1, p. 29.)
December 15, 2011 Plaintiff had a colonscopy. He was diagnosed with “Mild diffuse
colitis, unknown etiology, differential to include microscopic colitis,
viral, irritable bowel syndrome with primary constipation. The
procedure was for the purpose of ruling out inflammatory bowel
disease. The plan in the report was to await the biopsy results and to
“continue routine protocol diet per ICIO medical.” (Dkt. 39-4, pp.
16-17.) PA Rory York reviewed the report on the same day and
noted, “Continue current treatment plans[;] await biopsy results.”
(Dkt. 39-4, p. 19.)
December 19, 2011 Biopsy results: “The colonic biopsies (specimens B-E) demonstrate
mildly increased inflammation. There is a suggestion of decreased
number of crypts in the distal transverse and rectal biopsies
(specimens B and E) which could indicate chronicity. Active colitis
is not present and no granulomas or ulceration are seen. These
changes are non-specific. Clinical correlation is recommended. (Dkt.
39-4, p. 20.)
MEMORANDUM DECISION AND ORDER - 19
December 21, 2011 The pathology report was issued, showing: “? microscopic colitis,
may benefit from low dose flagyl,” with a note to “forward to ICIO
medical and Dr. Petersen.” (Dkt. 39-5, p. 18.)
December 23, 2011 Dr. Petersen examined Plaintiff, who had lost weight but was in no
distress. Dr. Petersen reviewed the colonscopy results, which were
normal but showed “low grade chronic inflammation, but not
diagnostically precise.” Petersen indicated he would consult with the
gastro-intestinal provider, but not make any changes to treatment in
the interim. (York Aff, Dkt. 21, p. 9; Dkt. 21-1, p. 27.) Plaintiff said
that he may refuse to go to the specialist if it involves much time in
Boise. (Dkt. 21-1, p. 27.)
December 24, 2011 Plaintiff sends in an OCF asking why the GI specialist could not
come to the prison instead of Plaintiff going to the specialist’s office,
because it “really is a large inconvenience for me because I’d have to
sit in 8 House with no property for however long I’d have to be
down there.” Plaintiff also demanded that Dr. Petersen answer the
OCF, rather than Kim Miller. Ms. Miller wrote back: “I answer all
concern forms after consulting with the provider. You are not
scheduled for an offsite - if you are having problems, please put your
request on a medical kite and I will schedule you with the provider at
his next available appt. ” (Dkt. 21-10, p. 12.)
January 17, 2012
Dr. Petersen evaluated Plaintiff, who was not taking anything for his
bowel. Dr. Petersen wrote: “I have discussed this case with GI. The
findings on the biopsies and colonscopy were non-specific and didn’t
indicate colitis. Rather, I was given the advice that we needed to get
control of his constipation. The specialist I talked to was not
concerned based of [sic] the biopsy and colonscopy about any
serious colonic disorder.” Dr. Petersen’s assessment was
constipation and that Plaintiff was noncompliant with his
recommended treatment and that his focus was on being different
from anyone else. (Id.; Dkt. 21-10, p. 26). Dr. Petersen told Plaintiff
that his issues were irritating but not dangerous, and that “we have
the tools in our formulary to take care of [your] problem.” (Id.)
April 12, 2012
Plaintiff was evaluated by Dr. Petersen. He again appeared normal.
Dr. Petersen found that the complaints of constipation were not
supported with any objective evidence or real problems. (Dkt. 21-1,
p. 23.)
MEMORANDUM DECISION AND ORDER - 20
May 2, 2012
Plaintiff submitted an HSR requesting fiber powder. Dr. Petersen
required Plaintiff to state in writing that he wanted it and agreed to
take it. Plaintiff refused. He later filed a grievance (No. IO
12000000262), that was upheld due to his previous noncompliance
with taking medication. (Dkt. 21-12, pp. 3-4.)
July 13, 2012
Dr. Peterson evaluated Plaintiff, who appeared normal. Plaintiff
reported intermittent constipation, with weeks of regularity in
between, and that he had a bowel movement three days earlier. Dr.
Petersen noted that Plaintiff was able to participate in the stool
studies, colonscopy, and abdominal films done (all showing the
presence of normal stool), despite Plaintiff’s complaints that he had
no bowel movements. Dr. Petersen noted that Plaintiff has not been
willing to take the formulary medications nor the nonformulary
medication prescribed. Dr. Petersen told Plaintiff he would be better
taking the prescribed medications, and he would restart a psyllium
(natural vegetable fiber) order if Plaintiff were willing to take it.4
(Dkt. 21-9, pp. 20-21.)
July 14, 2012
Plaintiff refused to take the natural vegetable fiber at a.m. pill call,
but wanted to take it in the evening instead. (Dkt. 21-9, p. 37.)
July 15-23, 2012
Plaintiff refused to take the natural vegetable fiber. (2nd York Aff.,
Dkt. 35-7, p. 2; Dkt. 35-8, pp. 3-5.) He said the a.m. dosage was not
convenient, and would not interrupt his phone call when pill call sent
an officer to get him. (Dkt. 21-9, pp. 19, 32-35.)
Aug. 1 - 12, 2012
Plaintiff took the natural vegetable fiber. (Id.)
Sept. 17, 2012
Plaintiff sent in an HSR asking about “Flagyl,” an antibiotic
suggested by Dr. Meza after he had received the colonscopy.
Plaintiff had learned about the Flagyl recommendation by reviewing
medical records received in the discovery of this case. Plaintiff asked
Rory York about it and York knew nothing about it. and said he had
never seen the report before. York provided Plaintiff with a 10-day
Flagyl prescription, and Plaintiff found that it gave him some relief.
4
This prescription was in contrast to the earlier prescription for brand name Metamucil,
which showed “psyllium - Metamucil.” This new one was for “natural vegetable fiber.” (Dkt. 219, p. 22.) It is unclear from the record whether this prescription was for psyllium or another type
of vegetable fiber.
MEMORANDUM DECISION AND ORDER - 21
(Dkt. 39-5, p. 13-18.)
February 5, 2013
Plaintiff complained of urination and BM problems, with burning
urination as the primary problem. (Dkt. 35-8, p. 10; 2nd York Aff.,
Dkt. 35-7, p. 2.)
In addition to Plaintiff’s complaints about constipation, the record is replete with
complaints about other health issues, such as dental care, trouble breathing, and a myriad
of problems, some of which Plaintiff attributes to his traumatic brain injury.
3.
Discussion
A.
Plaintiff’s Objections to Defendants’ Failure to Explain a Widened Scope
of Treatment Beyond the Pleadings
The Court first addresses Plaintiff’s objections alleging that Defendants have
ignored some of the time periods for which they provided him treatment or performed
administrative work on his medical file. However, Plaintiff’s Complaint asserts claims
against Defendants during a discrete time period. Defendants’ Motion for Summary
Judgment, with supporting Affidavits and exhibits, addresses that discrete time period.
Therefore, Plaintiff’s responsive allegations that Defendants are deliberately ignoring or
attempting to “hide” other care provided to Plaintiff outside the time period alleged in the
Complaint are unfounded.
No supplemental pleadings have been proposed to extend the scope of the claims
to additional time periods. However, in pro se prisoner Eighth Amendment medical care
cases, the Court generally considers the entire length of time for which medical records
are submitted if the plaintiff has asserted a claim for injunctive relief, as in this case. Even
MEMORANDUM DECISION AND ORDER - 22
considering the additional allegations and medical records for the expanded time periods
covered by Plaintiff in his Response, the Court concludes that Plaintiff has failed to bring
forward sufficient evidence from which a jury could find that Defendants were
deliberately indifferent to a serious medical condition of Plaintiff, as it will now explain.
B.
Plaintiff’s Treatment at IMSI Facility
(1)
PA Valley
As the chronology above shows, Physician’s Assistant Matthew Valley examined
Plaintiff at IMSI in 2010. Plaintiff has provided no medical records showing when he first
began to complain of constipation, but the medical records provided to the Court reflect
that Valley prescribed Bentyl, a formulary drug, for his constipation condition in or about
March 2010. When Plaintiff complained about the side effects of this medication, it was
discontinued.
The record reflects that, on August 23, 2010, Valley tried to prescribe a different
type of medication that Plaintiff had not tried, Lactulose (an osmotic laxative). Plaintiff
was worried about developing a dependence upon a laxative, but there is no indication in
the record that Valley’s plan was to have Plaintiff take Lactulose on a permanent basis.
Between March and September 2010, Plaintiff requested to be placed on brandname Metamucil, even though it was not a regular formulary medication. PA Valley did
not place him on Metamucil, but offered Lactulose, another formulary medication. In the
first round of his grievance proceedings, Plaintiff argued about the propriety of
prescribing Lactulose but stated that he agreed to try it; however, in the second round of
MEMORANDUM DECISION AND ORDER - 23
the grievance proceedings (the appeal), Plaintiff learned that brand-name Metamucil
could be ordered into the pharmacy for him even though it was non-formulary if he had
tried all formulary prescriptions. At that point on, he insisted on brand-name Metamucil.
Plaintiff was transferred to a different facility in October 2010, and PA Valley’s treatment
of Plaintiff ended.
On this record, the Court concludes that Plaintiff has not produced sufficient
evidence to show that PA Valley was deliberately indifferent to a serious medical need of
Plaintiff between March and October 2010. Plaintiff has not provided earlier medical
records documenting any long-standing serious condition. The record reflects that Valley
began a conservative course of treatment for Plaintiff’s complaints of constipation with
the various medications that were available in the formulary, but Plaintiff would not
cooperate with that plan. There is no hint in the record that PA Valley (1) knew of or
drew an inference of a substantial risk of harm to Plaintiff’s health with the course of
treatment chosen for Plaintiff, and (2) recklessly disregarded the risk and continued the
course of treatment anyway. For that matter, Plaintiff has not come forward with
sufficient medical evidence from which a jury could find that a substantial risk of harm to
his health existed during the time period PA Valley treated Plaintiff, as a result of
Plaintiff’s undocumented complaints of constipation.
Whether PA Valley’s choice of medications was optimal or the one Plaintiff
requested is not at issue in the inquiry into the subjective prong of the deliberate
indifference analysis. The Eighth Amendment does not provide a right to a specific
MEMORANDUM DECISION AND ORDER - 24
treatment. See Forbes v. Edgar, 112 F.3d at 267. Plaintiff has failed to come forward with
sufficient evidence to show that PA Valley’s recommendation to try several constipation
medications offered by the prison formulary was “so inadequate that it demonstrated an
absence of professional judgment, that is, that no minimally competent professional
would have so responded under those circumstances.” Collignon v. Milwaukee County,
163 F.3d at 989. Plaintiff has not supported his position with an opinion from any medical
provider showing that, under the circumstances reflected in the record, PA Valley’s
course of treatment at IMSI was even negligent (which does not rise to the level of an
Eighth Amendment violation).
As a result of the foregoing, PA Valley is entitled to summary judgment, and
Plaintiff’s claims against PA Valley will be dismissed with prejudice.
(2)
Bruce Cooper
Bruce Cooper was an unlicensed correctional medical specialist (CMS) who
worked at IMSI during the time period PA Valley treated Plaintiff. CMS Cooper does not
recollect treating Plaintiff. However, Plaintiff asserts that Cooper denied him a
prescription for Metamucil in August or September of 2010. (Complaint, Dkt. 3, p. 3.) As
shown above, the evidence presented by Plaintiff shows that, during this time period,
Plaintiff was being assessed and treated by PA Valley and that PA Valley was responding
to Plaintiff’s written complaints about treatment. Nothing in the record shows it would
have been appropriate for CMS Cooper to override PA Valley’s treatment plan. Whereas
PA Valley was licensed and authorized to prescribe medications, CMS Cooper was not
MEMORANDUM DECISION AND ORDER - 25
licensed or authorized to prescribe medication or issue orders for products such as
Metamucil. (Bruce Cooper Affidavit, Dkt. 35-11.)
In response to Defendants’ Motion, Plaintiff argues that he did not allege that CMS
Cooper failed to prescribe him proper medication, but, rather, alleged that CMS Cooper
“delayed” Plaintiff’s treatment “due to Mr. Cooper’s belittling and rude attitude toward
the Plaintiff.” (Dkt. 39-1. p. 3.) Plaintiff theorizes that he was justified in refusing to
interact with or accept medical care from CMS Cooper because Cooper was rude. (Dkt.
39-1, p. 3.) Plaintiff supports his argument by several OCF forms (some of which contain
Plaintiff’s own derogatory and abusive remarks about CMS Cooper), a grievance, and a
letter he wrote complaining that CMS Cooper had a “snarky attitude” and treated inmates
badly. Notably, all of Plaintiff’s complaints arise from a prior time period of March and
April 2010, not August or September 2010. The responses to Plaintiff’s complaints
informed him that he could not pick and choose his medical providers, that Cooper was
assigned to triage all patients’ needs, and that another medical staff person would attend
the next sick call with CMS Cooper to “see what the problem is.” (Dkt. 39-5, pp. 29-33.)
While CMS Cooper’s delivery of medical service in an allegedly rude manner may
not be the most pleasant or effective way to treat patients, it does not amount to deliberate
indifference. Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) (without other
allegations, verbal abuse alone does not amount to a constitutional violation). Nor has
Plaintiff shown a causal link between CMS Cooper’s allegedly bad attitude in March and
April 2010 (or at any time after that) and any failure to provide a constitutionallyMEMORANDUM DECISION AND ORDER - 26
adequate course of treatment to Plaintiff in August and September 2010. Rather, it is
Plaintiff’s own refusal to work with CMS Cooper that would have caused any delays in
Plaintiff’s medical treatment. On this record, Plaintiff has not provided sufficient
evidence from which a jury could find that CMS Cooper knew of or drew an inference of
a substantial risk of harm to Plaintiff’s health, and yet recklessly disregarded that risk. In
addition, as above, Plaintiff also has not provided evidence showing a substantial risk of
harm was present during the time period in which Plaintiff alleges CMS Cooper delayed
his treatment. Therefore, CMS Cooper is entitled to summary judgment.
C.
Plaintiff’s Treatment at ICI-O
(1)
Treatment from October 2010 to February 2011
Plaintiff was transferred to a different prison facility, ICI-O, in October 2010.
Plaintiff saw Nurse Practitioner Rory York for the first time in October 2010 for
constipation complaints. Plaintiff asserts that he told York during the visit that “fiber and
Colace” did not help his constipation. York researched the issue and determined that a
calcium polycarbophil product was the best way to treat chronic constipation. He then
prescribed Fibernorm or Fiber-Lax and Colace. When Plaintiff complained that he
disagreed with the treatment and had told York that these products did not work for him
previously, York responded that he believed it was the only treatment for chronic
constipation, and that the medical providers at the Idaho Regional Provider Meeting
determined that powdered fiber products were not medically necessary and that
constipation could be treated with the fiber capsules.
MEMORANDUM DECISION AND ORDER - 27
Plaintiff did not try the fiber capsules and Colace for a sufficient period (or at all)
to find out if they would work. Neither does Plaintiff point to any place in the medical
records showing that Plaintiff previously tried these products for a sufficient time period
to determine their efficacy. Plaintiff admits that his TBI caused him to confuse time lines,
and there is nothing in the record supporting Plaintiff’s bald statement that fiber and
Colace had not helped him in the past. As a result, Plaintiff has not brought forward
sufficient evidence from which a jury could find that York determined that fiber capsules
and Colace posed a substantial risk of serious harm to Plaintiff and yet prescribed them
anyway. Rather, the record reflects that York relied on the Merck manual to make a
determination of what to prescribe for Plaintiff’s reported symptoms of constipation.
Next, Plaintiff asked for a double mattress memorandum from York. However,
York found no medical need for the request. Plaintiff has not brought forward sufficient
evidence showing that he had a medical need for a double mattress, and that York
exhibited deliberate indifference by not approving one.
Plaintiff next saw Dr. Clayton Bunt, who found no evidence from the bodily
examination of Plaintiff that he was suffering from extreme constipation. On the first
visit, Dr. Bunt felt no palpable stool in Plaintiff’s abdomen that would support the
complaint of constipation, and on the second visit Dr. Bunt noted that Plaintiff reported
he had just had a bowel movement. These objective facts did not support the claims of
severe, painful, ongoing constipation.
Plaintiff told Dr. Bunt that Fiber-Lax and Colace worked the opposite for him, and
MEMORANDUM DECISION AND ORDER - 28
that he would try Lactulose, which is the product he refused from PA Valley at IMSI.
Plaintiff took Lactulose for the first time on December 22, 2010, and, two days later,
Plaintiff complained that it gave him the “ice cream shits,” and said he was going to
refuse to take it after that. Plaintiff took Lactulose several more times after he stated in
writing he would not take it. Plaintiff demanded a bulk-forming laxative, and he was told
that he could have Fiber-Lax, the bulk-forming laxative available in the formulary. He
responded that it did not work for him. On December 30, he submitted an OCF stating
that he had not had a bowel movement in two weeks, which is contrary to his statement
six days earlier that he had taken Lactulose and it made his stool too soft.
Dr. Bunt decided to place Plaintiff on a laxative on a “watch take” basis for 90
days, so that he could obtain an objective study of Plaintiff’s complaints. He found a need
to establish or verify the complaint of constipation, given that Plaintiff had no masses and
continued to refuse laxatives. Dr. Bunt also ordered that Plaintiff be x-rayed if he went
without a bowel movement for six days. (Bunt Aff., Dkt. 35-9, p. 2.)
Plaintiff, in fact, submitted an OCF asking for an x-ray because he had not had a
bowel movement in six days, and Plaintiff was scheduled to see NP York that same day.
However, rather than agree to see NP York so that he could obtain the x-ray that Dr. Bunt
ordered, Plaintiff refused to see NP York but felt he should be taken immediately to the xray unit. In this manner, Plaintiff obstructed his opportunity to obtain an x-ray as ordered
by Dr. Bunt. Plaintiff’s argument that he “refused to see York because it was an
unnecessary step meant to delay the ordered x-ray” (Dkt. 23, p. 9) is merely his own
MEMORANDUM DECISION AND ORDER - 29
opinion and does not excuse his refusal to cooperate with the medical unit in obtaining an
x-ray through NP York. As a result, at that point in time, there was no objective evidence
showing that Plaintiff had an serious, ongoing constipation problem.
Plaintiff also alleges that Dr. Bunt should not have prescribed him a laxative for a
prolonged period of time because over-the-counter laxatives bear a label that they should
not be taken for more than a few days without consulting a doctor. This argument is not
enough to show that Dr. Bunt was deliberately indifferent, because Dr. Bunt is a doctor
consulting with Plaintiff who has the expertise to authorize a longer treatment, and Dr.
Bunt had ordered the laxative for a particular purpose. Nothing in the record shows that
Dr. Bunt treated Plaintiff in a reckless or deliberately indifferent manner during the
limited time period he treated Plaintiff.
Based on the foregoing, Plaintiff has not brought forward facts from which a jury
could find that Plaintiff has met the objective or subjective prong of the deliberate
indifference test as to NP York or Dr. Bunt, based on treatment at ICI-O from October
2010 to February 2011. Consequently, they are entitled to summary judgment.
(2)
Treatment from February 2010 to June 2011
Dr. Petersen was the medical director of the ICI-O medical clinic during the time
period in question. He also provided medical care to inmates at ICI-O. (Dr. Petersen Aff.,
Dkt. 35-13, p. 2.) Dr. Petersen declares by Affidavit that the common causes of
constipation include “inadequate water intake, inadequate fiber in the diet, a disruption of
regular diet or routine, inadequate activity or exercise, resisting the urge to have a bowel
MEMORANDUM DECISION AND ORDER - 30
movement, overuse of laxatives, and certain pain medications.” (Dr. Petersen Aff., Dkt.
35-13, p. 3.) Dr. Petersen states that the main treatment for constipation involves the
increased intake of water and fiber. (Id.)
After Plaintiff refused to take Lactulose, Dr. Bunt ordered Miralax for Plaintiff on
February 11, 2011. Plaintiff thereafter sent in several complaints about NP York and
refused to see York on February 22. On March 1, Plaintiff complained that he never
received the Miralax, and he was told by Defendant Kim Miller that it had not been
approved. Plaintiff then wrote to Miller seeking Metamucil.
Ms. Miller discussed Plaintiff’s OCF complaints with Dr. Petersen on March 8. At
that time, Dr. Petersen did not approve the Miralax, but instead ordered fiber capsules
from the formulary for Plaintiff. After three days, Plaintiff sent in an OCF complaint that
the fiber capsules did not work. Dr. Petersen responded that three days was insufficient to
determine whether the fiber capsules would work.
Plaintiff alleges that Dr. Petersen was deliberately indifferent for ordering fiber
capsules without reviewing Plaintiff’s medical records to see that Plaintiff had previously
stated that fiber capsules did not work for him. However, at the same time Plaintiff was
refusing fiber capsules, he was seeking Metamucil, another form of fiber, through his
OCF complaints. Dr. Petersen responded to Plaintiff’s request for a fiber supplement by
offering a fiber supplement. As noted above, no objective proof of Plaintiff’s complaints
of severe, ongoing constipation were documented in the medical records. Neither was
there documentation showing that Plaintiff previously tried fiber capsules for a sufficient
MEMORANDUM DECISION AND ORDER - 31
length of time to allow medical providers to determine whether they worked. Nor has
Plaintiff provided a medical opinion supporting his contention that no type of fiber
supplement works for him except brand-name Metamucil. Because this was Dr.
Petersen’s first intervention into Plaintiff’s treatment, and there is no evidence in the
record reflecting that any medical records previously documented that fiber capsules
would not work for Plaintiff, the Court concludes that Plaintiff has brought forward
insufficient evidence from which a jury could find that Dr. Petersen determined that fiber
capsules posed a substantial risk of serious harm to Plaintiff and yet prescribed them
anyway.
Plaintiff took the fiber capsules for three days, and then complained that they did
not work. Dr. Petersen responded that Plaintiff needed to take the fiber capsules for more
than three days. As with Dr. Bunt, Plaintiff argued with Dr. Petersen that the box
instructions were contrary to Dr. Petersen’s advice. Plaintiff refused the fiber capsules.
At that point, Dr. Lossmann suggested that Plaintiff be given brand-name
Metamucil, Plaintiff’s fiber of choice, on a watch-take basis. NP York began Plaintiff on
one dosage of Metamucil the next day, March 17, 2011. Plaintiff took one dosage of
Metamucil from March 17, 2011, through March 28, 2011, a period of eleven days, after
which time he requested by OCF to be given two dosages per day because the Metamucil
was working. However, because he did not use an HSR form as he should have, he
continued to receive the single dosage of Metamucil until April 13, an additional period
of ten days, before he submitted an HSR and was placed on two dosages per day.
MEMORANDUM DECISION AND ORDER - 32
Plaintiff alleges that the Metamucil worked great for seven days, but, when he
asked for it to be increased to twice daily, medical providers began giving him generic
psyllium instead. Elsewhere, he alleges that the time period was not seven days, but only
three days, before the brand-name was switched to the generic product. Finally, in his
Response to the Motion for Summary Judgment, he states that the time period that he was
given brand-name Metamucil was approximately 2 or 3 weeks (it appears Plaintiff wrote
3 first, and then overstruck it with 2). (Dkt. 39-2, p. 8.)
Regardless, Plaintiff made no major complaints of constipation during the entire
time he asserts that the generic psyllium was substituted for brand-name Metamucil.
Plaintiff was on one dosage of either Metamucil or generic psyllium from March 17,
2011, through April 13, 2011, a period of twenty-one days, with a report that the product
was “working great,” and no complaints that the product was not working. On April 14,
pursuant to his own request, he began accepting two dosages of the product. Plaintiff’s
acceptance of two dosages of what he alleges was generic psyllium continued for a period
of approximately thirty days without complaint. On May 14, 2011, Plaintiff wrote to the
medical unit that he was beginning an experiment with all of his drugs to determine how
his medications were interacting with one another, but he made no complaints of
constipation. Importantly, on May 14, 1011, he asked that his “Metamucil” prescription
not be discontinued, notwithstanding the fact that he believes the prescription had been
changed to generic psyllium on March 20, March 28, or April 14.
Therefore, during the majority of the time period from March 17, 2011 through
MEMORANDUM DECISION AND ORDER - 33
May, 14, 2011, when Plaintiff received what he alleges is generic psyllium, Plaintiff had
no documented bowel movement complaints during that time period. When Plaintiff
began refusing Metamucil, along with all of his other medications, NP York changed the
Metamucil to an as needed basis.
Dr. Petersen denied Plaintiff’s request for brand-name Metamucil on June 11,
2011. (Dkt. 21-2, p. 3.) Before denying the request, Dr. Petersen researched Plaintiff’s
complaint that he believed generic psyllium had added calcium, which caused
constipation. Dr. Petersen was unable to find any outcome data suggesting that
constipation would result from generic psyllium or that there was any clinical difference
between the generic psyllium and brand-name Metamucil. Dr. Petersen told Plaintiff that,
if he submitted clinical data supporting his contentions about generic psyllium, Dr.
Petersen would review it. Plaintiff did not provide Dr. Petersen with any contradictory
data, nor does he do so here in response to the Motion for Summary Judgment.
Because Plaintiff has not come forward with either sufficient objective or
subjective evidence from which a jury could find deliberate indifference to a serious
medical need of Plaintiff, Defendants NP York, Dr. Bunt, and Dr. Petersen are entitled to
summary judgment for treatment rendered during this time period.
(3)
Treatment from August 2011 to July 2012
On August 3, 2011, upon Plaintiff’s further complaints that he had been
constipated for nineteen days (which Plaintiff now admits was likely only six days), Dr.
Petersen examined Plaintiff and found that Plaintiff had a soft abdomen, normal bowel
MEMORANDUM DECISION AND ORDER - 34
sounds, no tenderness, and that he appeared healthy. Because Plaintiff’s reports that the
fiber products did not work did not make sense, Dr. Petersen ordered an abdominal x-ray
and a stool sample. On October 27, 2011, Dr. Petersen reviewed the x-ray report, which
showed normal colonic fecal content and distribution. The stool sample showed a
moderate white blood cell count. Because Dr. Petersen wanted to check out the white
blood cell count factor, he ordered a colonscopy.
On December 15, 2011, Plaintiff underwent the colonscopy. The colonscopy,
biopsy, and pathology reports were normal, with the biopsy report showing no active
colitis,” and the pathology report showing: “? microscopic colitis, may benefit from low
dosage flagyl.” Dr. Petersen reviewed the colonscopy results with Plaintiff, which Dr.
Petersen characterized as normal with “low grade chronic inflammation, but not
diagnostically precise.” Dr. Petersen then told Plaintiff he did not want to change the
treatment plan until he had spoken to the gastro-intestinal provider. Plaintiff said that he
might refuse to go to the specialist if it involved much time in Boise.
When Dr. Petersen spoke to the specialist, Dr. Petersen was given the advice to get
control of Plaintiff’s complaints of constipation. The specialist also said that he was not
concerned about any serious colonic disorder. Dr. Petersen saw Plaintiff on January 17,
2012, and relayed this information. Dr. Petersen told Plaintiff his bowel issues were
irritating but not dangerous, and that “we have the tools in our formulary to take care of
[your] problem.” Plaintiff sent in various OCFs asking for a comparison of the labels of
the products and questioning the medical providers’ requirement that Plaintiff agree to
MEMORANDUM DECISION AND ORDER - 35
take the product in writing in January and February 2012, but the medical unit held firm.
Plaintiff saw Dr. Petersen again on April 12, 2012, at which time Plaintiff
indicated that he was worried about his infrequent bowel movements, but Dr. Petersen
noted that Plaintiff will still unwilling to take the fiber products offered.
On May 2, 2012, Plaintiff requested fiber powder. Dr. Petersen required Plaintiff
to state in writing that he wanted fiber powder and would take it, and then Dr. Petersen
would order the powder for him. Plaintiff refused to make such a request between May 2,
2012, and July 13, 2012. Plaintiff complained again about constipation on July 13, 2012,
and Dr. Petersen ordered “natural vegetable fiber” for Plaintiff.
On September 17, 2012, after Plaintiff reviewed his medical records received in
discovery in this lawsuit, he noticed that Dr. Meza thought Plaintiff might benefit from a
prescription of Flagyl. When Plaintiff asked NP York about the Flagyl, Plaintiff reports
that York knew nothing about it. York then reviewed Dr. Meza’s records, and prescribed
Flagyl to Plaintiff for ten days. Plaintiff reported that the medication gave him some
relief.
Plaintiff makes a variety of arguments that Dr. Petersen and NP York were
deliberately indifferent to his serious medical needs during this time period. However, the
record reflects otherwise. First, Plaintiff has provided insufficient evidence that any delay
between the time period when Dr. Petersen waited to read the abdominal radiology report
and the colonscopy was scheduled caused Plaintiff serious harm, or that Dr. Petersen
knew or drew an inference that it would place Plaintiff in a substantial risk of serious
MEMORANDUM DECISION AND ORDER - 36
harm if Plaintiff did not receive a colonscopy immediately.
As to Plaintiff’s argument that Flagyl should have been provided to him, but was
not until he asked about it nine months after Dr. Meza suggested it, the record does not
contain sufficient evidence to show that the medication was necessary or that the
providers disregarded this recommendation out of recklessness or indifference. The
record of Dr. Meza is inconclusive. It questions whether Plaintiff has microscopic colitis,
and it states that Plaintiff “might” benefit from Flaygl. Therefore, Plaintiff has failed to
show that he had an objectively serious condition.
Dr. Petersen’s medical records indicate that he spoke to the gastro-intestinal
specialist about the results of the tests and that Dr. Petersen believed the report from Dr.
Meza as to whether Plaintiff had a low grade chronic inflammation was “not
diagnostically precise.” The specialist recommended that Dr. Petersen resolve the
constipation issue, ahead of anything else, and the specialist was not concerned about the
results of the colonscopy. Therefore, while Plaintiff takes issue with the fact that Dr.
Petersen did not implement the recommendation of Dr. Meza for the Flagyl, it is clear that
Dr. Petersen was following a plan to address the constipation first, rather than a
questionable low-grade inflammation, and that Dr. Petersen did not believe that Plaintiff
had a serious condition, in reliance upon the specialist’s opinion and the colonscopy
report results. Dr. Petersen also told Plaintiff that his condition was irritating but not
dangerous, which is further evidence that Dr. Petersen did not act out of recklessness or
deliberate indifference when he did not order Flagyl for Plaintiff, but continued on the
MEMORANDUM DECISION AND ORDER - 37
plan to convince Plaintiff to try generic psyllium for his constipation.
As to NP York’s failure to prescribe Flagyl sooner than he did, Plaintiff himself
has brought forward evidence showing that NP York was unaware of the Flagyl
recommendation until Plaintiff pointed it out from reviewing the medical records in
discovery, and then York immediately prescribed it when Plaintiff sought it. Though the
failure to consider this medication sooner might edge into the realm of negligence, neither
this nor anything else in the record shows that York earlier saw the recommendation,
determined that it would be a helpful prescription, and yet chose to disregard it.
To show he had a serious medical need that was disregarded by his medical
providers, Plaintiff has drawn a large number of conclusions and causal links from the
information in the reports from Plaintiff’s visit to Dr. Meza. However, it is clear from the
record that Plaintiff does not have the medical expertise to draw such conclusions. For
example, Plaintiff argues: “When the colonscopy procedure began, the doctor performing
it – Dr. Michael Meza, M.D. – found a tissue blockage which caused tearing and
bleeding.” (Dkt. 39-4, p. 22.) Similarly, Plaintiff speculates: “The neglect of care by the
defendants quite possibly caused the microscopic colitis and colon tearing. – Colitis is
progressive, – it has to first be microscopic before it turns full blown.”(Id.)
Without any medical support, Plaintiff’s interpretation of the technical reports of
Dr. Meza is mere speculation. Similarly, Plaintiff has not come forward with sufficient
evidence to show that he had a serious medical condition that was ignored by Defendants.
Plaintiff’s verbal reports of long-term constipation are not supported by the evidence in
MEMORANDUM DECISION AND ORDER - 38
the record, including the fact that the stool within his colon seemed normal each time he
was tested – during stool samples, the colonscopy, the abdominal x-ray, and various
physical examinations to check for a build-up of stool in the intestines or colon. Neither is
there objective evidence in the record that Plaintiff has a calcium intolerance, that he took
any fiber product containing calcium for any length of time during the course of his
treatment such that a calcium build-up could have occurred, or that he actually suffered
from a calcium build-up.
In the course of this litigation, Plaintiff has admitted that his TBI causes difficulty
and confusion with time lines. The record reflects that Plaintiff has conveyed a confusing
and inaccurate oral history of how long he has been constipated (admitting that 19 days
was likely only 6 days), or on which dates he had a bowel movement (6 days or 2 weeks
apart), or how long he took a medication (3 days, 6 days, 2 weeks, or 3 weeks). The
record is clear that Plaintiff’s medical providers recognized his contradictory statements
during the course of treating him, whether about the timing of his bowel movements or
the manner in which products affected him, and tried different conservative methods to
resolve his complaints, regardless of his inability to convey an accurate history of them.
The record reflects that the medical providers exercised patience and restraint and
researched some of the propositions that Plaintiff asserted–such as his adamant position
that brand-name Metamucil was significantly different from generic psyllium. Dr.
Petersen ordered several tests to make sure Plaintiff was not suffering from a serious
medical condition, and the tests determined that he was not, with an open question of
MEMORANDUM DECISION AND ORDER - 39
whether he might benefit from a low dosage of Flagyl.
Assuming that Plaintiff has a chronic constipation problem that has not yet been
detected on any examination, x-ray, or colonscopy to date, the record reflects that both
the Metamucil and the substitute generic psyllium worked for Plaintiff for several months
before he stopped taking it so that he could experiment with drug interactions. Because
Plaintiff has failed to provide sufficient evidence that he can meet either the objective or
the subjective prong of the deliberate indifference test, his claims against NP York, Dr.
Bunt, and Dr. Petersen are subject to summary judgment. Plaintiff has not shown that he
is confined under conditions that amount to cruel and unusual punishment.
D.
Kim Miller
Kim Miller was the Correctional Medical Services Supervisor, who received,
researched, and answered OCFs from inmates about medical care issues. She was
involved in Plaintiff’s care over several different periods of time. The Court will address
the time period that is set forth in the Complaint, and then it will address later time
periods for which Plaintiff could submit a supplemental complaint for alleged continuing
violations if permitted by the Court.
In the Complaint, Plaintiff alleges that Kimberly Miller was deliberately
indifferent when she denied his grievance of January 6, 2011, complaining that Dr. Bunt
had prescribed Lactulose that made things worse, and that he had not been able to have a
bowel movement in 19 days. He sought Metamucil or a product similar to it that is not
Fiber-Lax; he wanted a fiber product, not a calcium-enriched product (Fiber-Lax contains
MEMORANDUM DECISION AND ORDER - 40
calcium). (Dkt. 39-4, pp. 1, 5.) Miller had responded that he had been seen and/or his file
reviewed by a nurse practitioner, a doctor, and the regional medical director, who
believed he was given proper treatment for constipation. He was ordered to send in a new
HSR if he had increased problems, and he would be scheduled for a re-evaluation. (Id.)
Ms. Miller’s Affidavit reflects that she reviewed the medical file and discussed
Plaintiff’s case with the medical providers before responding to the grievance. (Dkt. , p.
3.) Because it was clear that the medical providers were attempting to prescribe different
medications to Plaintiff to address his constipation during this time period, and there is no
evidence in the record demonstrating that they were deliberately indifferent to Plaintiff’s
condition, there is nothing in the record suggesting that Ms. Miller was deliberately
indifferent to Plaintiff’s condition. She further advised him to return to the medical unit
for re-evaluation, if he deemed it necessary.
Similarly, as to the OCFs submitted on March 2 and March 7, there is nothing in
the record suggesting that Ms. Miller was deliberately indifferent to a serious medical
need. Rather, Ms. Miller researched why Plaintiff had not received the Miralax
prescription, discussed it with Dr. Petersen (who changed the prescription to fiber
capsules), and relayed that information to Plaintiff, along with the direction to increase
his fluid intake and exercise. Ms. Miller did not have the medical expertise to override or
question Dr. Petersen’s direction, and Plaintiff has not shown that Ms. Miller made any
decision with knowledge of, or in disregard of, an excessive risk to Plaintiff’s health and
safety.
MEMORANDUM DECISION AND ORDER - 41
The remainder of the record shows that Ms. Miller followed the instructions of the
prison and the medical providers in instructing Plaintiff to resubmit HSRs when his
language was disrespectful, in requiring him to use HSR forms to obtain further medical
care, to answer Plaintiff’s OCFs according to her job responsibilities rather than require
the medical providers to answer them, and to follow the instructions of the medical
providers, such as the requirement that Plaintiff agree to take a medication before it was
ordered for him (as a result of his lack of compliance in the past).
Because Plaintiff has not met the objective or the subjective prong of the deliberate
indifference analysis as to Kim Miller, she is entitled to summary judgment on all of
Plaintiff’s claims.
OTHER PENDING MOTIONS
1.
Plaintiff’s Motion for Physical Service Address of Jan Epp
Plaintiff has filed a Motion for Physical Service Address of Jan Epp. (Dkt 33.) The
claims in such proposed Amended Complaints raise the same theories against the
unserved defendants as those asserted against the appearing parties. Such claims,
therefore, regardless of service of process, are also subject to dismissal and could not be
saved by amendment. See Columbia Steel v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th
Cir. 1995) (upholding “dismissal with prejudice in favor of a party which had not yet
appeared, on the basis of facts presented by other defendants which had appeared”);
Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A District Court
may properly on its own motion dismiss an action as to defendants who have not moved
MEMORANDUM DECISION AND ORDER - 42
to dismiss where such defendants are in a position similar to that of moving defendants or
where claims against such defendants are integrally related.”). Therefore, because Jan
Epp would be entitled to summary judgment if she appeared and defended, this Motion is
moot.
2.
Plaintiff’s Motions Regarding Discovery
Plaintiff filed an apologetic but inappropriate ex parte motion informing the Court
of certain discovery disputes. (Dkt. 29.) Plaintiff also filed a Motion to Compel
Discovery, on the same topic as the ex parte motion. (Dkt. 30.) Most recently, Plaintiff
filed a Motion to Withdraw the Motion to Compel, for the reason that he did not first try
to work out the discovery dispute with opposing counsel. (Dkt. 34.) Good cause
appearing, the Motion to Withdraw will be granted, and the other two motions are moot.
The Court notes that the parties’ submissions in this case have been extensive, and no
further discovery is necessary on either side to supplement the record before summary
judgment.
3.
Plaintiff’s Motion for Extension of Time
Plaintiff requested additional time to file his Response to Defendants’ Motion for
Summary Judgment. (Dkt. 37.) Good cause appearing, the motion is granted, and
Plaintiff’s Response, filed on July 29, 2013, was given consideration in summary
judgment decision.
MEMORANDUM DECISION AND ORDER - 43
ORDER
IT IS ORDERED:
1.
Plaintiff’s Motion for Service (Dkt. 33) is DENIED.
2.
Plaintiff’s Ex Parte Motion (Dkt. 29) is MOOT.
3.
Plaintiff’s Motion to Compel Discovery (Dkt. 30) is MOOT.
4.
Plaintiff’s Motion to Withdraw the Motion to Compel (Dkt. 34) is
GRANTED.
5.
Plaintiff’s Motion for Extension of Time to File Response (Dkt. 37) is
GRANTED. The Response filed at Docket No. 39 is considered timely
filed.
6.
Defendants’ Motion for Summary Judgment (Dkt. 35) is GRANTED.
7.
Plaintiff’s Motion for Notice re: Suggestion of Death of a Defendant (Dkt.
41) is MOOT, given that the entire case is subject to dismissal.
8.
Plaintiff’s Complaint, and this entire cause of action, are DISMISSED with
prejudice.
DATED: March 26, 2014
Honorable B. Lynn Winmill
Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 44
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