Maier v. Frink et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 71 in full. MOTIONS for Summary Judgment 40 , 49 , 57 DENIED. Signed by Judge Donald W. Molloy on 3/30/2016. Mailed to Maier. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MAR 3 O2016
Clerk, U.S. District Court
District Of Montana
LLOYD SCOTT MAIER,
MARTIN FRINK and
This matter comes before the Court on Plaintiff Lloyd Scott Maier's Motion
for Summary Judgment (Doc. 40), Defendant Christopher Rost, P.A.'s Motion for
Summary Judgment (Doc. 49), and Defendant Warden Martin Frink's CrossMotion for Summary Judgment (Doc. 57). Magistrate Judge John Johnston
entered Findings and Recommendations on February 12, 2016, recommending the
Court deny all three motions. (Doc. 71.) Warden Frink and Rost filed timely
objections (Docs. 72, 73), and Maier did not file objections.
On dispositive motions, the parties are entitled to de novo review of the
specified findings or recommendations to which they object. 28 U.S.C. §
636(b)(1 ); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F .2d
1309, 1313 (9th Cir. 1981). Where there are no objections, the court is to give the
level of consideration it deems appropriate, Thomas v. Arn, 474 U.S. 140, 150
( 1985), and this Court reviews for clear error. Clear error exists if the court is left
with a "definite and firm conviction that a mistake has been committed." Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., Inc., 508
U.S. 602, 623 (1993) (internal quotation marks omitted).
Warden Martin Frink
Warden Frink argues that he cannot be held deliberately indifferent because
he properly relied upon the judgment and expertise of medical professionals and
that case law supporting this assertion was not considered in the Findings and
Recommendations. (Doc. 72.) The case law Warden Frink relies on is relevant
and renders the inquiry a closer question, but Warden Frink's objection is
overruled. In Peralta v. Dillard, the Ninth Circuit held that a Chief Medical
Officer was not deliberately indifferent despite having signed off on the plaintiffs
second-level appeal concerning his dental treatment plan. 744 F.3d 1076,
1086-87 (9th Cir. 2014). The court reasoned that because the Officer, who had no
dental expertise, had "ensur[ed] that the proper personnel had signed off on a
reasonable course of treatment," and relied on the medical opinions of the dental
staff who had "investigated" the plaintiffs complaints, the plaintiff failed to show
that the Officer "actually was aware" of any risk the treatment plan posed to the
plaintiffs health. Id. at 1086. Other circuits have similarly held that, absent
knowledge that medical staff are not treating a prisoner, non-medical staff are not
deliberately indifferent for failing to take further action once they have
investigated the prisoner's complaints, verified the prisoner is receiving treatment,
and referred the complaints to medical providers. Greeno v. Daley, 414 F.3d 645,
655-56 (7th Cir. 2005); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
Viewing the record in a light most favorable to Maier, disputed facts
prevent summary judgment here. Although it was proper for Warden Frink to rely
upon medical staff in responding to Maier's two grievance appeals, (Doc. 61 at 4),
and he sufficiently investigated the appeals insomuch as both were granted, (Docs.
41-1 at 6; 37-1 at 2), it is disputed whether the medical department looked at
Maier's hearing aid after the first appeal was granted. Thus, there is a genuine
issue of material fact as to the extent Warden Frink ensured that the proper
personnel had established a treatment plan or verified that Maier was receiving
treatment. Additionally, Warden Frink indicates he was "not directly involved"
and had only an "understanding" that medical personnel sent Maier's hearing aid
for evaluation and then attempted to return it to him, (Doc. 61 at 3-4), and
therefore he may have responded reasonably by granting Maier's appeals given his
limited awareness. Yet the record could support the conclusion that Warden
Frink' s actions of granting the first appeal and directing the second appeal to the
Montana Department of Corrections' health services shows he was aware of an
ongoing violation, of which he had the opportunity and authority to prevent.
Christopher Rost, P.A.
Rost argues that a truncated analysis was used in the Findings and
Recommendations and that, based on the alleged facts, he cannot be found to be a
state actor. (Doc. 73.) Rost's objection is without merit and overruled. Rost
engaged in a public function by tending to Maier at Crossroads Correctional
Center while Maier was involuntarily in custody. It is appropriate to attribute
Rost' s conduct to the state because he performed a function-the provision of
medical services-that the state is traditionally obligated to carry out. West v.
Atkins, 487 U.S. 42, 54-55 (1988); Carl v. Muskegon Cnty., 763 F.3d 592, 596-97
(6th Cir. 2014); Conner v. Donnelly, 42 F.3d 220, 224-25 (4th Cir. 1994).
The Court finds no clear error in the remainder of Judge Johnston's analysis
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 71) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff Maier's Motion for Summary
Judgment (Doc. 40) is DENIED, Defendant Rost's Motion for Summary Judgment
(Doc. 49) is DENIED, and Defendant Frink's Cross-Motion for Summary
Judgment (Doc. 57) is DENIED.
thisJc?~y of March, 2016.
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