Deardorff v. Mahoney et al
Filing
18
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 16 in full. The Amended Complaint is DISMISSED WITH PREJUDICE for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g), and the Court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 12/28/2011. Mailed to Deardorff. (TAG, )
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DEC 28 21l1\
ffY CLERK
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CHAD L. DEARDORFF,
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Plaintiff,
vs.
MIKE MAHONEY, DR. COHUT, DR.
PERANIAN, and DR. JANE DOE,
Defendants.
CV 11·32·H·DWM·RKS
ORDER
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Plaintiff Deardorff has filed an Amended Complaint under 42 U.S.C. § 1983
alleging that the Defendants, the warden of Montana State Prison and doctors on
the prison's medical staff, violated Deardorffs Eighth Amendment rights by
failing to properly respond to and treat a fracture to the C·6 vertebrae suffered
while Deardorff was working at the prison.
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United States Magistrate Judge Keith Strong conducted preliminary
screening ofthe Complaint as required by 28 U.S.C. § 1915(e)(2). Under that
statute, the court engages in a preliminary screening to assess the merits of the
claims and identify cognizable claims, or dismiss the complaint or any portion
thereof ifthe complaint is frivolous, malicious, or fails to state a claim upon which
relief can be granted.
Judge Strong issued Findings and Recommendations in which he
recommends dismissal of the Amended Complaint with prejudice for failure to
state a claim upon which relief can be granted. Judge Strong explained that a
difference of opinion between doctors does not give rise to § 1983 liability, nor is
it enough to allege that doctors made an incorrect diagnosis or otherwise
committed medical malpractice. Judge Strong noted that according to Deardorff's
own allegations, he was seen repeatedly by medical staff, was taken to an outside
medical facility for testing, was referred to a mental health specialist, and was
prescribed medication. Based on those allegations Judge Strong concluded that
the level oftreatment Deardorffreceived, even ifhis allegation that the treatment
was negligent is assumed to be true, does not demonstrate deliberate indifference
because it shows a continuing effort by prison medical personnel to attempt to
treat Deardorff's medical condition. On that basis, Judge Strong recommends that
the Amended Complaint be dismissed.
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Deardorfftimely objected, thereby preserving his right to de novo review of
the record. 28 U.S.C. § 636(b )(1). In his objections Deardorfffocuses primarily
on the allegation that the neck stabilizer he received at Powell County Memorial
Hospital was confiscated upon his return to the prison and not returned to him. In
his objections, Deardorff contends he has a valid Eighth Amendment claim
because the confiscation of his neck stabilizer constituted intentional interference
by prison officials with his medical treatment done for no reason other than to
inflict pain, citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000), and
Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002).
Deardorff's objections are not supported by the allegations in the Amended
Complaint. There he alleges that the neck stabilizer was removed "for security
inspection," and that he was then returned to his cell (without the stabilizer)
because the medical unit was preparing for an incoming emergency. Amended
Complaint (Doc. No. 13) at 7. Deardorff also alleges that "medical personnel[]"
were involved in the removal of neck stabilizer and that Dr. Cohut approved the
removal and confiscation of the stabilizer.
kh at 11-12. These allegations
undermine Plaintiff Deardorff's theories because they show that the confiscation
ofthe neck stabilizer was not done for the sole purpose of inflicting pain, but
rather was done as a security measure and with the approval ofDeardorffs
treating doctor. There is no allegation that prison officials intentionally interfered
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with medical treatment because the stabilizer was removed for security reasons
and was not deemed necessary by Dr. Cohut.
After having received an opportunity to amend his original Complaint to
include additional factual allegations, Plaintiff Deardorff has alleged that he
suffered an injury, that prison medical personnel made repeated attempts to
address the injury (albeit in a manner that Deardorff finds inadequate), and that
prison doctors disagreed with outside medical doctors about the necessity ofthe
neck stabilizer. These allegations do not rise to the level necessary to support a
claim for deliberate indifference under the Eighth Amendment.
Upon de novo review, I agree with Judge Strong's Findings and
Recommendations (Doc. No. 16) and therefore adopt them in full.
Accordingly, IT IS HEREBY ORDERED that the Amended Complaint is
DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER ORDERED:
The Clerk of Court shall have the docket reflect that the dismissal counts as
a strike pursuant to 28 U.S.C. § 1915(g) because Plaintiff has failed to state a
claim upon which relief may be granted;
The Clerk of Court shall close this matter and enter judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure; and
The Clerk of Court shall have the docket reflect that the Court certifies
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pursuant to Fed. R. App. P. 24(aX3XA) that any appeal of this decision would not
be taken in good faith. The record makes plain the instant Amended Complaint is
frivolous as it lacks arguab
DATED this
tl?da
substance in law or fact.
?J.l) c(
. Mol oy, District Judge
Unite States D trict Court
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