Shreves v. Piranian et al

Filing 16

ORDER adopting Findings and Recommendations 12 in full. Plaintiff's Amended Complaint 11 is DISMISSED. Any appeal of this decision would not be taken in good faith. This dismissal counts as a strike pursuant to28 U.S.C. § 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 4/28/2015. Mailed to Shreves. (TAG, )

FILED
APR 2 8 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

RICHARD E. SHREVES,

Clerk, U.S. District Court
District Of Montana
Missoula

CV 14--48-H-DLC

Plaintiff,
ORDER
vs.
DR. SCOTT PIRANIAN, TRISTON
KOHUT, LAUREL ANDRECHAK,
SPECTRUM MEDICAL INC., MIKE
FERRITER, MIKE BATISTA,
MEAGEN BOURNE, C. MCGUIRE,
DANIEL TROUPE, DAN CHLADEK,
KRISTY BOESE, BILL MILLER, LIZ
RANTZ, HEIDI ABBOTT, CATHY
REDFERN, and CINDY HINER,
Defendants.
United States Magistrate Judge Keith Strong entered his findings and
recommendations in this case on December 8, 2014, recommending dismissal of
Plaintiff Richard E. Shrives' ("Shreves") claims as either barred by the applicable
statute of limitations or for failing to state a claim. Shreves filed objections to the
findings and recommendations on December 29, 2014, seven days later than
allowed by statute. Nevertheless, the Court will construe Shreves' objections as

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timely and conduct a de nova review of the record. 28 U.S.C. § 636(b)(l). The
portions of the findings and recommendations not specifically objected to will be
reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,

Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "Where a [party's] objections
constitute perfunctory responses argued in an attempt to engage the district court
in a rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(citations omitted). For the reasons stated below, Judge Strong's findings and
recommendations are adopted in full.
Judge Strong found that Shreves' claims arising prior to July 24, 2011 were
barred by the statute of limitations, and that Shreves failed to state a claim upon
which relief may be granted in his remaining claims. Given the abundance of
material submitted with his Complaint, Objections, and subsequently filed
Notices, it is clear the defects cannot be cured by the allegation of additional facts.
The Court agrees with Judge Strong that this matter should be dismissed.
Shreves objects to Judge Strong's findings regarding (1) certain factual
allegations not acknowledged; (2) the dismissal of his claims barred by the statute
of limitations; and (3) his state law claims being dismissed.
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Factual Objections
Shreves objects to Judge Strong's recitation of the factual allegations,
claiming "[t]he omitted facts leave out key circumstances of Shreves' claim."
(Doc. 13 at 21.) Shreves requests that the Court consider the following: an alleged
failure to follow-up by Dr. Piranian (Doc. 13 at 22.); Shreves' complaint that "the
new anomalies from the 12-3-13 x-rays are now congenital or were overlooked in
the 7-14-11 x-rays" (Doc. 13 at 23-24.); Shreves' complaint of back pain on June
15, 2012 (Doc. 13 at 24.); Dr. Kohut's alleged failure to inform Shreves of the
possible side effects of the medication Reglan (Doc. 13 at 25-26. ); Dr. Piranian
allegedly ignored Shreves' request to be seen in November of 2013 (Doc. 13 at
26.); Dr. Kohut allegedly did not process a medical report and labeled Shreves'
pain as "Chronic" (Doc. 13 at 27-28.); Shreves' "possibly incarcerated hernia and
ongoing abdominal pain" (Doc. 13 at 28.); Shreves disagreement with Dr.
Piranan's labeling any future treatment as elective (Doc. 13 at 29); an alleged
failure to note Shreves' "inmate status determining care" (Doc. 13 at 30.).;
weightlifting encouraged (Id.); "[t]he magistrate mentions nothing about
[Defendants] Hiner and Redfern; Shreves would like to rep lead the allegations
against them (Id.); and a December 18, 2014 appointment with Dr. Kohut (Doc. 13
at 31.) The Court will consider these facts in its analysis.
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Statute of Limitations
Judge Strong found Shreves' claims arising prior to July 14, 2011 against
Defendants Miller, Andrechak, Troupe, and Chladek are barred by the applicable
three-year statute of limitations governing personal injury actions in Montana.
Shreves objects to the dismissal of all but Defendant Chladek.

I. Miller
Shreves' objects to the dismissal of Sgt. Miller, stating that because he
initiated mandatory prison grievance procedures on June 4, 2011, the limitations
period was tolled until that grievance process was fully exhausted on September 9,
2011. (Doc. 13 at 9.) Shreves claims this exhaustion requirement extended the
period to timely plead his claims from July 24, 2014, as found by Judge Strong, to
September 9, 2014, and includes the allegations against Sgt. Miller on June 4,
2011. (Doc. 13 at 8-9; citing Brown v. Va/off, 422 F.3d 926, 942-943 (9th Cir.
2005) (the mandatory exhaustion requirement of the Prisoner Litigation Reform
Act ("PLRA") "tolls the 3 year limitation period.")) Shreves "replead[s his] claim
against Sgt. Bill Miller" in his objections. (Doc. 13 at 9.) Shreves alleges that
Sgt. Miller "interferred (sic) with a prescribed treatment plan when he refused to
allow Shreves to go to the infirmary on 6-4-11 per plan and after Shreves
described severe pain." (Id.)
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Shreves is correct that the exhaustion requirement of the PLRA can toll the
limitations period. However, Shreves fails to allege facts establishing that Sgt.
Miller was aware of the pre-existing treatment plan. Thus, the allegation that he
interfered with that plan fails to state a claim, even if it is not barred by the statute
of limitations. Shreves' remaining allegations regarding the "hold-in[s]" on June
23, 2011 and July 5, 2011, and Sgt. Miller's alleged retaliation were not
appropriately grieved through the prison 1 and accordingly are barred by the statute
of limitations.
II. Andrechak and Troupe

Shreves objects to Judge Strong's recommendations regarding Defendants
Andrechak and Troupe based on these and other Defendants' "complete control of
all information, the actions taken to conceal the injury from Shreves, plus the
labeling of 'Chronic pain' without any objective medical findings." (Doc. 13 at
15.) Shreves alleges officials at Montana State Prison "fraudulently concealed the
existence of the cause of action so that plaintiff ... did not learn of its existence."
(Doc. 13 at 15; quoting Hennegan v. Pacifico Creative Serv. Inc., 787 F.2d 1299,
1302 (9th Cir. 1986)). Because of this, Shreves contends his claims against

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Sgt. Miller was not named or even mentioned in the prison grievances related to June 23,
2011 or July 5, 2011.
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Defendants Andrechak and Troupe are not barred by the statute of limitations.
The objections on this point are conclusory and not supported by the record.
There is no evidence to suggest prison staff fraudulently concealed the nature of
Shreves' back injury or that the injury was self-concealing. "Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although required to
take all of the factual allegations in the Complaint as true, this Court is "not bound
to accept as true a legal conclusion couched as a factual allegation." Id.
"A § 1983 claim accrues when the plaintiff knows or has reason to know of
the injury which is the basis of the action." Knox v. Davis, 260 F.3d 1009, 10121013 (9th Cir. 2001). "When the claim is based on an allegation of deliberate
indifference to a serious medical need, the claim accrues when the plaintiff knew
or had reason to know of the defendants' deliberate indifference." Id. Shreves'
claim of deliberate indifference against Defendant Andrechak accrued on May 20,
2006 which was the last date he was seen by medical at Great Falls Regional
Prison. (Doc. 11 at 10.) Shreves' claim of deliberate indifference against
Defendant Troupe accrued on June 20, 2007 when his formal grievance for
"refusing medical care" was resolved. (Doc. 11 at 12-13.) Accordingly, the
claims against Defendants Andrechak and Troupe are barred by the three year
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statute of limitations.

III. All other claims arising prior to July 14, 2011
a. Continuing violations theory
Shreves objects to Judge Strong's recommendation regarding the dismissal
of claims against Defendants Rantz, Kohut, Piranian, Hiner and Ferriter arising
before July 14, 2011 as barred by the statute of limitations based on the continuing
violation theory. (Doc. 13 at 15.) Shreves claims the continuing actions of these
Defendants "are repeated instances of the same nature that make it impossible to
determine exactly when and how much damage has occurred due to their policy of
deliberate indifference and failure to provide adequate medical care." (Id.)
The United States Court of Appeals for the Ninth Circuit has held the
"continuing violations theory applies to § 1983 actions ... allowing a plaintiff to
seek relief for events outside of the limitations period." Knox, 260 F.3d at 1013.
"The doctrine applies where there is no single incident that can fairly or
realistically be identified as the cause of significant harm." Flowers v. Carville,
310 F.3d 1118, 1126 (9th Cir. 2002). However, the Ninth Circuit has "repeatedly
held that a mere continuing impact from past violations is not actionable." Knox,
260 F.3d at 1013.
"In order to establish that the continuing violations theory applies, a
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plaintiff must allege either a serial violation or a systemic violation." Douglas v.

Cal. Dept. of Youth Auth., 271F.3d812, 822 (9th Cir. 2001). A limited number of
Circuit courts have held the continuing violation doctrine applicable to Eighth
Amendment claims of deliberate indifference. See Shomo v. City ofNew York,
579 F.3d 176, 181-182 (2d Cir. 2009); Heard v. Sheahan, 253 F.3d 316, 317-320
(7th Cir. 2001). The United States Court of Appeals for the Second Circuit has
held, "[t]o assert a continuing violation for statute of limitations purposes, the
plaintiff must "allege both the existence of an ongoing policy of [deliberate
indifference to his or her serious medical needs] and some non-time-barred acts
taken in the furtherance of that policy." Shomo, 579 F.3d at 182.
In Watson v. Sisto, the plaintiff suffered from a severely debilitating
degenerative back condition and prison officials repeatedly failed to timely
implement his medical referrals for specialized care. 2011 WL 533716, at *3
(E.D. Cal. Feb. 14, 2011). The court found that the "plaintiffs case involves the
claim that a prisoner health system, as administered by various doctors and staff,
consistently failed to provide adequate care for plaintiffs chronic and deteriorating
back condition. Thus, application of the continuing violations doctrine to the
instant case appears appropriate." Watson, 2011 WL 533716, at* 11. The court
noted, however, that "the impact of applying the doctrine to these facts is di
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minimis, because it implicates only [one] defendant ... and extends the facts of
this case little more than a year." Id.
Distinguishing Watson, Shreves has not demonstrated he is suffering from a

severely debilitating degenerative back condition, nor has he received any medical
referrals for specialized care that the prison has failed to implement. Furthermore,
the impact of applying the continuing violations doctrine to this case is
substantial; its application would extend the facts of the case over a decade and
would include multiple defendants. Nevertheless, even assuming this Court
recognizes a continuing violation allowing Shreves' complaint to include
allegations arising prior to July 14, 2011, after completing a de nova review of the
record, there remains no evidence that Shreves' medical treatment amounts to
deliberate indifference, as discussed in the next section of this order.

b. Deliberate indifference
"[A] doctor is not a warrantor of cures or required to guarantee results."

Asberry v. Beard, 2014 WL 3943459, at *5 (S.D. Cal. Aug. 12, 2014). In Asberry,
the court found that the plaintiff failed to state an Eighth Amendment claim
despite his repeated allegations "that while his doctors provided him with a
wheelchair, a mobility-impaired vest, multiple diagnostic tests, and physical
therapy, they nevertheless acted with "deliberate indifference" because they failed
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to "fix" his lower back." Id.; see also Robinson v. Greer, 1989 WL 57783, at *1
(N.D.Ill. Apr.13, 1989) (finding prisoner failed to state a claim of deliberate
indifference under the Eighth Amendment where officials were alleged to have
"shuffled" the plaintiff, who complained of "spurs on the vertebrae in his neck, a
deteriorating disc in his lower back, and gastric problems of an undetermined
nature," between doctors for "various tests and x-rays," and to have provided
"different kinds of medications, all to no avail," because "[t]he Constitution does
not guarantee a cure for a prisoner's ailments").
Shreves continues to allege that prison medical staff have acted with
deliberate indifference because they have failed to adequately diagnose and treat
his medical problems, even though: (1) his doctors have provided him with at least
three different sets ofx-rays which were reviewed on multiple occasions, once by
a doctor outside the prison system; (2) he was allowed to consult with a physical
therapist; 2 (3) he has been seen on at least thirteen different occasions, three of
which were sit-down discussions regarding the treatment for his back condition;
and, (4) multiple tests were performed with examinations performed by two

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Shreves was referred to and seen by J. Patrick McGillis, a physical therapist at Powell
County Physical Therapy on June 15, 2006. (Exh. # 52-53.) During this visit Shreves was given
a back-stretching regimen and his rehab prognosis was noted as "[g]ood rehab potential to reach
and maintain prior level of function." (Exh. # 52.)
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doctors outside the prison system. Notably, Shreves has admitted that up until
December 2013 he was lifting weights three to four times a week. (Doc. 12 at 14.)
The Court agrees with Judge Strong that, "the fact that the doctors have
determined to treat [Shreves'] back problems conservatively does not establish a
constitutional violation." (Doc 12 at 14.) Additionally, Shreves' disagreement
with the chosen conservative course of treatment does not establish deliberate
indifference. See Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (a
"difference of opinion between a prisoner-patient and prison medical authorities
regarding treatment does not give rise to a[§] 1983 claim"). To establish that a
difference of opinion between medical professionals, or a prisoner-patient and a
medical professional, concerning the appropriate course of treatment amounts to
deliberate indifference, the prisoner must show that the course of treatment chosen
was "medically unacceptable under the circumstances," and that it was chosen "in
conscious disregard of an excessive risk to [the prisoner's] health." Jackson v.

Mcintosh, 90 F.3d 330, 332 (9th Cir. 1996). "Mere 'indifference,' 'negligence,' or
'medical malpractice' will not support this cause of action." Broughton v. Cutter

Laboratories, 622 F .2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429
U.S. 97, 105-106 (1976)).
Absent a showing of an excessive risk to Shreves' health as a result of his
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medical treatment, he has failed to state an Eighth Amendment claim of deliberate
indifference.

State Law Claims
The Court declines to exercise supplemental jurisdiction on Shreves'
Montana state law claims pursuant to 28 U.S.C. § 1367(c)(3) (district court may
decline supplemental jurisdiction if it has "dismissed all claims over which it has
original jurisdiction"). Shreves can attempt to bring these claims in state court if
he chooses.
Because Shreves failed to state a claim, the dismissal of this matter
constitutes a strike under 28 U.S.C. § 1915(g). Additionally, the instant complaint
is frivolous as it lacks arguable substance in law or fact. As such, no reasonable
person could suppose an appeal would have merit. Any appeal of this matter
would not be taken in good faith.
There being no clear error in Judge Strong's remaining findings and
recommendations,
IT IS ORDERED:
1. Judge Strong's Findings and Recommendation (Doc. 12) are ADOPTED
IN FULL.
2. Plaintiffs Amended Complaint (Doc 11) is DISMISSED.
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3. This case is CLOSED. The clerk is directed to close this case and enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
4. The docket shall reflect that the Court certifies pursuant to Fed. R. App.
P. 24(a)(3)(A) that any appeal of this decision would not be taken in good faith.
5. The docket shall reflect that this dismissal counts as a strike pursuant to
28 U.S.C. § 1915(g) because plaintiff failed to state a claim and his claims are
frivolous.
DATED this 28th day of April, 2015.

Dana L. Christensen, Chief istrict Judge
United States District Court

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