Newberry v. State of Montana et al
ORDER ADOPTING 92 FINDINGS AND RECOMMENDATIONS in full; denying as described 29 Motion to Amend; denying 107 , 108 Motion to Appoint Counsel ; granting 140 Motion for Summary Judgment as to all Defendants and all claims; denying all other pending motions. The Court CERTIFIES that any appeal from this disposition would not be taken in good faith. Signed by Judge Dana L. Christensen on 9/8/2021. Mailed to Newberry (TAG)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Cause No. CV 19-50-H-DLC
CINDY McGILLIS-HINER; CONNIE
WINNER; DR. REES; DR. HURST;
WARDEN LYNN GUYER;
REGINALD MICHAEL; and
Plaintiff Newberry filed this action on August 5, 2019. He alleges that
Defendants violated the Eighth Amendment by failing to provide adequate relief
for his back and elbow pain and violated the Americans with Disabilities Act by
failing to provide reasonable accommodations.
Defendants waived service of process and answered on July 13, 2020.
United States Magistrate Judge John Johnston set a schedule for the case, including
a discovery deadline of December 18, 2020, and a motions deadline of January 15,
2021. He later extended the motions deadline to February 22, 2021.
On January 7, 2021, Judge Johnston entered an Order and Findings and
Recommendations (Doc. 92) concerning numerous motions. His rulings remain
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pending for this Court’s review. Since Judge Johnston issued his Order, Newberry
has filed 49 more motions and numerous other documents as well. Defendants
move for summary judgment.
The need to conserve judicial resources is good cause to withdraw reference
of this matter to Judge Johnston. See 28 U.S.C. § 636(c)(4); D. Mont. L.R. 72.2(c)
(Dec. 1, 2019).
I. Findings and Recommendation
Newberry is entitled to de novo review of those findings to which he
specifically objects. See 28 U.S.C. § 636(b)(1)(C). The Court reviews for clear
error those findings to which no party objects. See United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Clear error exists if the Court is left with a “definite and firm conviction that a
mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (internal citations omitted).
A. Motion to Amend Complaint
Judge Johnston permitted Newberry to add one defendant and a claim under
the Americans with Disabilities Act. He recommended denying Newberry’s
motion to add new claims and defendants that are not related to the allegations of
the amended complaint filed on December 19, 2019 (Doc. 6). See Order (Doc. 92
at 6–13, 31 ¶¶ 4–5, 34 ¶¶ 1–2); see also Order (Doc. 5 at 12–13 & n.2.)
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Newberry objects that he should be permitted to proceed on a claim under
the Prison Rape Elimination Act or for “sexual abuse.” See Mot. (Doc. 99) at 2;
Mot. (Doc. 101 at 1–2); see also Order (Doc. 8 at 2) (dismissing PREA claim).
His allegation that a medical provider “winked” at him “in a sexual way,” Am.
Compl. (Doc. 6 at 11), does not state a claim on which relief may be granted under
the Eighth Amendment, PREA, or any other law. See, e.g., Austin v. Terhune, 367
F.3d 1167, 1171–72 (9th Cir. 2004); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.
In motions that could be construed as timely responses to the Findings and
Recommendation, Newberry discusses some of his new, unrelated claims. See,
e.g., Mot. (Doc. 99 at 3) (building codes); Mot. (Doc. 100 at 2) (COVID-19). But
he fails to explain why he believes Judge Johnston erred or why unrelated claims
and defendants should be added to his pleading.
Even on a de novo standard of review, the Court sees no error in Judge
Johnston’s findings or in his recommendation to confine this action to the
boundaries of the amended complaint filed on December 19, 2019.
B. Motions for Injunctive Relief
Judge Johnston also recommended denying Newberry’s requests for
injunctive relief. Newberry no longer resides at Montana State Prison, but he
remains a prisoner, and some of the Defendants hold office with the Department of
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Corrections. Injunctive relief is not mooted by Newberry’s transfer.
Newberry moved for an order allowing him to keep Benadryl on his person
(Doc. 42). He also asked the Court to survey other inmates about their medical
needs (Doc. 42) and monitor the prison’s response to COVID-19 (Docs. 37, 40,
55.) Judge Johnston recommended denying these requests because they are
outside the scope of the pleadings. See Order (Doc. 92 at 16, 18); Pac. Radiation
Oncology, LLC v. The Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015).
Having denied Newberry leave to amend his pleading to add such claims, the
Court finds Judge Johnston’s recommendation is correct.
Excepting one provider Newberry approved (Docs. 27, 35), he sought an
order prohibiting all other Montana State Prison medical providers from treating
him, due to alleged “threats” and “sexual advances” (apparently meaning the wink)
by doctors and staff. See Order (Doc. 92 at 14–16.) Judge Johnston recommended
denying this motion for lack of evidence supporting threats or advances. See Order
(Doc. 92 at 14–16.) Newberry objects by repeating his allegations. See Mot. (Doc.
109-1 at 1–2.) Repetition is not evidence, and threats are not at issue in this case.
Judge Johnston’s recommendation is correct.
Newberry sought an order requiring immediate administration of a spinal
epidural injection containing medications specified by him (Docs. 25, 42) and an
order requiring his transport to an outside “spinal institution” to determine and
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administer the “correct treatment” for his back (Doc. 53). Judge Johnston
recommended denying these motions for lack of evidence supporting Newberry’s
claims that Defendants are deliberately indifferent to his serious medical need for
pain relief. See Order (Doc. 92 at 13–14); see also 18 U.S.C. § 3626(a)(2),
(a)(1)(B)(ii) (requiring injunctive relief to “be the least intrusive means to correct”
a “violation of a federal right”). The Court sees no error in the recommendation,
but the issue is mooted by the ruling below, see Part III(C), on Defendants’ motion
for summary judgment.
C. Plaintiff’s Motion for Summary Judgment
Judge Johnston recommended denying Newberry’s motion for summary
judgment (Doc. 56) because he did not timely file a statement of undisputed facts.
See Order (Doc. 92 at 28.) The motion was properly denied.
Having construed all of Newberry’s timely submissions (Docs. 99, 100, 101,
102, 109, 109-1) as objections, the Court finds no error and adopts Judge
Johnston’s Findings and Recommendations in full.
II. Plaintiff’s Motion for Counsel
On January 25, 2021, Newberry moved the Court to appoint counsel to
represent him. See Mot. (Docs. 107, 108.)1 Newberry did not seek and was not
The caption of Newberry’s supporting brief (Doc. 108) refers to his “second” motion
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granted leave to proceed in forma pauperis. See, e.g., Order (Doc. 3); Notice (Doc.
4); Docket Entry Oct. 25, 2019. However, there is some ambiguity in the record,
see Order (Doc. 7 at 1); Am. Order (Doc. 9) at 1 (both citing 28 U.S.C. §
1915(e)(2)); Mot. for Counsel (Doc. 107 at 1) (citing 28 U.S.C. § 1915(e)(1)). The
Court will consider the motion. Notably, however, Newberry has not shown that
he is financially unable to retain counsel.
A civil litigant is not entitled to the services of counsel at public expense,
see, e.g., Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), but the court may
ask counsel to take a case under exceptional circumstances, see 28 U.S.C. §
1915(e)(1); Agyeman v. Corrs. Corp. of America, 390 F.3d 1101, 1103 (9th Cir.
2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both
the likelihood of success on the merits and the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal
issues involved. Neither of these factors is dispositive and both must
be viewed together.
Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983), and citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Newberry’s case is not so complex as to show a need for the assistance of
counsel. Newberry is not concise, but he is reasonably articulate. He stated claims
sufficient to warrant service of the amended complaint on the Defendants. He also
for counsel. The motion (Doc. 107) appears to be his first.
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received a packet containing the applicable federal and local rules with his service
copy of the Scheduling Order. See Rules Packet (Doc. 13-2.) He did not develop
the factual basis of his case by following those rules. He pursued his own path.
But he also has not shown that a factual basis is likely to exist in view of the nature
of his claims and the high standard of proof under the Eighth Amendment. And
Newberry did not request counsel until a month after discovery closed.
Appointing counsel under these circumstances would unfairly prejudice the
Defendants, who adhered to the schedule, without appropriate justification in light
of the evidence presented. Newberry’s motion for counsel (Doc. 107) is denied.
III. Defendants’ Motion for Summary Judgment
Defendants move for summary judgment as to all claims and defendants.
They assert that Newberry properly exhausted his administrative remedies only as
to two or three narrow claims, so the other claims should be dismissed. They also
contend that Dr. Rees and Dr. Hurst appropriately treated Newberry’s back and
elbow pain; that Newberry fails to show Defendants McGillis-Hiner, Winner,
Scharf (excepting one respect), Michael, or Guyer personally participated in the
alleged violations of Newberry’s rights; and that Newberry’s ADA claims should
A. Summary Judgment Standards
The Court will grant summary judgment if the moving party shows “there is
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no genuine dispute as to any material fact” and it is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute as to a material fact is genuine if there is sufficient evidence for
a reasonable juror to return a verdict in the non-moving party’s favor. Id.
Once the moving party submits evidence demonstrating the absence of a
genuine dispute of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), the burden shifts to the non-moving party to show the existence of a
genuine conflict in the evidence or in its interpretation, see Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Just as the moving party
must produce evidence, the non-moving party also must “go beyond the pleadings”
and point to evidence—that is, “depositions, answers to interrogatories, . . .
admissions on file,” and the like—to “designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ.
P. 56(e), now 56(c)(1)).
B. Failure to Exhaust Administrative Remedies
Before bringing a claim for relief to court, a prisoner must exhaust
administrative remedies made available to him at the prison. See 42 U.S.C. §
1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S.
731, 739 (2001). “Exhaustion requirements apply based on when a plaintiff files
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the operative complaint.” Jackson v. Fong, 870 F.3d 928, 935 (9th Cir. 2017).
Generally, the prisoner must follow the prison’s grievance procedure, see
Woodford v. Ngo, 548 U.S. 81, 88 (2006), but “the primary purpose of a grievance
is to alert prison officials to a problem,” Jones v. Bock, 549 U.S. 199, 219 (2007)
(quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)). Therefore, if the
prison addresses a grievance despite a prisoner’s failure to follow the rules, the
exhaustion requirement may be satisfied. See, e.g., Reyes v. Smith, 810 F.3d 654,
657–58 (9th Cir. 2016).
The prisoner must show that he appealed any denial of relief to the highest
level available; that he either complied with the procedural rules or that prison
officials “render[ed] a decision on the merits of the grievance” despite the
prisoner’s failure to comply with the rules; and that the grievance “provide[d]
administrators with a fair opportunity under the circumstances to address the
problem that will later form the basis of the suit.” Johnson, 385 F.3d at 522.
“[A] defendant must first prove that there was an available administrative
remedy and that the prisoner did not exhaust that remedy.” Williams v. Paramo,
775 F.3d 1182, 1191 (9th Cir. 2015). Defendants point out that Newberry’s
grievances generally failed to identify the persons involved in the matters he
complained of. See, e.g., Grievance No. 11941 (Doc. 142-18 at 21); Defs. Br.
(Doc. 141 at 12.) The Ninth Circuit addressed this situation in Reyes. There,
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contrary to a California rule requiring that an inmate’s grievances must “name all
staff members involved in his case,” the inmate failed to name the prison
physicians who denied him narcotic pain medication. Reyes, 810 F.3d at 657.
Following seven other federal appellate courts, the Ninth Circuit held that “a
prisoner exhausts such administrative remedies as are available . . . despite failing
to comply with a procedural rule if prison officials ignore the procedural problem
and render a decision on the merits of the grievance at each available step of the
administrative process.” Id. at 658 (internal quotation marks and citation omitted);
see also, e.g., Maddox v. Love, 655 F.3d 709, 721–22 (7th Cir. 2011); Reed-Bey v.
Pramstaller, 603 F.3d 322, 324–26 (6th Cir. 2010), discussed and followed in
Reyes, 810 F.3d at 658. In other words, if prison officials find the grievance
acceptable and address it despite its flaws, a court will not find the plaintiff failed
Montana, like California, requires prisoners to “[n]ame the person(s) you are
grieving.” See, e.g., Defs. Ex. I (Doc. 142-18 at 1–2) (Instructions). As in Reyes,
Defendants here have not shown that they rejected Newberry’s grievances for
failure to name names. See, e.g., id. at 1–3; Defs. SUF (Doc. 142 at 29–30 ¶ 98,
30–33 ¶¶ 100–107.) Consequently, Newberry’s failure to comply with the rule
does not entitle Defendants to summary judgment.
Defendants mistakenly argue that Newberry had to complete exhaustion
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before August 5, 2019, rather than before December 19, 2019—the date of the
operative pleading, that is, the amended complaint. Nonetheless, their exhibits
demonstrate that Newberry appealed to the highest level his complaints regarding
inadequate management of his back pain. He requested additional spinal epidural
injections, a cushion for sitting, and lower bunk and lower tier restrictions, see
Grievance Nos. 11488, 11565 (Doc. 142-18 at 1–9), as well as gabapentin,
Vicodin, Kenalog, or a “narcotic nerve blocker,” Grievance Nos. 11940, 11941,
11997, 12165 (Doc. 142-18 at 17–31, 38–43.)
Newberry also pursued grievances seeking treatment, X-rays, and
consultation with an outside specialist to address his elbow injury. He did not
appeal the decisions concerning treatment and X-rays, but he received the
treatment and X-rays (and explanation of them) that he requested. No appeal was
Newberry was denied consultation with an outside specialist regarding his
elbow and apparently did not appeal that decision. See Grievance No. 11556,
11872, 11998 (Doc. 142-18 at 10–16, 33–34, 72–73.) In addition, he apparently
did not request surgery for either his back or his elbow. But, at least where a
medical issue is concerned, Defendants cannot obtain dismissal of the case by
showing that Newberry failed to appeal denial of a specific medical solution. If,
for example, hospitalization for tests is the only appropriate medical response to a
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prisoner’s complaint, he cannot be barred from suing because he grieved lack of
treatment but did not request tests or hospitalization. The exhaustion requirement
does not require inmates to be doctors. Its purpose is “to alert the prison to a
problem and facilitate its resolution, not to lay groundwork for litigation.” Griffin
v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).
The question is whether Newberry’s grievances fairly “alert[ed] the prison to
the nature of his problem.” Id. at 1121. Newberry certainly alerted the prison that
he did not believe he was receiving adequate medical care for his back pain or his
elbow. Further, he did so before he filed his amended complaint in December
Defendants are not entitled to dismissal of Newberry’s claims based on his
alleged failure to exhaust administrative remedies. This portion of the motion for
summary judgment is denied.
C. Eighth Amendment Violations
1. Applicable Standards
An Eighth Amendment claim alleging inadequate medical care has two
elements. First, a plaintiff must show that he had a “serious medical need,” and
second, he must show that the defendant responded to it with “deliberate
indifference.” See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
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A serious medical need exists if failure to treat the plaintiff’s condition could
cause further significant injury or “the unnecessary and wanton infliction” of pain.
See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle). To be
deliberately indifferent to such a need, a defendant “must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). The plaintiff must also show that the defendant’s deliberately
indifferent acts or omissions caused additional or continuing harm. See, e.g., Jett,
439 F.3d at 1096.
Colwell provides a useful comparison to Newberry’s case. Due to a cataract,
Colwell was blind in his right eye. He was unable to obtain surgery to remove it
because Nevada’s Department of Corrections believed that one good eye was
enough for an inmate. Noting medical providers’ uniform finding that blindness in
one eye is a serious medical condition, the panel said Nevada’s policy was “the
very definition of deliberate indifference.” Colwell, 763 F.3d at 1068. “As long as
the eye remains untreated, Colwell continues to suffer blindness in his right eye,
which is harm in and of itself, along with all of the other harms and dangers that
flow from that.” Id.
No one could dispute that Newberry sought treatment for pain. Like
Colwell, an inmate who is experiencing chronic or lasting pain will, without some
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alleviation, “continue to suffer” pain, “which is harm in and of itself.” Colwell,
763 F.3d at 1068. But Colwell also differs from Newberry’s case in important
ways. Both Colwell’s blindness and its cure were obvious. He had a cataract.
Surgically removing it would restore his sight. When an inmate seeks relief of
chronic pain, the degree of his pain is difficult for a provider to ascertain, and the
most effective and least risky way to control or end it is not obvious. These facts
are significant because “[a] difference of opinion between a physician and the
prisoner—or between medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681
F.3d 978, 987 (9th Cir. 2012).2
In Snow, some of the doctors who examined the inmate, and all the
specialists, recommended total hip replacement surgery based on “severe
degenerative changes in both of [Snow’s] hips.” Id. at 983. At one point, the
recommendation became urgent. Snow was taking such high doses of pain-control
medication that his kidneys began to fail, a “potentially life threatening” situation.
Id. at 983–84. Two prison physicians dealt with that problem by putting Snow on
Tylenol, codeine, an analgesic balm, and a daily dose of oxycodone. See id. at
984. Even with those medications, however, Snow had so much pain he could
Snow was overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th
Cir. 2014) (en banc).
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walk only a few feet without support. He had not been able to go outside for two
years, and he had “extreme difficulty” getting dressed. See id. Guards were
prohibited from restraining him with ankle chains or ordering him to kneel. See id.
at 983. Yet surgery was denied by a committee that “either gave no reason at all,
or flatly told Snow that they would not approve any requests for joint replacement
surgery.” Id. at 986.
The court held that the case did not necessarily reflect a mere difference of
medical opinion. A reasonable jury could find “that the decision of the nontreating, non-specialist physicians to repeatedly deny the recommendations for
surgery was medically unacceptable under all of the circumstances.” Id. at 988.
In Newberry’s case, therefore, the question is whether the treatments he
claims were lacking—narcotic pain medications and surgery for his back and
elbow, and physical therapy, bunk- and tier-restrictions, and a seat cushion for his
back—were, first, so superior to the treatment he received that failing to provide
them caused him “harm by the refusal [or delay] of treatment” as he requested,
see Colwell, 763 F.3d at 1068, Jett, 439 F.3d at 1096; and, if so, whether a
defendant knew that Newberry could not achieve adequate pain relief by way of
the measures actually taken, see Farmer, 511 U.S. at 837.
Defendants neither concede nor deny that Newberry’s pain was always a
serious medical need. They argue, however, that they were not deliberately
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indifferent to his expressed needs for pain relief.
2. What Treatment Did Newberry Receive?
Newberry arrived at the prison in 2018 with chronic back pain from a
preexisting injury.3 In late November 2018, he injured his elbow in a fall. As
relevant to the Defendants, Newberry received treatment for these two distinct
conditions between August 2018 and early spring of 2020. He received treatment
for other issues, too, such as allergies and hypertension. Those visits are not
included in the following chronology. After December 2019, Newberry refused to
see Dr. Rees or Dr. Hurst, the principal defendants involved in these allegations.
Defendants’ affidavits and corresponding exhibits show the following.
Dr. Rees met Newberry on August 10, 2018. Rees noted Newberry’s
chronic back pain, prescribed 200 milligrams of Celebrex twice daily as needed for
pain, and requested Newberry’s medical records for review. See Rees Aff. (Doc.
142-3 at 6 ¶ 13); Defs. Ex. B (Doc. 142-11 at 9–11); see also Rees Aff. at 3 ¶¶ 5–6.
On August 23, 2018, someone noted that Newberry should be seen regarding
his request for an epidural injection. See Defs. Ex. B at 9.
On September 27, 2018, Rees saw Newberry. Newberry asked to be
Newberry claimed this injury occurred when he slipped on icy steps at the prison in
2009. See Am. Compl. (Doc. 6 at 5 ¶ IV(A)). This incident appears to be the root of several
claims he was not permitted to add to his pleading, concerning building codes, OSHA
compliance, and so forth. He was released from prison in 2016 but returned in 2018.
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referred immediately to Brian Bradley, a certified registered nurse anesthetist, for
an epidural injection. See id. at 38. Newberry said it had been two years since his
last injection, and records confirmed the last occasion was December 15, 2016.
See Defs. Ex. B at 85–88. Rees scheduled a review of Newberry’s chart to
examine his MRIs and to arrange a phone conference with Bradley. In the
meantime, to relieve Newberry’s pain, Rees administered an intramuscular
injection of methylprednisolone sodium succinate. He also discontinued the
Celebrex and prescribed 800 milligrams of ibuprofen three times daily as needed.
See Rees Aff. at 6–7 ¶ 14; Defs. Ex. B at 38; Defs. Ex. A (Doc. 142-10 at 3.)
On November 5, 2018, Newberry kited4 another demand to see Bradley. See
Defs. Ex. I at 1. On November 10, he asked for an appointment to “resolve my
mental health + drug addictions problems + my PSDT symptoms.” See Defs. Ex. I
At some point, see, e.g., Defs. Ex. B at 8, Rees reviewed Newberry’s chart
and consulted with Bradley. On November 8, 2018, he referred Newberry to
Bradley for an epidural injection. See Rees Aff. at 7 ¶ 15; Defs. Ex. B at 8. Rees
attests that he “did not dictate or determine any medications administered by
Bradley.” Rees Aff. at 8 ¶ 18. Dr. Hurst attests that he “had no role in the
In this section, the generic term “kited” indicates that Newberry expressed a medical
need. Except where noted, the form used, the recipient, and the level of the grievance process
are not relevant.
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determination of Bradley’s treatment.” Hurst Aff. (Doc. 142-4 at 2 ¶ 15.)
On November 29, 2018, Newberry kited, “Due to my back injury,5 the other
day I was in so much pain I fell off my chair and landed on my right elbow. Now
my elbow is swollen; I cannot bend my elbow, and the pain is severe.” On
December 1, he was told he would be scheduled to see someone. See Rees Aff. at
14–15 ¶¶ 43–44; Defs. Ex. B (Doc. 142-11 at 42.)
On November 30, Newberry kited for a monthly epidural and pain
medications because he had “not received any pain meds for the back pain.” Defs.
Ex. I at 5. On December 1, Newberry kited the dentist for “adequate pain
medication” for tooth pain. Id. at 52.
Also on December 1, Newberry saw a nurse about his elbow. She recorded
that he had injured it two weeks previously and described it as “throbbing,”
“tender” and “annoying.” Noting he was already taking ibuprofen for his back
pain, the nurse told him to continue it, alternate ice and heat on the elbow, and send
another kite if his symptoms worsened or did not improve. She also said she
would schedule Newberry with a doctor within ten days. See Rees Aff. ¶ 43; Defs.
Ex. B at 43.
On December 7, 2018, Newberry received epidural injections from Bradley.
In his complaint, Newberry said he injured his elbow by curling weights at the gym. In
his amended complaint, he said the chair he was sitting in “gave out.” See Compl. (Doc. 1 at 7);
Am. Compl. (Doc. 6 at 10.)
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See Rees Aff. at 7 ¶ 17; Defs. Ex. B at 62–66.
On December 8, 2018, Newberry said he was experiencing tingling and
numbness in his right arm and needed “treatments pain meds therapy.” He also
said his right elbow was swollen and he “must have hurt it sometime.” A nurse
saw him on December 9 and referred him for an appointment with a doctor. See
Defs. Ex. B at 44–45.
On December 9, Newberry kited to see a doctor for an x-ray, an ace
bandage, pain medication, and physical therapy for his elbow. See Defs. Ex. I at
Dr. Hurst saw Newberry on December 13, 2018. Newberry asked for an xray and “pain pills.” Defs. Ex. B at 37. Dr. Hurst attests that, with “nothing
accomplished,” he terminated the appointment due to Newberry’s behavior. See
Hurst Aff. (Doc. 142-4 at 2 ¶ 10); Defs. Ex. B at 37; see also id. at 107 (Newberry
states Dr. Hurst “refused service”).
The same day, December 13, Newberry submitted a kite stating he had
waited four weeks to see someone and was told he was “hyper” when he finally
saw a doctor. He asked to see a different doctor and said he had numbness in his
right hand, pain in his right elbow, and his “right hand is swollen all the time.” A
week later, he was told he was scheduled to see someone. See Defs. Ex. B at 109.
He also kited a request to be “seen as soon as possible, relieve pain with meds, a
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cat scan.” See Defs. Ex. I at 11.
On December 24, 2018, Newberry submitted another kite asking to be seen
for his elbow. A nurse saw him on December 25. He told her he hit his elbow on
concrete six weeks earlier, had an abortive appointment with Dr. Hurst, and wanted
to see a provider again and get an x-ray. On a scale of 1 to 10, he rated his pain as
a 10. The nurse noted no swelling or discoloration, a slightly decreased range of
motion, slight swelling, and a normal or strong pulse above and below the joint, all
indicating a referral was not needed. She checked a box marked “severe
pain/edema” as the reason for referral, referred him to a doctor, and noted he was
requesting x-rays. See Defs. Ex. B at 41.
Three days later, on December 27, 2018, Dr. Rees saw Newberry for a
chronic-care appointment concerning hypertension. Rees noted that Newberry
“had epidural.” Rees avers that Newberry told him of his elbow pain, but Rees
was not aware the pain followed an injury. Rees diagnosed medial epicondylitis
(which the Court understands to be tendon or muscle pain), discontinued the
ibuprofen, and put Newberry on Celebrex twice a day as needed. See Rees Aff. at
16 ¶ 48; Defs. Ex. B. at 89.
Three days after that, on December 30, 2018, Newberry wrote a kite stating
that he had made numerous requests to see someone regarding his elbow injury and
“still ha[d] not seen a provider!!!” He asked to see an outside provider because
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“MSP cannot seem to take care of this problem!” He said he had “numbing of the
hand and I cannot bend my arm!” He was told he was scheduled. See Defs. Ex. B
On January 12, 2019, Newberry kited to see Bradley “for follow-up,
different chair in my room, extra blankets, narcotics for pain.” See Defs. Ex. I at 2.
He also kited for an “x-ray, pain management, Tommy Copper ban” for his elbow.
See Defs. Ex. I at 12.
On January 16, Newberry kited again, saying he had seen Dr. Hurst but “he
refused service to my arm” and his elbow was still painful. He was told he would
be rescheduled. See Defs. Ex. B at 107. He also kited for a follow-up with
Bradley, who wanted to see him “for pain discussions.” See Defs. Ex. I at 6.
On January 26, Newberry kited that the Celebrex was not working. He
asked to be put back on ibuprofen and to see “a pain specialist in Anaconda to put
a morphine pump in my back.” See Defs. Ex. I at 61.
On January 31, 2019, Newberry saw a nurse. He reported that his back pain
was “unchanged” and said he was supposed to return to Bradley a month after his
December 7 appointment. See Defs. Ex. B at 35; see also id. at 65 (Bradley’s
notes indicating Newberry was “scheduled to follow up at my clinic in one
month”). The nurse also noted tenderness and inability to fully extend the elbow.
She discontinued the Celebrex, returned Newberry to ibuprofen, and ordered an x21
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ray of the elbow. See Defs. Ex. A at 6, Ex. B at 7, 35, 61.
Newberry was scheduled to have the x-ray on February 2, 2019. Dr. Rees
explains that x-rays are performed by an outside provider, Big Sky Mobile
Imagining, which comes to the prison “several times per month.” See Rees Aff. at
21 ¶ 52. For unknown reasons, the appointment was rescheduled for March 21 and
then April 4, 2019. See Defs. Ex. B at 47–48.
On February 13, 2019, Newberry kited for another epidural and “a narcotic
med at PRN only when needed.” See Defs. Ex. I at 3. He also kited that “in 13
weeks I have not been seen for the pain” in his elbow, said Celebrex did not work,
and again requested a copper band. See Defs. Ex. I at 13. And he kited another
request for dental care as he was “tired of this continual pain!!” See Defs. Ex. I at
On February 20, 2019, Newberry saw Bradley again, apparently for a
consultation. According to Bradley’s notes, Newberry said the December
injections did not provide enduring relief. He reported “moderately severe sleep
disturbance and daytime pain” with particular difficulty climbing stairs. He also
said he was using ibuprofen “when necessary . . . along with Celebrex.” Bradley
planned to repeat the injections, recommended 300 milligrams of gabapentin at
bedtime, and noted he would “like to see [Newberry] on a lower bunk and on the
lowest floor as to avoid stair climbing.” Defs. Ex. B at 57–58; see also Rees Aff.
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at 8 ¶ 20.
On February 21, 2019, Newberry kited that the prison “failed to provide
proper medical care, + proper pain meds.” Defs. Ex. I at 7.
On March 1, 2019, Newberry asked to see “an outside bone specialist” for
his elbow. He said his “arm is not improving and worse and worse, continual pain
and I can hardly use the arm” and it “wakes me up with pain.” The response noted
he had been evaluated after the injury by Dr. Hurst, there was no order for a
specialist referral, and he would be monitored and evaluated by MSP providers.
See Defs. Ex. B at 106.
On March 6, Newberry kited his refusal to see Dr. Hurst and asked to see “a
bone specialist on the outside, get real pain meds, + a brace for my arm.” Defs.
Ex. I at 14.
On March 11, 2019, Newberry kited for an epidural and was told he was
scheduled for one. See Defs. Ex. B at 105.
On March 26, 2019, the Special Needs Committee (“SNC”) met and
discussed Newberry’s requests for a lower-bunk and lower-tier cell designation
and a seat cushion. It denied all three requests. Newberry was advised he could
direct his bunk and tier requests to his unit manager. See Scharf Aff. (Doc. 142-7
at 11–12 ¶ 32–36); Defs. Ex. C (Doc. 142-12 at 6.)
Also on March 26, Newberry submitted a grievance requesting a “narcotic
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nerve blocker” as “prescribed” by Bradley. His request was denied. See Defs. Ex.
I (Doc. 142-18 at 17); see also Reich Aff. (Doc. 142-8 at 9 ¶ 32.) He also kited a
demand for another epidural. See Defs. Ex. I at 20.
On March 28, 2019, Newberry received from Bradley the same injections he
had received on December 7, 2018. See Rees Aff. at 8 ¶ 21; Defs. Ex. B at 50–56.
Bradley noted that he obtained a “better dye flow study today” and Newberry
“should do well.” Bradley administered “no opioids or benzo’s” but recommended
300 milligrams of gabapentin per day, up to 1200 milligrams, for “neuropathic
pain.” Defs. Ex. B at 50.6
On March 29, Newberry kited a “reflection of when Dr. Hurst ordered me
out of his office” and asked to see an outside provider “due to over 20 weeks of
inaction, no x-rays, no elbow bands.” See Defs. Ex. I at 15.
On April 2, 2019, Newberry asserted his right arm had been painful for 21
weeks and he had had no x-ray, brace, or pain medications. He stated that antiinflammatory medication (and an illegible word, possibly Celebrex) did not help.
He again asked to see an outside provider. The response noted he would have an
x-ray on April 4. See Defs. Ex. B at 104.
It appears that someone later wrote on the record, on March 29, 2019, “gabapentin not
an option in DOC cymbalta or trileptal will be used.” Defs. Ex. B at 50. Another handwritten
note indicates there were “no objective findings” suggesting lumbosacral radiculopathy at L5 but
“subj. radiculopathic symptoms” were present. Id. at 52.
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Also on April 2, Newberry said the epidural administered on March 28 “did
not work” and asked, “Did they not put any pain reliever in the epidural and just
put steroids?” He was told he had an appointment pending. See Defs. Ex. I (Doc.
142-18 at 32.)
Three x-rays of Newberry’s elbow were taken on April 4, 2019. Newberry
had a “well-corticated ossific fragment” from an “old avulsion fracture.” Dr. Rees
attests that “[a]vulsion fractures typically require no treatment except antiinflammatories and alternating ice and heat,” as had been prescribed in December
and January, rather than surgical intervention. See Rees Aff. at 17 ¶¶ 55–56; Defs.
Ex. B at 90.
On April 4, 2019, Newberry’s unit manager granted his request for a lowertier cell and a lower bunk. See Bouley Aff. (Doc. 142-9 at 2–3 ¶¶ 6–9.)
On April 10, Newberry filed two grievances and an informal resolution form
concerning his back pain. All three demanded another epidural, “one that has the
medication of years ago when they actually worked,” because the March 28
injection “did not work.” Newberry said his “neuro-surgeon ordered a nerve
blocker for me,” gabapentin.7 See Defs. Ex. I at 18, 21, 35.
In response, on April 24, Newberry was told another epidural was “not medically
indicated” and a “new treatment plan” had been initiated. On May 3, he was told he had a
follow-up appointment scheduled and was “on a medication for nerve pain called trileptal.
Please give it time to work.” Grievance Forms (Doc. 142-18 at 18, 21.)
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Rees saw Newberry on April 15, 2019. They discussed only his back pain.
See Defs. Ex. B at 6, 34. Rees’s notes indicate that Newberry said he received “no
relief whatsoever” from Bradley’s March 28 injections and requested another
appointment with him. Newberry also said Cymbalta did not work for him. Rees
noted he would try trileptal instead of gabapentin and Cymbalta. See Defs. Ex. B
at 34. Rees attests that gabapentin is prone to abuse by persons who may hoard or
misuse it and trileptal is “a superior neuromodulator, based on clinical trials.”
Rees Aff. at 8–9 ¶ 22. Rees scheduled a follow-up in six weeks to assess
Newberry’s response. See Defs. Ex. B at 34.
On April 17, Newberry kited again to see an outside provider for his elbow
and stated he had “had this pain for 6 months.” See Defs. Ex. I at 16. On April 30,
Newberry submitted two grievances demanding the same “spinal epidural that I
had years ago.” Defs. Ex. I at 27, 37.8
Dr. Rees asserts that he asked, on May 5, 2019, that Newberry be scheduled
to see him to discuss the elbow x-rays, see Rees Aff. at 18 ¶ 57 (citing Defs. Ex. B
at 6), although the exhibit does not appear to say so. Regardless, on May 11, 2019,
Newberry saw a nurse and again reported his elbow pain at 10 on a scale of 1 to
10. The nurse noted limited range of motion and crepitus and referred Newberry to
The response noted that ibuprofen and Tylenol were available through the canteen and
also that Newberry was “on medications to alleviate discomfort.” Defs. Ex. I at 27.
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see a provider within ten days. See Defs. Ex. B at 39.
On May 14, Newberry submitted three kites. He said the trileptal was not
working and that Dr. Rees had said in mid-April another epidural would be
scheduled but none had occurred. He said he had “severe daily problems walking,
sneezing, coughing, laughing, etc.” He asked, “If I am being monitored as medical
claims, then why am I never seen?” See Defs. Ex. I at 19, 22, 28.
On May 17, Newberry saw a nurse concerning his allergies. He asked for a
follow-up appointment to discuss the x-ray results and another spinal epidural for
his back. The nurse asked that both issues be scheduled. See Defs. Ex. B at 5, 33.
On May 23, Newberry submitted an informal resolution form saying that, on
April 15, Rees had “said he was going to order me off site to see Dr. Bryan for
another spinal epidural” “like Dr. Kohut and Dr. Piranian prescribed which had
actual pain medicine in it!” Defs. Ex. I at 38.
Newberry was scheduled to see a provider on May 31, but the appointment
was reset for June 18 due to a lockdown. See Rees Aff. at 18 ¶ 58; Defs. Ex. B at
32. On June 11, 2019, Newberry was told he was “scheduled with a provider to
discuss” his complaint of May 23. See Defs. Ex. I at 38.
On June 13, Newberry submitted an “Emergency Grievance to Command
Post” stating that, on May 15, 2019, the Warden had approved his request for a
spinal epidural with pain medication in it. See Defs. Ex. I at 36. On June 15, he
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again stated, “I want a spinal epidural with pain medication in it. Enough
discussing!! It’s over!” Defs. Ex. I. at 39. On June 17, the response to the June 13
grievance indicated the situation was not an emergency and Newberry was
scheduled to see a provider to address his back pain. See Defs. Ex. I at 36.
Rees saw Newberry on June 18, 2019. Newberry said he had stopped taking
the trileptal because it did not work. He requested another appointment with
Bradley. Rees referred Newberry for treatment by Bradley. See Rees Aff. at 9 ¶
23; Defs. Ex. B at 4, 29, 31. Newberry did not mention his elbow and, when Dr.
Rees attempted to talk to him about the x-rays, declined to discuss the subject. Dr.
Rees scheduled a follow-up for six weeks later. See Rees Aff. at 18 ¶ 59; Defs. Ex.
B at 31, 29.
On June 20, Newberry filed a grievance appeal requesting “a stronger pain
medication such as Vicodin, or lowertabs [Lortab] . . . which I can take at PRN.”
Defs. Ex. I at 23.
On July 10, 2019, Newberry submitted a grievance appeal seeking
clarification of whether he was going to receive a spinal epidural with pain
medication in it or not. He concluded, “All I want is simple – (Pain Relief)!!”
Defs. Ex. I at 40.
On July 12, 2019, Newberry met with a nurse. They discussed the elbow xrays. Newberry reported discomfort with some movement and requested an
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orthopedic consult. The nurse discussed the issue with Dr. Rees and scheduled a
chart review. See Rees Aff. at 19 ¶ 60; Defs. Ex. B at 28.
On July 20, Newberry said he was told he had an appointment with Bradley
but had been waiting five weeks and two days. See Defs. Ex. I at 44.
On July 26, 2019, Rees saw Newberry. Newberry again requested another
appointment with Bradley. Rees had already referred him and also consulted with
Bradley himself. Rees administered two intramuscular injections, including
Kenalog, for pain relief. See Rees Aff. at 9 ¶ 24; Defs. Ex. B at 4, 27; Defs. Ex. A
at 13–14; Defs. Ex. I at 40. Based on Newberry’s continued pain and request to
see an orthopedic surgeon about his elbow, Rees attempted to call Dr. Bertrand
Jones in Anaconda but was unable to reach him. He asked that another chart
review be scheduled for the “week that I get back ~ 8/8/19” to follow up on the call
to Dr. Jones. See Rees Aff. at 19 ¶ 61; Defs. Ex. B at 3, 27.
On August 7, 2019, Newberry submitted a grievance appeal stating he had
received “spinals with Kenalog in them” for 12 years,9 but “the last 2” did not have
For what it is worth, on April 1, 2021, Newberry submitted a “medicine information
sheet,” apparently issued on April 3, 2019, indicating that “[v]ery bad health problems have
happened when drugs like” triamcinolone (brand name including phrase “Arze-Ject-A Kenalog
P_Care K40”) “have been given into the spine (epidural).” These problems “include paralysis,
loss of eyesight, stroke, and sometimes death.” As a result, “[t]hese drugs are not approved” for
injection into the spine. (See Doc. 163-1 at 177–178.) The same information was issued for
methylprednisolone, see id. at 175, but Rees and Hurst administered the drug by intramuscular
injection, not in an epidural. See Rees Aff. at 6–7 ¶ 14, 10 ¶ 27; Hurst Aff. (Doc. 142-4 at 2 ¶
14); Defs. Ex. B at 23, 38.
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Kenalog in them and were “completely ineffective.” Defs. Ex. I at 41.
On August 15, 2019, Newberry saw Bradley and received epidural injections
in a slightly different location in hopes of improving his response. See Rees Aff. at
9–10 ¶ 25; Defs. Ex. B at 81–84. Bradley noted, “Should [Newberry] not see
significant improvement it is unlikely that further injections would improve his
situation. Consider surgical consult.” Defs. Ex B at 84.
Rees reviewed Newberry’s chart on September 9, 2019. He noted that
Bradley was waiting to see whether the August 15 injections were effective. See
Rees Aff. at 10 ¶ 26. Rees also spoke with Dr. Jones, who agreed to review the
elbow x-rays. See Rees Aff. at 19 ¶ 62; Defs. Ex. B at 26.
On October 19, 2019, Newberry said Dr. Hurst told him to “send him a kite”
to request a pain-relief injection for his back. Newberry said he did so but no
action had been taken and he was “in severe pain.” He concluded, “I want the
damn shot!!” See Defs. Ex. I at 45.
On October 23, 2019, Dr. Hurst administered an intramuscular injection of
methylprednisolone sodium succinate. See Rees Aff. at 10 ¶ 27; Hurst Aff. at 2 ¶
14; Defs. Ex. A at 17; Defs. Ex. B at 23.
On October 25, 2019, Rees saw Newberry. He administered the
intramuscular Kenalog injection that Hurst had not given on the 23rd, prescribed
Benadryl to help Newberry sleep, and referred him for another visit with Bradley.
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See Rees Aff. at 10 ¶ 28; Defs. Ex. B at 3, 22; Defs. Ex. A at 17. He also ordered
an appointment for Newberry with Dr. Jones but did not consider the elbow issue
urgent. See Rees Aff. at 19 ¶ 63; Defs. Ex. B at 3, 22. This visit proved to be
Newberry’s last with Dr. Rees.
On November 13, 2019, Newberry saw Bradley for a consultation. Bradley
noted he would try Kenalog (triamcinolone) instead of dexamethasone the next
time he administered an epidural. Rees inferred Bradley would again assess the
effectiveness of the change. Bradley’s notes again indicated surgery might be
considered if the injections failed to provide relief. See Rees Aff. at 10–11 ¶ 29;
Defs. Ex. B at 46.
On December 5, 2019, Newberry kited for a “spinal epidural with Kenalog
in it.” See Defs. Ex. I at 83.
On December 11, 2019, Newberry asked to have all of his appointments
with Dr. Rees and Dr. Hurst rescheduled with another provider “as I have a current
lawsuit pending” against them. He was told that he would “continue to be
scheduled with providers.” Defs. Ex. B at 103.
On the same day, Newberry saw a different prison physician, Dr. Corson.
She ordered physical therapy and referred Newberry for another appointment with
Bradley. See Rees Aff. at 11 ¶¶ 30–31; Defs. Ex. B at 2, 21. Bradley saw
Newberry the following day and evidently administered injections. See Defs. Ex.
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B at 135. Newberry also began seeing a physical therapist. See Defs. Ex. B at
On January 7, 2020, Newberry kited for a spinal epidural “not
triamcinolone, but Kenalog.” See Defs. Ex. I at 87. These are the generic name
and the brand name, respectively, for one medication. See Rees Aff. at 10 ¶ 29.
On January 15, 2020, Newberry had an appointment scheduled, but a nurse
noted he “walked out” when he learned he would see Dr. Hurst. See Defs. Ex. B at
On February 6, 2020, Newberry asked not to be scheduled with Dr. Rees or
Dr. Hurst in future. On February 19, 2020, when Newberry requested another
appointment with Bradley, prison staff learned that he was no longer practicing.
See Rees Aff. at 11–12 ¶¶ 33–34; Defs. Ex. B at 102.
On February 19, Newberry asked for another spinal epidural. On February
25, he was told that Bradley was “no longer doing injections in Anaconda” but an
appointment would be scheduled when new providers were available. See Defs.
Ex. B at 101.
On February 23, 2020, Newberry kited for another epidural “with stronger
medication,” as it had been “nearly 4 months” since his last appointment. See
Defs. Ex. I at 49.
On February 25, 2020, Newberry submitted three kites. He said he needed
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“more physical therapy,” asked to see an outside provider for his elbow, and asked
Dr. Corson to set an appointment for him with Bradley for a “spinal with a more
effective pain killer.” He also asked to see Dr. Corson instead of Drs. Rees or
Hurst because “my attorney said do not see them.” The response informed him
that Dr. Corson would not be at the prison for the “next 3 months” and he would be
scheduled with “available providers.” See Defs. Ex. B at 98–100.
On March 4, Newberry received a response to his February 23 kite. He was
told that “the last spinal injections were documented as non-effective.” A “new
plan of care was formulated” and appeared to show “improvement with current
plan and physical therapy.” Newberry was advised he was scheduled to see Dr.
Rees in early March. See Defs. Ex. I at 49; see also Defs. Ex. B at 120–134, 136
(physical therapist’s reports).
On the same day, Newberry again kited for a spinal epidural with Bradley
and asked to “have Dr. Bradley put a stronger pain medicine in my back.” See
Defs. Ex. I at 50.
Treatment continued with other medical providers in the MSP infirmary.
See Rees Aff. at 12 ¶ 35. As of July 30, 2020, Newberry was no longer scheduled
with Dr. Rees or Dr. Hurst. See id. at 20 ¶ 65; Defs. Ex. B at 110. An August
2020 x-ray of Newberry’s lumbosacral spine “did not note any significant
abnormalities.” See Rees Aff. at 12 ¶¶ 35–36. On several occasions, Newberry
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failed to appear or walked out of appointments. See Defs. Ex. B at 14–17, 112–
3. Is the Element of Deliberate Indifference Genuinely Disputed?
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
(a) Back Pain
Newberry’s amended complaint contended that Bradley told Rees and the
other Defendants that Newberry “needed” surgery and “ordered” gabapentin for
his pain relief. See Am. Compl. (Doc. 6 at 12, 15–16) (describing Bradley as a
neurologist or neurosurgeon). Newberry also contended that Rees prohibited
Bradley from administering fentanyl in the spinal epidural injections, which had
worked for Newberry in the past. See Am. Compl. at 12, 15–16; see also Pl.
Disclosure Stmt. (Doc. 23 at 2 ¶¶ 3–5, 6 ¶ 31.)
To support these allegations, Newberry has introduced no affidavit,
deposition testimony, or other evidence, such as discovery responses, from
Bradley, Rees, or anyone else with personal knowledge. Newberry’s Statement of
Disputed Facts (Doc. 151) lacks evidentiary support and does not comply with
L.R. 56.1(b). See also Fed. R. Civ. P. 56(c)(1); Celotex Corp., 477 U.S. at 324.
His surreply (Doc. 168) is unauthorized, see L.R. 7.1(d)(1)(D), and will not be
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Rees attests that he did not determine what medications outside providers
administered.10 See Rees Aff. (Doc. 142-3 at 8 ¶ 18.) This evidence is undisputed.
Newberry points to Bradley’s report from March 28, 2019, which contains a
handwritten note that gabapentin is not an option for the Department of
Corrections. See Pl. Resp. (Doc. 145 at 4); Def. Ex. B at 50. But Newberry does
not demonstrate that Dr. Rees made the decision or the notation or, more
importantly, that the decision was medically unreasonable.
The evidence shows that Bradley did not prescribe gabapentin but
recommended it. See Rees Aff. at 8 ¶¶ 20, 22; Defs. Ex. B at 58 (Feb. 20, 2019),
50 (Mar. 28, 2019). Rees attests that the drugs he prescribed for Newberry’s pain
relief were more effective and less prone to abuse. See Rees Aff. at 8–9 ¶ 22. This
evidence is undisputed.
The evidence shows that Bradley did not recommend surgery.11 He noted
that a surgical consult should be considered if the epidural injections failed to
Even assuming, for the sake of argument and against the evidence, see, e.g., Defs. Ex.
I (Doc. 142-18 at 24), that DOC policy constrained Bradley to avoid opiates, such a policy is
acceptable in general. See, e.g., Shiira v. Hawaii, 706 Fed. App’x 436, 437–38 (9th Cir. 2017);
Berry v. Lee, 983 F.2d 1075 (9th Cir. 1992). Newberry points to no evidence it was medically
unacceptable in his specific case. With or without a prior history of abuse by an individual
inmate, avoiding the aggravation or creation of addiction to drugs of abuse is itself a serious
The Court does not know whether recommendations for surgery or prescriptive
authority fall within a certified registered nurse anesthetist’s permitted practice.
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relieve Newberry’s pain. See Defs. Ex. B at 84 (Aug. 15, 2019), 46 (Nov. 13,
2019). Rees attests he understood Bradley was trying different approaches to
determine whether epidurals might still be effective before he would recommend
any other course of treatment. See Rees Aff. at 10 ¶ 26, 10–11 ¶ 29. This evidence
Newberry submitted documents purportedly received from Dr. Day, who
saw him in 2016. On March 3, 2016, Dr. Day noted that, depending on various test
results, Newberry should follow up “for possible left L5-S1 foraminotomy.” (Doc.
159-1 at 22.) Dr. Day’s records do not add weight to Newberry’s claims of pain,
which are not disputed, or to Bradley’s similar remark that a surgical consultation
might be appropriate if the epidurals proved ineffective. They do not support an
inference that Defendants were deliberately indifferent to Newberry’s expressions
Newberry submitted statements from 20 inmates. See, e.g., Statements
(Doc. 152-1 at 19, 27, 35, 36, 39) (statements of Demichelis, McNamara, Allard,
Sieler). The reported remarks, claims that their own pain is not adequately
controlled, and reported “weeks”-long delays in treatment evidence indifference
and verbal harassment by unidentified medical and prison staff. But they are not
evidence that a defendant in Newberry’s case was deliberately indifferent.
The records of Newberry’s case indicate some periods of delay in treating
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his back pain, such as that between his initial meeting with Dr. Rees on August 10,
2018, and administration of the first epidural on December 7, 2018. But Rees saw
Newberry on September 27, giving an intramuscular injection and prescribing
medications to relieve his pain. Newberry received epidural injections on
December 7, 2018, March 28, 2019, August 15, 2019, and December 12, 2019, a
regular course of treatment every four to four and a half months. Dr. Rees tried
different medications to reduce inflammation or ameliorate pain throughout his
time treating Newberry. Newberry points to no evidence that these efforts were
medically unreasonable. Just as good faith does not guarantee competence or
successful treatment, lack of success does not indicate incompetence or bad faith.
The fact that Newberry’s pain was not eliminated does not support an inference
that anyone was deliberately indifferent to it.
Finally, Newberry requested subpoenas to obtain MRI and x-ray images in
photographic form and written records from outside treatment providers, including
Bradley.12 The request is moot. Defendants submitted Bradley’s written records in
Judge Johnston granted the request for subpoenas, but problems arose when Newberry
submitted proposed subpoenas. See Mot. for Subpoenas (Doc. 57, 57-5); Order (Doc. 92 at 25–
26, 33 ¶ 14) (granting motion and requiring Newberry to complete form subpoenas); Pl. Prop.
Subpoenas (Doc. 95); Order (Doc. 96 at 3–5) (rejecting subpoenas naming the court as the place
of production); Pl. Prop. Subpoenas (Doc. 103); Order (Doc. 111 at 1–2) (allowing correction of
defective subpoenas); Pl. Mot. for Court’s Consideration (Doc. 120) (requesting that court serve
as the place of production). As Judge Johnston pointed out on January 7, 2021, see Order (Doc.
92 at 21, 26), Newberry could have requested Bradley’s records from Bradley at any time,
without a subpoena. They are Newberry’s own records.
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connection with each of Newberry’s appointments with him. See Defs. Ex. B at
62–66 (Dec. 7, 2018), 57–60 (Feb. 20, 2019), 50–56 (Mar. 28, 2019), 81–84 (Aug.
15, 2019), 46 (consultation of Nov. 13, 2019), 135 (Dec. 12, 2019). The latter
record may be incomplete, as Dr. Rees points out. See Rees Aff. at 11 ¶ 31. On
other occasions when Bradley administered epidurals, his reports consist of four or
five pages. The December 2019 report states injections were administered but
consists of just one page. Even so, other evidence shows the December 2019
treatment failed to help Newberry and Defendants tried a new approach.
Newberry’s pain improved. And he refused to see Defendants Rees or Hurst again.
See Rees Aff. at 10–12 ¶¶ 29–35; Defs. Ex. I at 49; see also Defs. Ex. B at 120–
134, 136 (physical therapist’s reports).
Defendants’ evidence shows they were not deliberately indifferent to
Newberry’s back pain. He points to no competent evidence to the contrary.
Defendants are entitled to summary judgment.
(b) Elbow Pain
Newberry’s amended complaint contended that Dr. Hurst was deliberately
indifferent to his elbow injury. He asserted that Hurst knew bending or moving the
elbow caused Newberry pain but did not order an MRI or X-ray. Newberry’s pain
continued. In April 2019, an X-ray showed the bone was broken. In May 2019,
Dr. Rees told Newberry he would be able to see a bone specialist outside the
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prison, but Newberry had not seen one at least as of September 2020. Newberry
contended that he requires surgery and suffered as a result of its delay. See Am.
Compl. at 10; Pl. Disclosure Stmt. at 4‒5 ¶¶ 20‒21.
Newberry has introduced no affidavit, deposition testimony, or other
evidence showing that he required surgery to repair his elbow. Newberry did not
see a provider in January 2019 until January 31, but in December 2018, he saw a
nurse three times and talked to two doctors about his elbow. This evidence is
undisputed. There was significant delay, from January 31 to April 4, 2019, in
obtaining x-rays, but Dr. Rees avers that “[a]vulsion fractures typically require no
treatment except anti-inflammatories and alternating ice and heat” rather than
surgical intervention. See Rees Aff. at 17 ¶¶ 55–56; Defs. Ex. B at 90. This
evidence, too, is undisputed. Therefore, delays did not cause Newberry to
experience pain beyond that entailed with the nature of the injury. And there is no
evidence that surgery was necessary, or would even be helpful, or that the
prescribed course of treatment was medically unreasonable.
Defendants’ evidence shows they were not deliberately indifferent to
Newberry’s elbow pain. He points to no competent evidence to the contrary.
Defendants are entitled to summary judgment.
(c) Physical Therapy
Newberry contended that Defendants Winner and Hiner denied him physical
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therapy. See Am. Compl. at 6 ¶ 4; Pl. Disclosure Stmt. at 4 ¶ 13. Both Defendants
attest that they do not have the authority to grant or deny treatment by outside
providers. See Hiner Aff. (Doc. 142-1 at 2 ¶¶ 4–6); Winner Aff. (Doc. 142-3 at 2–
3 ¶¶ 5–6.) Newberry points to no evidence to the contrary. Defendants are entitled
to summary judgment.
(d) Tier- and Bunk-Restrictions and Seat Cushion
Newberry seems to raise these issues only under the Americans with
Disabilities Act. In an abundance of caution, the Court will also consider them
under the Eighth Amendment.
Newberry alleges that Bradley told prison officials in February 2019 that
Newberry needed a bottom-bunk and bottom-tier-cell designation and also required
a sitting cushion to avoid back pain. See Am. Compl. at 5, 12‒13.
The undisputed evidence shows that Newberry received a bottom bunk
placement in a ground-floor cell a few days after he requested it from his unit
manager. Newberry points to no evidence to the contrary. The record fails to
support an inference that mere lack of a seat cushion caused Newberry to suffer
serious and avoidable pain or that any Defendant knew this to be the case.
Defendants are entitled to summary judgment.
Newberry points to no evidence showing that a defendant failed or refused
Case 6:19-cv-00050-DLC-JTJ Document 187 Filed 09/08/21 Page 41 of 49
to take his pain seriously or treated it in a medically unacceptable manner.
Defendants are entitled to summary judgment on all claims under the Eighth
D. Americans with Disabilities Act13
To prove a claim under the Americans with Disabilities Act, a plaintiff must
show “(1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs, or
activities; (3) he was . . . denied the benefits of the public entity’s services . . . and
(4) [the] denial of benefits . . . was by reason of [his] disability.” McGary v. City
of Portland, 386 F.3d 1289, 1265 (9th Cir. 2004) (internal quotation marks and
citations omitted). In context, Newberry must show that his pain substantially
limits his ability to sit, reach a top bunk, or climb stairs and that a defendant’s
failure to provide reasonable accommodations in the form of bunk- and tierrestrictions and/or a cushion “disproportionately burdens” his experience of prison
housing as compared to nondisabled prisoners. See, e.g., Rodde v. Bonta, 357 F.3d
The ADA claims support only injunctive relief. See 42 U.S.C. §§ 12132, 12131(1);
Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (no ADA claim against individuals under
42 U.S.C. § 1983); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en
banc) (no ADA claim against individuals). Newberry now resides at Crossroads Correctional
Center, a private prison under contract with the Montana Department of Corrections. His
transfer raises the issue of whether his claims for injunctive relief are moot. As Defendant
Winner is the DOC’s Clinical Services Director, see Winner Aff. (Doc. 142-2) at 2 ¶ 4, she
appears to remain capable of providing injunctive relief if Newberry is entitled to it. And neither
party has suggested the ADA claims are moot.
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988, 998 (9th Cir. 2004); Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir.
Newberry complains that the Special Needs Committee (“SNC”) denied his
requests for lower-bunk and lower-tier restrictions and a chair cushion, contrary to
Bradley’s recommendation. Defendants Rees and Scharf sit on the committee. As
to the bunk and tier restrictions, the SNC’s denial advised Newberry to “work out”
these accommodations with his unit manager. He did and was promptly reassigned
to a lower bunk on a lower tier. See, e.g., Bouley Aff. (Doc. 142-9 at 2–3 ¶¶ 6–9.)
These facts require no further discussion.
Newberry did not receive a cushion. Again, however, his request for one
arrived at the SNC via Newberry’s health services requests based on Bradley’s
recommendation. The role of the SNC is to decide whether specific items or
placements are medically necessary for a given inmate, not whether an item or
placement would be a reasonable accommodation under the Americans with
Disabilities Act. The ADA does not compel the prison to carry out all
recommendations made by a medical provider. The SNC provides cushions only
to inmates who use wheelchairs. Newberry does not, so he did not receive a
By a separate process, Newberry and other inmates were able to request
reasonable accommodations under the ADA. See Scharf Aff. (Doc. 142-7 at 10–12
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¶¶ 31–35); Defs. Ex. C at 6, 18; Defs. Ex. D (Doc. 142-13 at 2–3 § IV(C)(1)–(3)).
There is no evidence that Newberry did so. Nor has he shown that he is unable
fully to participate in programs or services because he cannot sit or remain seated.
Defendants are entitled to summary judgment on Newberry’s ADA claims.
E. Defendants Guyer and Michael
Newberry alleges that Defendants Guyer and Michael are liable because
they knew of ongoing violations of his rights and failed to intervene to stop them
or prevent more. Defendants introduce evidence that neither Guyer nor Michael
knew of Newberry’s condition or his complaints. See Scharf Aff. (Doc. 142-7 at
6–7 ¶ 16–17); Guyer Decl. (Doc. 142-5 at 4); Michael Decl. (Doc. 142-6 at 2–3 ¶¶
4–7). Newberry points to no evidence to the contrary. Defendants are entitled to
F. Conclusion: Defendants’ Motion for Summary Judgment
Defendants have introduced evidence proving they are entitled to summary
judgment on each claim and as to each defendant. Newberry has not pointed to
evidence that could rebut their evidence.
IV. Plaintiff’s Remaining Motions
The Court has reviewed all of Newberry’s submissions since January 7,
2021. A few are discussed above, in Part III(C)(3)(a). A few more require specific
Case 6:19-cv-00050-DLC-JTJ Document 187 Filed 09/08/21 Page 44 of 49
Two motions Newberry has not made are relevant to the following
discussion. First, Newberry did not timely request an extension of time to submit
discovery requests or to extend discovery. Discovery closed on December 18,
2020. See Scheduling Order (Doc. 13 at 7 ¶ II(A)(4)). All requests had to be
served a month before that, on or before November 13, 2020. See id. at 7 ¶
II(A)(2). Newberry filed a motion on November 16, seeking leave to serve
additional requests. He failed to explain what additional discovery he needed and
was unable to obtain. Judge Johnston denied his motion, noting, however, that
Defendants must make certain supplemental disclosures. See Order (Doc. 92 at
22–23, 30 ¶ 1).
Second, Newberry did not file an appropriate motion to compel Defendants
to respond to a discovery request or to make or supplement initial disclosures
pursuant to the Scheduling Order. See Scheduling Order (Doc. 13 at 1–3 ¶¶
I(A)(1)–(2), (4)). Judge Johnston’s Order of January 7, 2021, specifically drew
Newberry’s attention to what he must do to file a proper motion to compel. See
Order (Doc. 92 at 27–28) (citing L.R. 26.3(c)(2)). That Order also extended the
deadline for filing pretrial motions from January 15, 2021, to February 22, 2021.
See id. at 33 ¶ 23. Neither before nor after the motions deadline has Newberry
identified an improper or incomplete response or disclosure by Defendants.
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Some of Newberry’s motions suggest the Defendants failed to produce all
the relevant medical records or failed to respond appropriately to discovery. See,
e.g., Mot. (Doc. 99 at 1) (“The Plaintiff has filed for his discovery but to no
avail”); Mot. (Doc. 102 at 1–2); Mot (Doc. 121 at 2 ¶ 9). On the other hand, he
appears to say Defendants produced more than 400 pages of medical records
dating from 2018 through 2020 but did not provide records from his time at the
prison between 2008 and 2018. See Mot. (Doc. 102 at 2.) The time frame of 2018
to 2020 is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1).
Newberry does not suggest any of those records are missing.
Nor does Newberry explain why records created during his previous stay in
prison, ending in 2016, prove the Defendants in this case were deliberately
indifferent to his serious medical needs. Dr. Day’s records are discussed above.
They do not prove the Defendants were deliberately indifferent to Newberry’s
complaints of pain in 2018, 2019, and 2020, and Newberry offers no reason to
believe other providers’ records would do so.
Newberry fails to request, much less justify, reopening or extension of
discovery. Motions seeking additional discovery or disclosures by the Defendants,
see, e.g., Mot. (Docs. 167, 167-1), Mot. (Doc. 174), are denied.
Case 6:19-cv-00050-DLC-JTJ Document 187 Filed 09/08/21 Page 46 of 49
B. Subpoena Requests
In Part III(C)(3)(a), above, the Court addressed Newberry’s request for
subpoenas to obtain his own medical records from outside providers. As the
subpoenas he requested were not issued, the Court will not enforce them. See Mot.
(Doc. 157 at 1.)
To the extent Newberry believes he could have subpoenaed affidavits or
expert reports, he is mistaken. Subpoenas are used to obtain existing documents.
New statements from non-parties can be taken by deposition but not compelled by
subpoena. It is too late for Newberry to take depositions, as discovery closed on
December 18, 2020. See Scheduling Order (Doc. 13 at 7 ¶ II(A)(4)). Had
Newberry timely made his expert disclosures, see id. at 7 ¶ II(A)(3), or timely
requested affidavits from fact witnesses, he would have had reports or affidavits to
submit in response to Defendants’ motion. He did not submit either.
Newberry’s subpoena requests for video footage of prison employees’
compliance with CDC protocols, see Mot. for Subpoena (Doc. 114, 114-1), are not
relevant to the case. His proposed subpoena for his prison medical records since
2008, see Mot. for Subpoena (Doc. 115, 115-1), is redundant to initial and
supplemental disclosures and discovery between the parties, and so is untimely. It
is also overbroad.
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C. Newberry’s Personal Notes
Newberry submitted “personal notes” he “kept through out this entire
process.” Mot. (Doc. 135 at 1); see also Mot. (Doc. 180). The notes do not
evidence a defendant’s deliberate indifference.14
D. Motions for Leave to File Exhibits
On several occasions, Newberry has requested leave to file evidence or
exhibits. See, e.g., Mots. to Enter Kites & Grievances (Docs. 163, 164, 165 at 1);
see also Docs. 163-1 (221 pages), 164-1 (243 pages), 165-1 (175 pages).
Newberry knows he must connect his exhibits to specific issues before the
Court. See, e.g., Order (Doc. 92 at 21–22); D. Mont. L.R. 7.2 (Dec. 1, 2019);
Rules Packet (Doc. 13-2 at 20–21.) He fails to do so. His exhibits also lack
foundation, authentication, and explanation by competent witnesses. The motions
for leave to file lack merit.
E. Motion for Summary Judgment
On January 27, 2021, Newberry apparently resubmitted (Docs. 112, 112-1,
112-2, 113) the documents he filed in connection with the summary judgment
motion he filed on December 2, 2020 (Docs. 56, 86, 87). The several documents
labeled “Statement of Undisputed Facts” fail to comply with L.R. 56.1(a)(1)–(3),
The first two pages of Newberry’s first submission display peculiar temporal
characteristics. See Personal Notes (Doc. 135-1 at 1–2.)
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see Statements (Doc. 113 at 1–29), and, consequently, fail to show evidence
supporting any undisputed fact. The motion is denied.
F. Other Allegations and Inmates
In various ways, Newberry seeks to expand the scope of this action.15 He
suggests his recent transfer to Crossroads Correctional Center—years after he filed
this case—is retaliatory. He also moves to add claims and/or defendants
concerning his difficulties with the mail room. See, e.g., Mot. (Doc. 157); Mot.
(Doc. 181). The deadline for amending the pleadings expired on October 14, 2020.
See Scheduling Order (Doc. 13 at 6 ¶ II(A)(1)). Disputes over what constitutes
legal mail are not good cause for expanding the scope of a complaint concerned
primarily with medical issues. Further, filing a civil action does not give the Court
authority to monitor a plaintiff’s ongoing interactions with the Defendants or other
people who happen to have something to do with the plaintiff’s incarceration. See,
e.g., Mot. (Doc. 177), Mot. (Doc. 181).
As noted above, see Part II, Newberry did not seek and was not granted
Some allegations are so frivolous the Court hesitates to mention them at all.
Newberry’s occasional accusations of racism, discrimination, and bias lack the most basic
supporting facts. Equally frivolous are his accusations against defense counsels’ thoroughly
ordinary representation of clients in more than one pending case. He baselessly asserts that, once
he files a lawsuit against a defendant, that defendant cannot perform any job duty that might
affect him. Finally, Newberry is not an attorney admitted to the Bar of this Court and has no
authority to seek relief on behalf of other inmates.
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leave to proceed in forma pauperis. Pursuant to Federal Rule of Appellate
Procedure 24(a)(4)(B), however, the Court finds that this litigation uncovered no
significant questions of fact or law. Newberry failed to develop the factual basis of
his case. Appeal of this disposition could not be taken in good faith.
Accordingly, IT IS ORDERED:
1. The Findings and Recommendations of January 7, 2021 (Doc. 92), are
ADOPTED IN FULL.
2. Leave to file the proposed second amended complaint (Doc. 29-2),
excepting the ADA claim and Defendant Scharf, is DENIED.
3. Plaintiff’s motion for the appointment of counsel (Docs. 107, 108) is
4. Defendants’ motion for summary judgment (Doc. 140) is GRANTED as
to all Defendants and all claims.
5. All other pending motions are DENIED.
6. By separate document, the clerk shall enter Judgment in favor of
Defendants and against Plaintiff.
7. The Court CERTIFIES that any appeal from this disposition would not
be taken in good faith.
DATED this 8th day of September, 2021.
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