Dopp v. Larimar et al
ORDER adopting Report and Recommendations re 62 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 9/29/2017. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICHARD LYNN DOPP,
RAY LARIMER, 1 et al.,
Case No. CIV-15-244-D
This matter comes before the Court for review of the Supplemental Report and
Recommendation [Doc. No. 62], issued by United States Magistrate Judge Gary M. Purcell
pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends that summary
judgment be granted to Defendants Ray Larimer and Fred Sanders, D.O. on Plaintiff
Richard Dopp’s remaining claim under 42 U.S.C. § 1983 that he was denied medical care
for a serious spinal condition. Plaintiff, who appears pro se, has filed a timely written
objection [Doc. No. 63]. He has also filed two motions [Doc. Nos. 64 & 65], seeking to
amend his prior response to Defendants’ summary judgment motion and to supplement the
record with additional documentary evidence to support his claim. The Court must make
a de novo determination of the portions of the Report to which a specific objection is made,
and may accept, reject, or modify the recommended decision in whole or in part. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
A misspelling of Ray Larimer’s name in the Complaint has been corrected.
This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff’s
confinement as a state prisoner in custody of the Oklahoma Department of Corrections
(“ODOC”) while he was housed at the Davis Correctional Facility (“DCF”), a private
prison in Holdenville, Oklahoma. 2 Previously, the Court adopted Judge Purcell’s initial
Report and Recommendation [Doc. No. 33] and dismissed all claims asserted in the
Complaint except Count II, alleging a denial of “adequate medical treatment for
[Plaintiff’s] chronic daily head [and] neck aches” (Compl. [Doc. No. 1], at 9), against
DCF’s health services administrator, Mr. Larimer, and a physician employed at DCF,
Dr. Sanders. See Order of July 29, 2016 [Doc. No. 46]. The basis of Plaintiff’s § 1983
claim against Dr. Sanders and Mr. Larimer is that they delayed or refused to perform their
duty “as a gatekeeper for other medical personnel capable of treating the condition,” that
is, a spinal condition in Plaintiff’s neck allegedly causing severe and uncontrolled pain.
See id. at 10-11 (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)).
Following the Court’s prior ruling and re-referral of the case to Judge Purcell,
Defendants Larimer and Sanders moved for summary judgment based on their affidavits
and a Martinez 3 report regarding Plaintiff’s medical records. See Defs.’ Mot. Summ. J.
After the case was filed, Plaintiff was twice transferred to other prisons: Cimarron
Correctional Facility in Cushing, Oklahoma, in June 2015 (Notice of Change of Address [Doc.
No. 18]; Larimer Aff. [Doc. No. 52-2 & 53-2], ¶ 4); and North Fork Correctional Facility in Sayre,
Oklahoma, in October 2016 (Notice of Change of Address [Doc. No. 56]).
See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
[Doc. No. 53]; Special Report [Doc. No. 52]. The motion addresses the allegations of
Plaintiff’s claim that Dr. Sanders and Mr. Larimer acted with deliberate indifference to a
serious medical need because, although Plaintiff received treatment for chronic headaches
and neck pain, including diagnostic tests (x-ray, CT scan, and MRI), Plaintiff was promised
a neurosurgical evaluation at the OU Medical Center, but the appointment was repeatedly
delayed and essentially denied, depriving him of surgical treatment that was needed to
correct a condition causing “unbearable pain” and, potentially, “permanent nerve damage
and/or temporary or permanent paralysis.” See Compl. [Doc. No. 1], at 9-10. Based on
the allegations of the Complaint, controlling case law, and findings of undisputed facts
shown by the case record, Judge Purcell concludes that Plaintiff has failed to demonstrate
a genuine issue of material fact for trial because “neither Mr. Larimer nor Dr. Sanders
failed to perform a gatekeeper role for Plaintiff’s further treatment of his neck impairment.”
See Suppl. R&R [Doc. No. 62] at 18.
Within the time period set by Judge Purcell, Plaintiff has filed a written Objection
[Doc. No. 63] and a Motion and Brief Requesting to File an Amended/Supplemental
Response to Defendant’s Motion for Summary Judgment [Doc. No. 64]. 4
complains that Judge Purcell’s decision is based on a summary judgment response that
Also, while his Objection and Motion were pending, Plaintiff filed a second “Request
and Supplement to His Previous Filed Combined Motion and Brief Requesting to File an
Amended/Supplemental Response, Etc.” [Doc. No. 65]. This filing (with attached exhibits)
concern a visit to the OU Medical Center and an MRI in February 2017, and treatments suggested
by other medical consultants based on that MRI. These subsequent measures have no apparent
relevance to Plaintiff’s claims concerning his medical treatment by Dr. Sanders from September
2013 to March 2015, and other medical providers at DCF from June 2013 until June 2015.
Plaintiff filed before the deadline to respond; Plaintiff asserts that he was prevented from
making a more complete response at that time by institutional transfers that deprived him
of some written materials. Plaintiff bases his Objection on both his prior response and the
proposed amended response submitted with his Motion. The Court finds no error by
Judge Purcell. Plaintiff neither requested additional time to respond, nor asserted that his
initial response was incomplete or lacked any materials needed to make a full response.
Further, the Court declines to permit the supplementation of a summary judgment response
that was complete at the time it was made. The Court declines to consider new matter
raised for the first time in objection to Judge Purcell’s Supplemental Report. See Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.”); see also
ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1184 85 (10th Cir. 2011);
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010). 5
The Court recognizes that it has discretion to permit supplemental briefing, but declines
to do so under the circumstances. See LCvR7.1(i); see also Geddes v. United Staffing All. Emp.
Med. Plan, 469 F.3d 919, 928 (10th Cir. 2006). Were the Court to exercise its discretion to
consider the additional matters presented with Plaintiff’s Motion, the disposition of his § 1983
claim against Defendants Larimer and Sanders would not change. The materials are primarily
copies of Plaintiff’s medical requests or grievances regarding his pain medications or services,
which are consistent with the medical records. One exception is an affidavit apparently prepared
by Plaintiff but signed by another inmate, Stacey Seamster [Doc. No. 64-2]. The affidavit
contains conclusory statements that Mr. Seamster received neck surgery from a private medical
provider less than six months after Dr. Sanders treated him for a neck pain; it provides no basis to
conclude that Mr. Seamster had the same condition as Plaintiff or the same priority of need. The
other exception is a medical transfer summary for Plaintiff’s June 2015 transfer to Cimarron
Correctional Facility [Doc. No 64-23], which was included in the Martinez report. See Special
Report [Doc. No. 52] at 11-12, & Ex. 1 [Doc. No. 52-1] at 2.
Upon de novo consideration of the issues raised by Plaintiff’s Objection, the Court
concurs in Judge Purcell’s conclusion that Defendants Larimer and Sanders are entitled to
summary judgment on the § 1983 claim asserted against them in Count II of the Complaint.
Liberally construing Plaintiff’s Objection, the Court finds the following issues presented
by timely and specific objection to the Supplemental Report: 1) Whether Judge Purcell
impermissibly acts as an advocate for Defendants by treating as undisputed additional facts
that were not stated in their summary judgment brief and by rejecting Plaintiff’s attempts
to dispute some facts; 2) Whether Judge Purcell mistakenly finds that no physician had
recommended surgical treatment of Plaintiff’s cervical spine condition; 3) Whether Judge
Purcell erroneously concludes that the undisputed facts do not establish the subjective
element of Plaintiff’s § 1983 claim where Defendants allowed Plaintiff to wait 17 months
from the time of the initial referral to OU Medical Center in February 2014 until he was
finally seen in July 2015 (shortly after leaving DCF), despite his persistent complaints of
severe pain and a worsening condition. As to all other matters addressed by Judge Purcell
and not specifically challenged by Plaintiff in his Objection, further review is waived under
the court of appeals’ well-established “firm waiver” rule. See United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
Issues 1: Summary Judgment Procedure
Plaintiff complains that Judge Purcell improperly includes in his statement of
undisputed facts, additional facts that were not stated in Defendants’ brief. 6 Plaintiff
Plaintiff also makes a conclusory assertion that Defendants’ affidavits do not satisfy
Rule 56(c)(4) because they were not “made upon personal knowledge” and Defendants were not
provides a copy of the pertinent pages of the Supplemental Report bearing his handwritten
notes to indicate added factual matters. See Pl.’s Obj., Ex. 1 [Doc. No. 63-1]. Rule 56
specifically authorizes a district court, in its discretion, to consider materials in the record
other than those cited by the parties. See Fed. R. Civ. P. 56(c)(3); see also Adler v. WalMart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). In this case, Plaintiff complains of
instances in which Judge Purcell provides an additional fact shown by the medical records,
such as a radiologist’s report, or notes that a drug was a nonprescription pain reliever.
There is no dispute concerning these matters, and they are pertinent to a clear understanding
of the issues. The Court therefore finds no abuse of discretion by Judge Purcell.
Plaintiff also challenges Judge Purcell’s finding that Plaintiff failed to controvert
material facts and treating as undisputed facts that Plaintiff opposed in his response brief.
However, “[a] party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record . . . .” See Fed. R. Civ.
P. 56(c)(1)(B); see also Adler, 144 F.3d at 671-72 (to show a genuine dispute of material
facts, “the facts must be identified by reference to affidavits, deposition transcripts, or
specific exhibits;” a plaintiff may not rely on conclusory allegations of a complaint, even
if it is verified). If an affidavit or declaration is used, it “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
competent to testify on the matters stated. See Pl.’s Obj. [Doc. No. 63] at 1. The same statement
appears as a footnote in his summary judgment response. See P.’s Resp. Br. [Doc. No. 59] n.2.
This assertion is unexplained and has no apparent basis. Mr. Larimer stated matters shown by
DCF’s records or otherwise known to him as DCF’s Health Services Administrator, such as the
procedures for requesting off-site medical appointments with specialists. Similarly, Dr. Sanders
stated matters shown by DCF’s records or personally known from his treatment of Plaintiff.
declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
“[C]onclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991).
The Court’s review of Plaintiff’s summary judgment
response shows the correctness of Judge Purcell’s finding that matters stated by Plaintiff
lacked evidentiary support or were supported only by a speculative statement of Plaintiff’s
opinion or allegation. 7 Plaintiff does not identify any specific error by Judge Purcell in
treating a particular fact as undisputed. Thus, the Court finds this general objection to be
unsupported, and adopts Judge Purcell’s statement of undisputed facts.
Issue 2: Factual Basis for a Claim of Denied Surgical Treatment
Plaintiff objects to Judge Purcell’s conclusion that “no physician has recommended
that Plaintiff should undergo surgery to treat his cervical foraminal stenosis (narrowing of
the cervical disc space).” See Suppl. R&R [Doc No. 62] at 16. To support his objection,
Plaintiff refers to materials that consist of an unsigned, handwritten note from an
unidentified author associated with “North American Spine” and a letter from a “Spine
Care Representative” with the “Laser Spine Institute.” See Pl.’s Obj. [Doc. No. 63] at 2
(citing Pl.’s Resp. Br. [Doc. No. 59] at 9-10 & Exs. 15-19 [Doc. Nos. 59-13 to 59-17).
These documents do not reflect a physician’s recommendation that Plaintiff should receive
surgical treatment of his spinal condition, and are not a proper form of summary judgment
evidence. Further, these papers apparently were obtained by Plaintiff after he left DCF
The Court recognizes that a pleading or court filing may be treated as an affidavit or
declaration “if it alleges facts based on the plaintiff’s personal knowledge and has been sworn
under penalty of perjury,” as were the Complaint and Plaintiff’s summary judgment response.
See Hall, 935 F.2d at 1111.
and, therefore, do not suggest Defendants denied Plaintiff a recommended surgical
treatment for his condition. 8
Accordingly, the Court finds no basis to reject Judge
Purcell’s conclusion, as part of his analysis of Plaintiff’s § 1983 claim against Defendants,
that no physician had recommended surgery for Plaintiff at the relevant time.
Merits of Plaintiff’s “Gateway” Claim of Deliberate Indifference to a
Serious Medical Need
A § 1983 claim of deliberate indifference to an inmate’s serious medical need has
objective and subjective components. See Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000). Judge Purcell finds “no material dispute that Plaintiff has shown the
existence of a serious medical need,” that is, one “sufficiently serious” to satisfy the
objective component of his claim. See Suppl. R&R [Doc. No. 62] at 5 (citing Sealock,
218 F.3d at 1209). The question presented by Defendants’ Motion is whether Plaintiff can
satisfy the subjective component by showing Defendants acted with deliberate indifference
to his need, that they “kn[ew] of but disregard[ed] an excessive risk to [Plaintiff’s] health
or safety.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sealock, 218 F.3d at 1209.
Upon de novo consideration of this issue, the Court concurs in Judge Purcell’s
conclusion that Plaintiff has failed to demonstrate a genuine dispute of material fact
regarding Defendants’ deliberate indifference to Plaintiff’s need for further diagnostic
testing and examination by a specialist who could better evaluate Plaintiff’s condition and
determine his need for surgical treatment. The deliberate indifference standard is not
According to the accompanying envelope, one was mailed to Plaintiff in June 2016 at the
facility where he was confined after he left DCF.
satisfied “where a doctor merely exercises his considered medical judgment,” such as
deciding “whether to consult a specialist or undertake additional medical testing.” Self v.
Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). The standard is satisfied “where the need
for additional treatment or referral to a medical specialist is obvious” but ignored, such as
where “a medical professional recognizes an inability to treat the patient due to the
seriousness of the condition and his corresponding lack of expertise but nevertheless
declines or unnecessarily delays referral.”
“A prison medical professional who
serves ‘solely as a gatekeeper for other medical personnel capable of treating the condition’
may be held liable under the deliberate indifference standard if she ‘delays or refuses to
fulfill that gatekeeper role.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting
Sealock, 218 F.3d at 1211).
In this case, the undisputed facts show that Plaintiff received treatment for his
chronic headaches and neck pain with medication and diagnostic testing performed at DCF
and a hospital in Holdenville. Some tests were performed at the direction of specialists at
OU Medical Center to whom Plaintiff was referred for a neurosurgical appointment and
consultation. It is also undisputed that Dr. Sanders’ referral was made in February 2014
by submitting a request in the usual manner and that OU Medical Center scheduled Plaintiff
for an appointment in July 2014 but then rescheduled it three times, resulting in the referral
not being accomplished until July 2015. Thus, Plaintiff waited approximately 17 months
for the appointment to occur, measured from the time Dr. Sanders decided that a
neurosurgical referral should be made to the time Plaintiff was seen by specialist. It is
undisputed, however, that the timing of the appointment and the priority of Plaintiff’s need
was not determined by Defendants but by OU Medical Center, and the delay in treatment
by a specialist was not within Defendants’ control.
The question thus becomes whether Defendants should have formulated an
alternative plan at some point, to alleviate an unmet need due to the length of the delay.
The medical records show that during the delay Plaintiff continued to complain of pain and
to seek medical services, and that additional testing showed a progressive condition. The
records also show, however, that Plaintiff continued to receive treatment for his pain
complaints, including additional medical services and prescription medications. Although
Plaintiff’s condition is degenerative and his spinal stenosis increased during the delay,
Dr. Sanders has stated that he never found there to be an emergency or an acute need for
Plaintiff merely disagrees with this assessment; he believes
Defendants should have referred him to a private facility that could have treated him sooner
or, perhaps, pushed for an earlier appointment at OU Medical Center. Viewing the facts
shown by the record in the light most favorable to Plaintiff, the Court finds that Plaintiff
has not demonstrated a genuine dispute of material fact regarding Defendants’ subjective,
deliberate indifference to Plaintiff’s spinal condition.
For these reasons, the Court finds that Dr. Sanders and Mr. Larimer are entitled to
summary judgment on the § 1983 claim asserted against them in Count II of the Complaint.
Recommendation [Doc. No. 62] is ADOPTED. Defendants’ Motion for Summary
Judgment [Doc. No. 53] is GRANTED. A final judgment as to all claims and defendants
shall be entered.
IT IS FURTHER ORDERED that Plaintiff’s Motion Requesting to File an
Amended/Supplemental Response to Defendant’s Motion for Summary Judgment [Doc.
No. 64] and Plaintiff’s Second Motion to Supplement [Doc. No. 65] are DENIED.
IT IS SO ORDERED this 29th day of September, 2017.
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