Dopp v. Honaker et al

Filing 72

ORDER granting in part and denying in part 47 Motion to Dismiss; granting in part and denying in part 49 Motion to Dismiss; adopting in part Report and Recommendations re 68 Report and Recommendation.; denying 70 Motion for Discovery; granting 71 Motion to Supplement. Case is re-referred to Judge Goodwin for further proceedings. Signed by Honorable Timothy D. DeGiusti on 3/23/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICHARD LYNN DOPP,
Plaintiff,
v.
BUDDY HONAKER, et al.,
Defendants.

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Case No. CIV-16-1164-D

ORDER
This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 68] issued by United States Magistrate Judge Charles B. Goodwin pursuant to
28 U.S.C. § 636(b)(1). Judge Goodwin recommends granting Defendants’ Motions to
Dismiss [Doc. Nos. 47, 49] and ordering the following dispositions: 1) dismissal under
Fed. R. Civ. P. 12(b)(1) of claims for damages against persons protected by Eleventh
Amendment immunity, 2) summary judgment under Fed. R. Civ. P. 56 dismissing § 1983
claims for which Plaintiff failed to exhaust administrative remedies, and 3) dismissal under
Fed. R. Civ. P. 12(b)(6) of Plaintiff’s properly exhausted § 1983 claim that he was denied
surgical treatment of a serious medical condition.
Plaintiff Richard Dopp, who appears pro se, has filed a timely Objection [Doc.
No. 69], a Combined Motion for Referral and Discovery [Doc. No. 70] (hereafter, “First
Motion”), and a Motion Requesting Supplementation of Record [Doc. No. 71] (hereafter,
“Second Motion”). Plaintiff’s Objection triggers the Court’s duty to make a de novo
determination of the portions of the Report to which a specific objection is made. The

Court may accept, reject, or modify the recommended decision in whole or in part, or return
the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3).
The First Motion requests the appointment of a medical expert to review Plaintiff’s
medical records, and an opportunity for Plaintiff to obtain information needed to support
his claim under 42 U.S.C. § 1983 that he was denied necessary surgery, citing Fed. R. Civ.
P. 56(d). See Pl.’s First Mot. [Doc. No. 70] at 2. However, Judge Goodwin does not
recommend a disposition under Rule 56 of the § 1983 claim discussed in the First Motion
but, instead, addresses the sufficiency of the Amended Complaint to state a claim for relief.
Thus, the First Motion is not relevant to the issues presented for decision, and the Court
finds no basis to permit further factual development of Plaintiff’s claim in the manner
requested by the First Motion.1
The Second Motion asks the Court to consider two attached exhibits that, according
to Plaintiff, were recently located while reviewing his files of other cases concerning the

1

Plaintiff mistakenly argues in the First Motion that Judge Goodwin improperly considers
matters outside the pleading to decide a Rule 12(b)(6) motion without converting Defendants’
Motions to ones for summary judgment. In fact, Judge Goodwin relies only on factual allegations
contained in Plaintiff’s pleading or shown by exhibits attached to the Amended Complaint. See
R&R at 23-25, 27-28. Such exhibits may properly be considered under Rule 12(b)(6). See Gee
v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009). Plaintiff observes that Judge Goodwin mentions in a footnote additional
materials submitted by Plaintiff. See First Mot. at 1-2. In the footnote, however, Judge Goodwin
simply states that the materials would be insufficient “[e]ven assuming these new submissions may
properly be considered;” Judge Goodwin does not recommend that the materials actually be
considered. See R&R at 28 n.9. In any event, Plaintiff expressly seeks by his Second Motion to
make similar materials a part of his pleading “to be considered when reviewing the R&R.” See
Second Mot. at 1.
2

same medical issues, and were inadvertently omitted from this case. 2

The Court

understands the Second Motion as a request to add the exhibits to Plaintiff’s pleading so
they may be used to evaluate the sufficiency of the Amended Complaint. Exhibit A is a
handwritten letter dated February 23, 2017, from “Mary Alex, North American Spine;”
Plaintiff seeks consideration of the writer’s statement that his “treatment plan was reviewed
by our doctor’s physician assistant.”

See Second Mot., Ex. A [Doc. No. 71-1].

Exhibit B is a copy of an OU Medical Center report dated February 1, 2017, containing
handwritten margin notes. Plaintiff represents that the notes were added by Mary Alex
or someone at North American Spine who reviewed the report.3 Because exhibits to a
complaint and additional factual allegations included in an objection to a magistrate’s
report may be considered in judging the sufficiency of a pleading, the Court finds that the
Second Motion should be granted. See Gray v. GEO Group, Inc., No. 17-6135, 2018 WL
1181098, *2 (10th Cir. March 6, 2018) (unpublished) (citing Oxendine v. Kaplan, 241 F.3d
1272, 1275 (10th Cir. 2001), and McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001)).4

2

In earlier cases, Plaintiff asserted a similar claim that he was denied a surgical
consultation and treatment for his medical condition at prior places of confinement. See Dopp v.
Jones, Case No. CIV-14-961-D, Compl. at 13 (W.D. Okla. Sept. 8, 2014); Dopp v. Larimer, Case
No. CIV-15-244-D, Order (W.D. Okla. Sept. 29, 2017), aff.’d, No. 17-6217, 2018 WL 1377561,
(10th Cir. Mar. 19, 2018) (unpublished). In a later case that remains pending before Judge
Goodwin, Plaintiff is asserting a similar claim that overlaps the Amended Complaint in this case;
the duplicate case was filed in state court and was removed by Defendants. See Dopp v. Honaker,
Case No. CIV-17-816-D, Notice of Removal (W.D. Okla. July 31, 2017).
3

The significance of this alleged fact is unclear. The notes merely explain medical terms
in the report, such as “neural foramen” and “stenosis.” See Second Mot., Ex. B [Doc. No. 71-2].
Further, a similar copy of the report is Exhibit 9 to the Amended Complaint [Doc. No. 9-9].
4

Unpublished opinions cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
3

Factual and Procedural Background
This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff’s
confinement as a state prisoner at the Cimarron Correctional Facility (“CCF”), a private
prison in Cushing, Oklahoma, formerly operated by Corrections Corporation of America,
and the North Fork Correctional Center (“NFCC”), a prison operated by the Oklahoma
Department of Corrections (“ODOC”) in Sayre, Oklahoma. Plaintiff is proceeding under
the Amended Complaint [Doc. No. 9] filed April 24, 2017. 5

Plaintiff claims he was

denied at both facilities adequate medical treatment in violation the Eighth Amendment’s
proscription against cruel and unusual punishment. See Am. Compl. [Doc. No. 9] at 8, 9.
Specifically, Plaintiff alleges he was denied surgical treatment of a “serious degenerative
medical condition (cervical foraminal stenosis neck bone nerve cord impingement),” for
which corrective spinal-fusion surgery is needed; that he was denied (until February 2017)
an updated MRI to determine the progression of his condition; and that he was denied at
NFCC a prescription for Neurontin or other medications that alleviate severe pain. Id. at
12-17, 18-20. The named defendants as identified by Plaintiff are: 1) Buddy Honaker,
ODOC’s medical services administrator; 2) Joel McCurdy, ODOC’s chief medical officer;
5

The original Complaint filed October 6, 2016, predated Plaintiff’s transfer from CCF to
NFCC by less than a week. The Amended Complaint is a supplemental pleading encompassing
later events, which Judge Goodwin permitted. See Order Requiring Service & Special Report
[Doc. No. 10]. In this case, as in other cases concerning Plaintiff’s medical complaint (see supra
note 1), Plaintiff has been authorized to proceed in forma pauperis under 28 U.S.C. § 1915 despite
his accumulation of more than three “prior occasions” or strikes under § 1915(g). In this case,
Judge Goodwin found Plaintiff’s allegations were facially sufficient to satisfy the imminent-danger
exception of § 1915(g). See Order Granting Leave to Proceed In Forma Pauperis [Doc. No. 6]
at 3. The Tenth Circuit agreed with this assessment of Plaintiff’s similar allegations in a prior
case. See Dopp v. Larimer, 2018 WL 1377561 at *2.
4

3) Stephen Paine, a physician at CCF; 4) Theresa Sellers, CCF’s health services
administrator; 5) Shirley May, health services administrator at CCF and then NFCC;
6) Laura Neefe, CCF’s health services administrator; 7) Ms. Baird, CCF’s nurse
practitioner; 8) Dr. Neau, CCF’s medical director; 9) Bob Thompson, a physician at NFCC;
and 10) Jeffrey Troutt, ODOC’s regional medical director.
Defendants Honaker, McCurdy, May, Thompson, and Troutt (the “ODOC
Defendants”) have moved for dismissal under Rule 12(b)(1) and (6).6 Defendants Baird,
Neefe, Paine, Neau, and Sellers (the “CCA Defendants”) have moved for dismissal under
Rule 12(b)(6) and, alternatively, Rule 56.7 Both the ODOC Defendants and the CCA
Defendants filed court-ordered Special Reports [Doc. Nos. 46, 48] pursuant to Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978).
After careful consideration of Defendants’ Motions, Plaintiff’s Responses, and the
case record, Judge Goodwin presents a thorough analysis of the issues in a 31-page Report
[Doc. No. 68]. Plaintiff’s Objection is silent concerning the first issue addressed in the
Report, namely, the ODOC Defendants’ Eleventh Amendment immunity from a suit for
damages. The Court therefore finds that Plaintiff has waived further review of this part
of the Report. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996)

6

The ODOC Defendants’ Motion does not cite Rule 12(b)(1) but asserts Eleventh
Amendment immunity from a suit for damages brought against them in their official capacities.
As properly noted by Judge Goodwin, Eleventh Amendment immunity is a threshold jurisdictional
matter implicating subject matter jurisdiction. See R&R at 3.
7

For clarity, the Court adopts the same identifiers used by Judge Goodwin. Defendant
Sellers was served after the CCA Defendants’ Motion was filed, but was subsequently permitted
to join in its filing. See 10/6/17 Order [Doc. No. 65].
5

(“firm waiver” rule requires a specific objection to preserve an issue for de novo review by
district court). Plaintiff objects only to Judge Goodwin’s analysis and recommendations
regarding administrative exhaustion and the sufficiency of the Amended Complaint to state
a § 1983 claim of deliberate indifference to a serious medical need in violation of the Eighth
Amendment.
Failure to Exhaust Administrative Remedies for a § 1983 Claim
Regarding a New MRI or Pain Medications
Judge Goodwin finds certain aspects of Plaintiff’s claim that he was denied medical
care must be dismissed pursuant to 42 U.S.C. § 1997e(a) because Plaintiff failed to exhaust
his administrative remedies regarding these matters, namely, a new MRI scan and certain
pain medications.

Applying the summary judgment procedure of Rule 56 to record

materials that are appropriate for consideration, including Plaintiff’s sworn filings, Judge
Goodwin finds that Plaintiff failed to complete the administrative review process for his
grievances regarding a request for an updated MRI in July 2016, and requests for
prescription pain medications in September and November 2015 and February and October
2016.

Plaintiff does not challenge Judge Goodwin’s statement of undisputed facts

relevant to the defense of administrative exhaustion. 8 Plaintiff instead challenges the
legal conclusions drawn from the undisputed facts.

8

Plaintiff attempts to dispute one of the reasons given for rejecting his appeal regarding
Grievance No. 15-398, that is, his request to staff (“RTS”) was not submitted in a timely manner.
Judge Goodwin finds that the record shows the RTS was not received by the reviewing authority
until September 10, 2015. See R&R at 18-19. Plaintiff contends a timely submission date
appears “on the grievance itself;” he relies on a handwritten date of July 27, 2015. See Obj. at 3
(citing CCF’s Special Report [Doc. No. 48-8] at 86). However, the grievance form bears a datestamp showing the date of actual submission, and Plaintiff’s contention is undermined by his
6

The Court rejects Plaintiff’s contention that the ODOC and CCA defendants have
not established their exhaustion defense for § 1983 claims regarding a delayed MRI and
pain medications. The detailed statement of facts compiled by Judge Goodwin shows that
none of Plaintiff’s grievances regarding these issues reached the final step of the
administrative process. It is undisputed that Plaintiff filed only one formal grievance
regarding an MRI scan at CCF, that Plaintiff’s grievance appeal was returned unanswered,
and that Plaintiff did not resubmit it. It is similarly undisputed that Plaintiff’s multiple
grievances regarding pain medications were either submitted as improper “emergency
grievances,” were returned unanswered during the administrative process for procedural
errors, or were improperly submitted directly to the appeal authority.
Liberally construing the Objection, Plaintiff argues that the stated reasons for
rejecting his grievance appeals were pretextual, that the cited procedural errors could not
have been corrected, and that he was not offered an opportunity to resubmit the appeals.9
Plaintiff invokes an exception to exhaustion when prison officials thwart a prisoner’s
efforts to complete the administrative process. See Obj. at 2 (citing Jernigan v. Stuchell,
304 F.3d 1030 (10th Cir. 2002), Little v. Jones, 607 F.3d 1245 (10th Cir. 2010), and Ross
v. Blake, 136 S. Ct. 1850, 1859 (2016)); id. at 4-5 (citing Blake).

additional argument that delay was caused by his lack of access to notary services. Id. at 3-4.
Plaintiff was subject to a grievance restriction policy that required a notarized affidavit. Id. at 3
(citing CCF’s Special Report at 76). The Court finds that Plaintiff’s attempt to dispute the date
of filing Grievance 15-398 is unsupported by the case record, and in any event, untimeliness was
only one of five reasons why the appeal was rejected.
9

Plaintiff does not object to the rejection of his emergency grievances; he addresses only
Grievances 16-239-2, 15-376, and 15-398, and RTS’s in October 2016. See Obj. at 1-5.
7

Upon de novo consideration, the Court is not persuaded by Plaintiff’s arguments.
Plaintiff is correct that only “available” administrative remedies must be exhausted, and
“[w]here prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of
an administrative remedy, they render that remedy ‘unavailable.’” See Little, 607 F.3d at
1250; see also Blake, 136 S. Ct. at 1860 (“when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or
intimidation . . . , such interference with an inmate’s pursuit of relief renders the
administrative process unavailable”). However, an inmate can properly be required to
comply with the applicable procedural rules through all levels of the administrative
process. See Woodford v. Ngo, 548 U.S. 81, 90 (2006); see also Thomas v. Parker, 609
F.3d 1114, 1118 (10th Cir. 2010). The Tenth Circuit has made clear that an inmate “‘may
not successfully argue that he had exhausted his administrative remedies by, in essence,
failing to employ them.’” See Thomas, 609 F.3d at 1118 (quoting Jernigan, 304 F.3d at
1033). In this case, Plaintiff has not come forward with facts to support a reasonable
inference that prison officials interfered with his use of the administrative review process
such that the process was not available to him. See Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011) (“Once a defendant proves that a plaintiff failed to exhaust, . . . the onus
falls on the plaintiff to show that remedies were unavailable to him . . . .”).
In short, the Court finds no error in Judge Goodwin’s analysis of the administrative
exhaustion issues. The Court fully concurs in Judge Goodwin’s finding that Defendants
have established their affirmative defense of failure to exhaust administrative remedies

8

with respect to Plaintiff’s § 1983 claims based on delays in providing an updated MRI scan
in 2016 and supplying pain medications in 2015 and 2016.

These claims must be

dismissed pursuant to § 1997e(a).
Sufficiency of Plaintiff’s § 1983 Claim Regarding Spinal-Fusion Surgery
Regarding corrective surgery to treat Plaintiff’s spinal condition, Judge Goodwin
finds that the Amended Complaint fails to state a claim of deliberate indifference to a
serious medical need because Plaintiff’s allegations and exhibits show he has received
medical treatment for his spinal condition; he simply desires a surgical treatment that has
not been determined by any treating physician or medical specialist to be necessary for his
condition. Judge Goodwin finds that “Plaintiff has not plausibly pled that any Defendant,
solely by not arranging [spinal-fusion] surgery, was deliberately indifferent to Plaintiff’s
serious medical needs.” See R&R at 29.
Plaintiff objects to this finding, but he does not dispute the accuracy of Judge
Goodwin’s summary of his factual allegations. See R&R at 22-25; Obj. at 5. Thus, the
Court adopts without change this portion of Judge Goodwin’s Report. The Court also
considers an additional factual allegation in the Amended Complaint highlighted by
Plaintiff in his Objection, that Dr. Thompson and Defendant May “admitted to [Plaintiff]
that pills would never fix, heal, [or] correct [Plaintiff’s] degenerative neck bone condition
and that his nerves were being pinched by those neck bones.” See Obj. at 5, 7; Am.
Compl. at 18. Further, the Court may consider factual allegations included in Plaintiff’s
Objection and added pursuant to the Second Motion, discussed supra, which the Tenth

9

Circuit has authorized district courts to consider as amendments to a pleading. See
McBride, 240 F.3d at 1289; see also Gray, 2018 WL 1181098 at *5; Breedlove v. Costner,
405 F. App’x 338, 343 (10th Cir. 2010).
As a preliminary matter, the Court also adopts Judge Goodwin’s correct statement
of the applicable legal standards: a) the procedural standard used to assess the Amended
Complaint under Rule 12(b)(6); and b) the substantive standard governing Plaintiff’s
§ 1983 claim. See R&R at 25-26. Judge Goodwin finds the Amended Complaint fails to
satisfy the subjective component of “deliberate indifference” under the Eighth
Amendment, which requires a plaintiff to show that the defendant “was aware of and
ignored an excessive risk to the inmate’s health or safety.” See Farmer v. Brennan, 511
U.S. 825, 837 (1994). For reasons explained in his Report, Judge Goodwin finds that
Plaintiff’s allegations show simply a disagreement with Defendants about his treatment; he
seeks a surgical option that no treating or examining physician has recommended and that
no medical professional has determined to be medically necessary. See R&R at 27-29.
Judge Goodwin concludes that Plaintiff has not shown by his allegations that Defendants
have disregarded a substantial risk of harm to Plaintiff. Id. at 29.
Liberally construing the arguments in Plaintiff’s Objection, the Court understands
that Plaintiff primarily challenges Judge Goodwin’s conclusion that his allegations do not
show Defendants have disregarded an “obvious need.” See Obj. at 6. Although not
cited in his Objection, Plaintiff relies on the principle that the deliberate indifference
standard “is not satisfied, absent an extraordinary degree of neglect, where a doctor merely

10

exercises his considered medical judgment,” but an actionable claim may exist if “the need
for additional treatment or referral to a medical specialist is obvious” and the obvious need
is ignored. See Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). Plaintiff contends
that the pain management treatments that Defendants have provided are ineffective to
alleviate his pain and “corrective surgery . . . is the only viable option left.” See Obj. at 6;
see also id. at 7 (complaining that Judge Goodwin ignores “the uncontrolled pain [and]
suffering [Plaintiff] is continually experiencing that is not being adequately treated [and]
cannot be because only corrective surgery can provide that level of pain relief”).
Accepting Plaintiff’s well-pleaded factual allegations as true, Plaintiff has been
diagnosed with a degenerative spinal condition that causes severe, chronic pain. Plaintiff
has been treated with prescription pain medications, medical examinations, diagnostic tests
performed in 2013, 2014, and February 2017, and most recently, by “injection of salt
water.” See Obj. at 5, 8. While at CCF, Plaintiff received a previously scheduled
appointment to be evaluated by a neurosurgeon at the OU Medical Center; the appointment
resulted in Plaintiff’s examination by a “screener” who advised Plaintiff that surgery could
correct his condition but OU Medical Center would not provide it due to budgetary
constraints. Plaintiff “then requested Dr. Paine, T. Sellers, and S. May to schedule him
to see an independent medical facility such as Laser Institute in OKC, OK, to provide the
corrective surgery, but said requests were denied.” See Am. Compl. at 13. Plaintiff also
provided the CCA Defendants with “copies of results of totally . . . independent medical
facility, North American Spine Institute (NASI), . . . after they reviewed [Plaintiff’s] 2014

11

MRI CD images . . . . NASI concluded [Plaintiff] required surgical fusion to correct his
lower neck bone degenerative condition and relieve the pain caused by the nerve cord
impingement.” Id. at 13. Plaintiff alleges he also provided this information to ODOC
Defendants Honaker and McCurdy and all these defendants refused to provide or
recommend surgery. Id. at 14. After Plaintiff’s transfer to NFCF on October 12, 2016,
Plaintiff allegedly provided the same information to Defendant May (then NFCF’s health
services administrator) and Dr. Thompson, which resulted in the ODOC Defendants
(including Drs. Troutt and McCurdy) ordering and reviewing the 2017 MRI.

But

Dr. Thompson told Plaintiff that “ODOC would [rather] feed [Plaintiff] pain pills for the
rest of his life than provide any corrective surgery.” Id. at 18. Plaintiff provides factual
allegations to show that all ODOC Defendants, including Defendant Honaker, have been
personally involved in his medical treatment but have failed to pursue a surgical option.
Upon careful consideration, the Court finds that Plaintiff has provided minimally
sufficient factual allegations, when viewed in his favor as the court must, to state a plausible
claim that Defendants have engaged in deliberate indifference to a serious medical need
for relief from severe pain caused by a treatable spinal condition. Judge Goodwin is
correct that Plaintiff has not been examined by any medical professional who has
recommended surgical treatment, but Plaintiff alleges a medical “screener” whom Plaintiff
saw for that purpose refused to recommend surgery for financial reasons. Also, it does
not appear from Plaintiff’s pleading that any defendant is qualified to evaluate Plaintiff’s
need for spinal-fusion surgery. “A prison medical professional who serves ‘solely . . . as

12

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 v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)). Although “[d]elay in medical care only
constitutes an Eighth Amendment violation where the plaintiff can show that the delay
resulted in substantial harm,” the court of appeals has held that severe pain may be
sufficient to satisfy this standard. See Sealock, 218 F.3d at 1210; see also Gray, 2018 WL
1181098 at *4. Upon consideration, the Court finds that Plaintiff alleges minimally
sufficient facts from which to infer that Defendants have failed to perform their gatekeeper
role for treatment of Plaintiff’s condition.10
Therefore, the Court finds that the Amended Complaint sufficiently states a
plausible claim against Defendants of deliberate indifference to Plaintiff’s serious medical
need regarding a spinal condition causing severe and unalleviated pain.
Conclusion
For these reasons, the Court finds that any official-capacity § 1983 claim should be
dismissed without prejudice, that Plaintiff’s § 1983 claim regarding a delayed MRI scan
and pain medications must be dismissed for failure to exhaust administrative remedies, but

10

The cases cited by Judge Goodwin involving complaints about a lack of surgical
treatment involved: a diagnosis and determination by medical staff “that surgical intervention was
not now indicated,” see Levy v. Kafka, 6 F. App’x 822, 823 (10th Cir. 2001); an examination by a
specialist “who determined that facial surgery was not a medical necessity,” see Hartz v. Sale, 687
F. App’x 783, 785 (10th Cir. 2017); and “a difference of professional opinion” between two
doctors regarding the need for hernia surgery. See Sherman v. Klenke, 653 F. App’x 580, 591
(10th Cir. 2016).
13

that Plaintiff states a plausible § 1983 claim regarding a refusal by Defendants to consider
surgical treatment of Plaintiff’s spinal condition.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 68] is ADOPTED IN PART, as set forth herein. Defendants Baird, Neefe, Paine and
Neau’s Motion to Dismiss [Doc. No. 49] is GRANTED in part and DENIED in part;
Defendants Honaker, McCurdy, May, Thompson, and Troutt’s Motion to Dismiss [Doc.
No. 47] is GRANTED in part and DENIED in part. The case shall proceed only on
Plaintiff’s § 1983 claim against all Defendants regarding surgical treatment of his medical
condition.
IT IS FURTHER ORDERED that Plaintiff’s Combined Motion for Referral and
Discovery [Doc. No. 70] is DENIED but Plaintiff’s Motion Requesting Supplementation
of Record [Doc. No. 71] is GRANTED.
IT IS FURTHER ORDERED that this matter is re-referred to Judge Goodwin for
further proceedings consistent with the initial case referral.
IT IS SO ORDERED this 23rd day of March, 2018.

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