Kimbal v. Garden et al

Filing 46

MEMORANDUM DECISION & ORDER GRANTING MOTION FOR SUMMARY JUDGMENTgranting 37 Motion for Summary Judgment. The Plaintiff's Complaint is DISMISSED with prejudice. This case is CLOSED. Signed by Judge Clark Waddoups on 9/30/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

PAUL D. KIMBAL,
Plaintiff,

MEMORANDUM DECISION & ORDER
GRANTING MOTION FOR
SUMMARY JUDGMENT

v.
RICHARD GARDEN et al.,
Defendants.

Case No. 2:12-CV-1069-CW
District Court Judge Clark Waddoups

Plaintiff, Paul D. Kimbal, asserts that his rights to be free of cruel and unusual
punishment and to due process were violated when Defendants, Utah State Prison (USP) medical
staff members, Doctors Richard Garden and Kennon Tubbs,1 gave him inadequate medical care.
Specifically, he asserts that (1) Garden denied him appropriate medical care and fabricated
medical records; and (2) Tubbs denied him necessary medication for pain and psychiatric
symptoms, downgraded his psychiatric diagnosis, and fabricated medical records. Before the
Court is Defendants’ Motion for Summary Judgment.
Defendants filed several exhibits with their summary-judgment motion, including
declarations by Defendants Garden, Tubbs, Blaivas and Merrill, and Grievance Coordinator
Billie Casper. They also filed hundreds of pages of medical and other prison records relevant to
Plaintiff’s allegations.

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Plaintiff also originally named Dr. Alex Blaivas and P.A. Raymond Merrill as defendants but later moved
for their dismissal, a dismissal that Defendants stipulated to. (See Docket Entry # 40.) These two defendants are
therefore dismissed with prejudice and considered no further in this Order.

After Defendants filed for summary judgment, Plaintiff had until March 30, 2015 to respond.
Instead, he moved for a stay of the summary-judgment motion, then he moved for summary
judgment on April 6, 2015. The Court has not heard from him since then. However, because
Plaintiff’s summary-judgment motion addresses some of the arguments in Defendants’
summary-judgment, the Court construes Plaintiff’s motion as a response to Defendants’ motion.
Plaintiff also attached eighty-two pages of documents--primarily medical and grievance records-to his memorandum in support of his Complaint; and ninety-five pages of documents--many
duplicative of the eighty-two pages but also some more recent ones--to his Amended Complaint.
To give Plaintiff the benefit of the doubt, the Court fully considers--in a light most
favorable to Plaintiff--the following documentation in its summary-judgment analysis:
Plaintiff’s documents attached to his memorandum in support of his Complaint; Plaintiff’s entire
Amended Complaint; Plaintiff’s exhibits attached to his Amended Complaint; Plaintiff’s motion
to stay summary judgment; Plaintiff’s motion for summary judgment; and Defendants’ Martinez
report and summary-judgment motion.
ANALYSIS
I.

Summary-Judgment Standard

Summary judgment is appropriate when “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). Factual assertions may be supported by
citing to parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers,
or other materials; or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the
fact.

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Id. at 56(c)(1). A primary purpose of the summary-judgment rule “is to isolate
and dispose of factually unsupported claims or defenses.” Celotex v. Catrett, 477
U.S. 317, 324 (1986).
The party moving for summary judgment bears the initial burden of showing “that there
is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325.
This burden may be met merely by identifying portions of the record which show an absence of
evidence to support an essential element of the opposing party’s case. Johnson v. City of
Bountiful, 996 F. Supp. 1100, 1102 (D. Utah 1998).
Once the moving party satisfies its initial burden, “the burden then shifts to the
nonmoving party to make a showing sufficient to establish that there is a genuine issue of
material fact regarding the existence of [the disputed] element.” Id. Rule 56 requires a
nonmovant “that would bear the burden of persuasion at trial” to “go beyond the pleadings and
‘set forth specific facts’ that would be admissible in evidence in the event of a trial from which a
rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144 F.3d 664, 671
(10th Cir. 1998). The specific facts put forth by the nonmovant “must be identified by reference
to an affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v.
Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and
references to the pleadings will not suffice. However, the Court must “examine the factual
record and reasonable inferences therefrom in the light most favorable to the party opposing the
motion.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).

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II.

Statement Of Undisputed Facts

1.

Plaintiff was housed at USP during all relevant times.

2.

Defendant Garden is Administrative and Clinical Director over health services for

the Utah Department of Corrections (UDOC). He supervised Defendant Tubbs and reviewed
Plaintiff’s medical records. (2d Garden Decl.)
3.

Defendant Tubbs is a medical doctor who, along with many other USP and

outside medical providers, personally treated and prescribed medication to Plaintiff, between
December 14, 2011 and April 3, 2013. (Tubbs Decl. at ¶¶ 3, 5 & 6.)
4.

On January 28, 2011, Defendant Tubbs treated Plaintiff upon his request to renew

a prescription for bipolar medication. Tubbs determined Wellbutrin was working well but
discontinued Neurontin because it is not a good mood stabilizer. Tubbs instead prescribed
Lithium. (Tubbs Decl. at ¶ 8.)
5.

On March 4, 2011, Plaintiff refused his blister pack of Lithium at the pill line.

(Tubbs Decl. at ¶ 9.)
6.

On or around April 7, 2011, Plaintiff wrote a letter to USP Med Tech Jen

requesting that she renew his Neurontin on the “down low,” and increase his Tramadol dosage.
Because the request was deemed dishonest, manipulative and indicative of Plaintiff abusing his
medication, Defendant Tubbs discontinued Plaintiff’s Tramadol prescription. (Tubbs Decl. at ¶
10.)
7.

On April 22, 2011, Defendant Tubbs treated Plaintiff upon his request for anxiety

medication. Tubbs suggested changing from Wellbutrin to Paxil or Zoloft--a suggestion with
which Plaintiff disagreed. (Tubbs Decl. at ¶ 11.)

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8.

On May 18, 2011, Defendant Tubbs referred Plaintiff to Dr. Soni at the University

of Utah Medical Center. (Tubbs Decl. at ¶ 12.)
9.

On May 25, 2011, Defendant Tubbs saw Plaintiff for depression but postponed

treatment until he could get Dr. Soni’s report. (Tubbs Decl. at ¶ 13.)
10.

On June 3, 2011, Dr. Soni saw Plaintiff, discontinuing his Effexor prescription

and restarting Wellbutrin. (Tubbs Decl. at ¶ 14.)
11.

On October 11, 2011, Plaintiff filed a grievance against USP medical staff for

denying pain medication. The USP “Utilization Review Committee” reviewed Plaintiff’s
treatment plan and determined Tramadol and Neurontin were not warranted. (Tubbs Decl. at ¶
15.)
12.

On December 13, 2011, Defendant Tubbs told P.A. Merrill not to give Plaintiff

Neurontin and Ultram. Merrill prescribed alternative medications. (Tubbs Decl. at ¶ 16.)
13.

On December 14, 2011, Plaintiff filed a grievance against Defendant Tubbs in

which he alleged that Tubbs had falsified medical records. Tubbs states all his entries into
Plaintiff’s medical records were based on his observations and medical opinions during medical
visits. (Tubbs Decl. at ¶ 17.)
14.

On November 3, 2012, Tubbs reviewed Plaintiff’s demand for Ultram or surgery

on his hips. After reviewing his record, including medications and x-rays, Tubbs denied the
request. (Tubbs Decl. at ¶ 18.)
15.

On April 4, 2013, Tubbs placed a hold on Plaintiff’s Neurontin prescription due to

Plaintiff’s past misuse of Neurontin. He made a note that other medications would be more
appropriate. (Tubbs Decl. at ¶ 19.)

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16.

Since 2011, Plaintiff has not had a medical condition requiring emergency care,

hospitalization, major surgery or other substantial procedures. His health status has not been
critical or acute and has generally been stable. (Tubbs Decl. at ¶ 23.)
III.

Personal Participation

To validly state a claim against a defendant in a § 1983 action, a plaintiff must allege the
personal participation of the defendant in violating the plaintiff’s federal constitutional rights.
Anaya v. Crossroads Managed Care Sys, Inc., 973 F. Supp. 1228, 1248 (D. Colo. 1997), rev’d
on other grounds, 195 F.3d 584 (10th Cir. 1999); see also Bennett v. Passic, 545 F.2s 1260,
12162-63 (“Personal participation is an essential element in a § 1983 claim.”). The plaintiff
must assert an affirmative link between the violation and the defendant’s actions. Id.
Further, it is well settled in the Tenth Circuit that “[u]nder § 1983, government officials
are not vicariously liable for the misconduct of their subordinates.” Serna v. Colo. Dep’t of
Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006). Supervisors are liable only “for their own culpable
involvement in the violation of a person’s constitutional rights.” Id. Section 1983 liability is not
available under the doctrine of respondeat superior. Monell v. New York City Dept’ of Social
Servs., 436 U.S. 658, 691-692 (1978). For a plaintiff to simply state that a defendant is a
supervisor will not suffice to state a claim; “supervisor status by itself is insufficient to support
liability.” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996).
Defendant Garden oversees the administration and delivery of medical services to
inmates throughout the USP population. Plaintiff has not even alleged, nor do any of the records
filed with this case show, that Defendant Garden participated in any sick calls or personally
prescribed medication or treatment for Plaintiff. The Court then assumes that Plaintiff named
Defendant Garden simply because of his supervisory role over USP’s medical personnel.

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However, his supervision, minus “’exercise of control or direction’” as to Plaintiff’s specific
case, is insufficient to sustain a claim against him. Green v. Branson, 108 F.3d 1296, 1302 (10th
Cir. 1997) (quoting Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). There is no
allegation or evidentiary support for the possibility that Defendant Garden deliberately or
intentionally acted toward Plaintiff. See Dodds v. Richardson, 614 F.3d 1185, 1196 n.4, 1209
(10th Cir. 2010) (Tymkovich, J., concurring). Further, the allegation that Defendant Garden
fabricated medical records is completely unspecified and unsupported. Accordingly, Defendant
Garden cannot be held responsible, either personally or vicariously, for violating Plaintiff’s
constitutional rights. Plaintiff’s claims against Defendant Garden fail as a matter of law and are
dismissed.
IV.

Inadequate Medical Treatment

To prove that Defendant Tubbs violated his Eighth Amendment right to adequate medical
treatment, Plaintiff must present admissible evidence showing that Defendant Tubbs acted with
deliberate indifference to a serious harm—e.g., that he intentionally failed to respond to
Plaintiff’s obvious need. See Estelle v. Gamble, 429 U.S. 97, 105 (1976). A defendant must
have a sufficiently culpable state of mind to be termed “deliberately indifferent.” Farmer v.
Brennan, 511 U.S. 825, 828 (1994). And, the defendant’s “state of mind” is evaluated from a
subjective standard: “[T]he official must be both 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.” Id.
at 837. The deliberate indifference standard applied in Eighth Amendment cases equates with
the “subjective recklessness” standard of criminal law. Id. at 839-40.
Based on the uncontroverted evidence, which the Court has thoroughly reviewed-declarations provided by Defendant Tubbs and other prison staff members and over a hundred

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pages of medical and prison records--this Court cannot term Defendant Tubbs deliberately
indifferent to Plaintiff’s need for medicine and treatment. To the contrary, on every sick visit of
record that they had together, Defendant Tubbs prescribed medication, reviewed dosages, and
documented reasons when he discontinued or did not prescribe medication. The record shows
that Defendant Tubbs discontinued prescriptions for Tramadol and Neurontin, but this was after
he documented the concern that Plaintiff had sent a letter to Jenn asking for medication on the
down low, indicating potential manipulation and abuse. Even then, Tubbs generally offered
some alternative medication, which Plaintiff apparently eschewed.
Far from “deliberate indifference”--“the unnecessary and wanton infliction of pain”-- the
record over many sick visits shows Defendant Tubbs ensuring medication for complained-of
pain and depression and anxiety every time, unless he documented a reason why not. Estelle,
429 U.S. at 104 (quotation marks & citation omitted). It may not have been the exact medication
or dosage Plaintiff wanted, but the medical care was uniformly adequate in that Plaintiff’s
expressed need for help with pain and depression and anxiety was consistently treated by
Defendant Tubbs and the rest of USP’s medical staff or outside providers. Plaintiff has not even
disputed this--either by unsupported or supported allegations.
Plaintiff’s whole point is that he, as an unqualified layperson, wanted more or different
treatment from a medical professional, Defendant Tubbs. Plaintiff has not produced any
evidence that Defendant Tubbs, with full knowledge of the deleterious effects of his actions or
inactions, outright ignored or even exacerbated any possible serious medical needs of Plaintiff.
This is assuming Plaintiff’s needs could even be termed as serious, considering the record of
Plaintiff’s nearly constant sick visits with a variety of personnel, who unvaryingly provided
access to medical professionals and medications for pain and psychiatric symptoms. Id.. at 107

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(stating that, when inmate contended “that more should have been done by way of diagnosis and
treatment” and “suggest[ed] a number of options that were not pursued, that was “a classic
example of a matter for medical judgment . . . and does not represent cruel and unusual
punishment”). As a matter of law, Defendant Tubbs’s treatment of Plaintiff, as it is set forth in
documentation provided by both parties simply cannot be said to “offend ‘evolving standards of
decency’ in violation of the Eighth Amendment.” Id.. at 106.
Finally, the allegation that Defendant Garden fabricated medical records is completely
unspecified and unsupported. And, Plaintiff’s due-process claim is not fleshed out enough to
further consider. The claims against Defendant Tubbs are therefore also dismissed.
CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED, and Plaintiff’s Complaint is
DISMISSED with prejudice. This case is CLOSED.
DATED this 30th day of September, 2015.
BY THE COURT:

CLARK WADDOUPS
United States District Judge

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