Needham v. State of Utah et al

Filing 125

Memorandum Decision and Order Granting Motion for Summary Judgment: Granting 87 Motion for Summary Judgment. It is ordered that Defendant's Motion for Summary Judgment is Granted. The inadequate medical-care claim is DISMISSED WITH PREJUDICE. All other Defendants and claims having been dismissed in past orders, this action is CLOSED. Signed by Judge Clark Waddoups on 10/04/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

AARON DAVID TRENT NEEDHAM,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

v.
Case No. 2:15-CV-250-CW
SIDNEY ROBERTS,
District Judge Clark Waddoups
Defendant.

Plaintiff, Aaron David Trent Needham, asserts that Defendant, Sidney Roberts, violated
his right to be free of cruel and unusual punishment under the Eighth Amendment to the United
States Constitution. See 42 U.S.C.S. § 1983 (2019). Specifically, he contends Defendant
provided inadequate medical care during his stay at Utah State Prison (USP). (Doc. No. 37.) His
claim is worded as follows in his Fourth Amended Complaint:
[P]etitioner’s infections got worse as the reduction of antibiotics by
medical to 25% of the recommended dose by Dr. Roberts kept
petitioner sick during his time in the infirmary so when he got to
Baker Block another type of infection attacked petitioner. Dr.
Roberts spoke with petitioner’s doctors to verify medications and
treatment that have resulted in the loss of petitioner’s right kidney.
(Id. at 12.) This is the sole language implicating Defendant and it is therefore the only matter the
Court will address in this Order. 1

1

This case has involved many defendants and many claims that have been pared down over time. In an order on
April 19, 2019, the Court clarified, “The sole remaining defendant in this case is Defendant Roberts and the sole
remaining claim is that Defendant Roberts provided inadequate medical care. Nothing else will be considered by the
Court in this case at any future time.” (Doc. No. 109, at 6.) That means that, even though Plaintiff has continued to
refer to other defendants and other claims since that Order, the only defendant and claim remain Defendant Roberts
and inadequate medical treatment. Nothing else will be discussed or analyzed here.

Defendant filed a Martinez report 2 with medical and other records and his declaration as
to Plaintiff’s treatment. (Doc. No. 84-85 & 121-22.) Plaintiff’s relevant evidentiary response to
the Martinez report consists of copies of medical records, scattered throughout a variety of
documents and many of them duplicative of Defendant’s filings. (E.g., Doc. Nos. 92, 105, 120 &
124.) The Court has examined them all thoroughly.
Defendant now moves for summary judgment on the basis of qualified immunity.
QUALIFIED IMMUNITY STANDARD
When determining whether to grant summary judgment, this Court must examine the
evidence filed by the parties to determine whether any genuine issues of material fact exist and,
if not, correctly apply relevant substantive law to the undisputed facts. Grissom v. Roberts, 902
F.3d 1162, 1167 (10th Cir. 2018).
Individual defendants sued for damages under § 1983 may
raise a defense of qualified immunity. “Qualified
immunity attaches when an official's conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Kisela v. Hughes, 138 S.
Ct. 1148, 1152 (2018) (internal quotation marks omitted). This
standard arises from balancing two important but contrary
2

See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court’s practice of ordering prison
administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging
constitutional violation against institution officials).
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a
Martinez report, saying:
Under the Martinez procedure, the district judge or a United States magistrate
[judge] to whom the matter has been referred will direct prison officials to
respond in writing to the various allegations, supporting their response by
affidavits and copies of internal disciplinary rules and reports. The purpose of
the Martinez report is to ascertain whether there is a factual as well as a legal
basis for the prisoner's claims. This, of course, will allow the court to dig
beneath the conclusional allegations. These reports have proved useful to
determine whether the case is so devoid of merit as to warrant dismissal without
trial.
Id. at 1007.

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interests. On the one hand, “an action for damages may offer the
only realistic avenue for vindication of constitutional guarantees.”
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). On the other
hand, exposing public officials to liability for damages presents its
own “social costs[,] includ[ing] the expenses of litigation, the
diversion of official energy from pressing public issues, and the
deterrence of able citizens from acceptance of public office.” Id.
And, perhaps most significantly, “there is the danger that fear of
being sued will dampen the ardor of all but the most resolute, or
the most irresponsible public officials, in the unflinching discharge
of their duties.” Id. (brackets and internal quotation marks
omitted).
“Because the focus is on whether the officer had fair notice
that her conduct was unlawful, reasonableness is judged against the
backdrop of the law at the time of the conduct.” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (internal quotation marks omitted).
Thus, when a defendant has raised qualified immunity as a
defense, the plaintiff must establish (1) that the defendant's action
violated a federal constitutional or statutory right; and (2) that the
right violated was clearly established at the time of the defendant's
actions. See Thomson v. Salt Lake City, 584 F.3d 1304, 1312 (10th
Cir. 2009). Under this test, “immunity protects all but the plainly
incompetent or those who knowingly violate the law.” Kisela, 138
S. Ct. at 1152 (internal quotation marks omitted).
The test imposes a “heavy two-part burden.” Casey v. W.
Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.
2007) (internal quotation marks omitted). If the plaintiff fails to
satisfy either part of the two-part inquiry, a court must grant the
defendant qualified immunity. See Medina v. Cram, 252 F.3d
1124, 1128 (10th Cir. 2001). The court has discretion to decide
which of the two prongs of the qualified-immunity analysis to
address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“If, and only if, the plaintiff meets this two-part test does a
defendant then bear the traditional burden of the movant
for summary judgment....” Clark v. Edmunds, 513 F.3d 1219, 1222
(10th Cir. 2008) (internal quotation marks omitted).
Id. at 1167-68.
To educate Plaintiff about his duty in responding to a summary-judgment motion, the
Court stated in an order,
Plaintiff is notified that if Defendant moves for summary judgment
Plaintiff may not rest upon the mere allegations in the complaint.
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Instead, as required by Federal Rule of Civil Procedure 56(e), to
survive a motion for summary judgment Plaintiff must allege
specific facts, admissible in evidence, showing that there is a
genuine issue remaining for trial.
(Doc. No. 10, at 5-6.)
Based on the undisputed material facts below, the Court concludes that, under the
qualified immunity defense, Plaintiff has not established the first necessary prong of his burden:
that Defendant’s actions violated a federal constitutional right.
UNDISPUTED MATERIAL FACTS
• Before arriving at USP, Plaintiff had been treated for coccidioidomycosis (Disease) in St.
George, Utah, at Dixie Regional Medical Center (DRMC), by Dr. Jamal Horani, infectious
disease specialist. (Doc. No. 85-3, at 4.)
• Disease is pulmonary- or hematogenous-disseminated disease caused by the fungi Coccidioides
immitis. (Id.) Plaintiff was prescribed anti-fungal medicine fluconazole (brand name: Diflucan)
to treat Disease. (Id.)
• 5/9/11 - Plaintiff’s potential Disease symptoms treated by Dr. Zahabia. (Doc. No. 85-1, at 2-4.)
• 4/17/12 - Dr. William Cobb’s Out Patient Clinic Note indicating Disease blood work done and
Diflucan at 800MG per day prescribed. (Id. at 67.)
• 7/17/12 - Dr. Horani’s Out Patient Clinic Note indicating Disease blood work done and
Diflucan at 800MG per day prescribed. (Id. at 65-66.)
• 10/18/12 - Dr. Horani’s Outpatient Clinic Report indicating Disease blood work done and
Diflucan at 1000MG per day prescribed. (Id. at 63-64.)
• 11/20/12 - Dr. Horani’s Outpatient Clinic Report indicating Disease blood work done and
Diflucan at 1000MG per day prescribed. (Id. at 61.)
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• 1/29/13 - Dr. Horani’s Outpatient Clinic Report indicating Disease blood work done and
Diflucan at 800MG per day prescribed. (Id. at 59.)
• 4/16/13 - Dr. Horani’s Outpatient Clinic Report indicating Disease blood work done and
Diflucan at 800MG per day prescribed. (Id. at 57.)
• 7/17/13 - Dr. Horani’s Outpatient Clinic Report indicating results of examination. (Doc No.
120-2, at 22.)
• 7/30/13 - Dr. Horani’s Outpatient Clinic Report indicating Disease blood work done and
Diflucan at 800MG per day prescribed. (Doc. No. 85-1, at 55.) Dr. Horani wrote the following
letter: “Mr. Needham has a chronic infection that requires lifelong treatment. . . . If you have any
questions, please feel free to contact me at your convenience.” (Doc. No. 124-8, at 2.)
• At relevant time, Defendant was physician at USP. (Doc. No. 85-3, at 3.)
• Unknown dates, apparently soon after Plaintiff entered USP in fall of 2013 - Defendant
reviewed Plaintiff’s DRH records and obtained more information from Dr. Horani, who said that
Plaintiff had been prescribed a lifelong suppressive therapy (fluconazole) with a dosage then at
800 mg. (Id. at 5.) Based on Dr. Horani’s past treatment and concurrence, Defendant set a
treatment plan to do antibody blood tests on Plaintiff every three months as a way of determining
how to best adjust Plaintiff’s fluconazole dosage (trying to balance risk of infection versus risk
of drug’s toxicity). (Id.) In other words, fluconazole dosage would be regularly monitored and
adjusted to ensure medication effectively reduced symptoms while avoiding unwanted side
effects. (Id.) Fluconazole was never discontinued but adjusted to balance need to control
infection against need to avoid toxicity. (Id.) Defendant made Plaintiff aware of treatment plan.
(Id. at 6.) Nurse Aaron Douglas sent Plaintiff’s test results to Dr. Horani every three months to
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update Dr. Horani on Plaintiff’s condition. Defendant based his care of Plaintiff on University of
Utah’s expert recommendations. (Id.)
• 10/16/13 - USP Dr. Burnham noted fluconazole dosage of 800MG and authorized outside
consult at University Medical Center. (Doc. No. 85-1, at 86, 97, 448.)
• 10/20/13 - Plaintiff advised fluconazole would be refilled next day. (Id. at 434.)
• 10/22-11/1/13 - Plaintiff’s medication log showing fluconazole 200MG tablet dispensed four
times per day (except three on 10/26, 10/29, 10/31, and 11/1; and two on 10/30). (Id. at 114.)
• 10/24/13 - Defendant first evaluated Plaintiff, where he presented with Disease. (Doc. No. 853, at 3.) Defendant was unfamiliar with Disease, so sent Plaintiff to University of Utah Infectious
Disease Clinic (IDC) for exam and reordered fluconazole. (Id. at 4.) IDC doctors were also
unfamiliar with this rare Disease. (Id.) Plaintiff signed “Authorization for Release of Medical
Records” regarding his Dr. Horani records to be sent to USP. (Doc. No. 85-1, at 54.)
Intermountain Healthcare Lab Results on Disease Antibodies Panel done. (Id. at 69.)
• 10/30/13 - Plaintiff’s blood test results reported, ordered by Defendant. (Id. at 115.)
• 11/2-11/5/13 - Plaintiff’s medication log showing fluconazole 200MG tablet dispensed four
times per day (except just one on 11/3 and three on 11/5). (Id. at 102.)
• 11/6-11/17/13 - Plaintiff’s medication log showing fluconazole 200MG tablet dispensed AM
and PM, each day (except AM on 11/6, 11/7, 11/14 and 11/15; and PM on 11/12). (Id. at 113.)
• 11/3/13 - 359 days of fluconazole prescribed. (Id. at 77.)
• 11/6/13 - Updated annual fluconazole prescription of one 200MG tablet daily, ordered by
Defendant. (Doc. No. 122, at 18-19.)

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• 11/15/13 - On form entitled, “Outside Consult Detail” (ordered by Dr. Burnham on October 16,
2013), University Medical Center Dr. Clifford Schneider hand wrote, “Drop fluconazole to 400
mg a day. No role for 800 mg of fluconazole for cocci.” (Doc. No. 92-4, at 4.) Next to that was
written by unidentified person: “Do not change dose. Obtain records from St. George IHC and
contact ID physician he sees to discuss dose.” (Id.)
• 11/18 - 12/3/13 - Plaintiff’s medication log showing fluconazole 200MG tablet dispensed AM
and PM, each day (except PM on 11/28 and 12/3). (Doc. No. 85-1, at 102.)
• 11/27/13 - Defendant scheduled blood tests. (Id. at 363.)
• 11/29/13 - Plaintiff’s blood test results reported, ordered by Defendant. (Id. at 107.)
• 12/4/13 - Plaintiff’s blood test results reported, ordered by Defendant. (Id. at 104.)
• 12/7/13 - Thirty days of anti-fungal cream prescribed. (Id. at 76.)
• 1/22/14 - Blood tests ordered. (Id. at 262.)
• 2/4/14 - Blood test results reported, ordered by Defendant. (Doc. No. 92-4, at 14.)
• 4/5/14 - Blood test results reported, ordered by Defendant. (Doc. No. 92-4, at 23.)
• 5/29/14 - Updated annual fluconazole prescription of four 200MG tablets daily, ordered by
Defendant. (Doc. No. 122, at 18.)
• 7/5/14 - Blood test results reported, ordered by Defendant. (Doc. No. 92-4, at 34.)
• 10/17/14 - Blood test results reported, ordered by Defendant. (Doc. No. 122, at 7.)
• 2/21/17 - Notes from office visit to University of Utah kidney specialist, requested by Dr.
Burnham, regarding “atrophic right kidney.” (Doc. No. 124-9, at 2.) Specialist, Dr. Andrea
Nelson, outlined history of illness:
Aaron David is a 48 year old gentleman with history of paraplegia
at the age of 18, wheel chair bound and with multiple infections
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followed by Dr. Rosado who is here for evaluation of right
atrophic kidney seen on CT enterography last month. He has about
2 UTI’s per year, did not have recurrent infections as a child and
only developed urinary infections after self cathing started when he
became paralyzed at age 18. No history of kidney stones. He was
placed on Bactrim yesterday and stopped the levofloxacin. K in
January was 5.1, not repeated. Urinalysis consistently negative for
protein and kidney function has been normal.
(Id.) Dr. Nelson’s assessment was: “Atrophic right kidney: likely congenital and no history of
reflux or recurrent infections prior to paraplegia at age 18. This is likely not a site of recurrent
infections as he only has about 1-2 per year and self catheterizes.” (Id.)
• 6/4/17 - Plaintiff signed Fourth Amended Complaint at issue here. (Doc. No. 37, at 15.)
• Defendant’s treatment of Disease would have had no effect on Plaintiff’s kidney issues. (Doc.
No. 85-3, at 7.) 3
ANALYSIS
To succeed under the Eighth Amendment, Plaintiff must demonstrate acts or omissions
harmful enough to show deliberate indifference that offends “’evolving standards of decency.’”
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted). That amendment proscribes only
deliberate indifference constituting the “’unnecessary and wanton infliction of pain.’” Id. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion)). Moreover, Plaintiff must
“allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id. at 104 (emphasis added). Plaintiff has to show that Defendant’s actions were
more than negligent. After all, negligent failure to give sufficient medical care, even touching
medical malpractice, does not equal a constitutional violation. Id. at 106.

3

Plaintiff recently filed medical records discussing treatment after June 4, 2017. (Doc. No. 124.) These records are
disregarded as they are dated beyond the claim stated in the Fourth Amended Complaint. (Doc. No. 37.)

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Estelle’s deliberate-indifference standard has an objective component asking whether
the alleged deprivation is “sufficiently serious,” and a subjective component asking whether the
defendant official “knows of and disregards an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). The subjective component
questions whether prison officials acted with a “sufficiently culpable state of mind.” Clemmons
v. Bohannon, 956 F.2d 1523, 1525-26 (10th Cir. 1992). “[E]ven if a prison official has
knowledge of a substantial risk of serious harm to inmates, he is not deliberately indifferent to
that risk unless he is aware of and fails to take reasonable steps to alleviate the risk.” Tafoya v.
Salazar, 516 F.3d 912, 916 (10th Cir. 2008). Thus, Plaintiff must show he suffered from a
serious condition that Defendant knew about and ignored, and that by ignoring Plaintiff’s
condition, or failing to take reasonable steps to alleviate the risk, Defendant caused Plaintiff
serious physical harm or the unnecessary, wanton infliction of pain.
Here, Plaintiff’s claims fail because Defendant did not disregard substantial risk of
serious harm to Plaintiff’s health. Rather, based on uncontroverted evidence, Defendant
answered each of Plaintiff’s numerous medical requests and referred him out for testing and
treatment as deemed necessary.
When the only dispute about a prisoner’s medical treatment regards adequacy, “’courts
are generally reluctant to second guess [professional] medical judgments.’” Maez v. Merrill,
No. 2:07-CV-986 TC, 2008 U.S. Dist. LEXIS 72842, at *6-7 (D. Utah September 23, 2008)
(unpublished) (quoting Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)); see Fitzke v.
Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972). Mere disagreement between a prisoner and
prison medical staff as to diagnosis or treatment does not support a deliberate-indifference
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claim. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); LeDoux v. Davies, 961 F.2d 1536,
1536 (10th Cir. 1992). Eighth Amendment violations occur only when medical treatment is so
grossly incompetent, inadequate, or excessive as to “’shock the conscience or be intolerable to
fundamental fairness.’” Whitehead v. Burnside, 403 F. App’x 401, 403 (11th Cir. 2010)
(citation omitted). An inmate’s belief that he should have been treated differently does not
show “deliberate indifference.” Scott v. Gibson, 37 F. App’x 422, 423 (10th Cir. 2002)
(unpublished) (citation omitted).
Here, Plaintiff’s claims are, at best, a “difference of opinion” as to his fluconazole
dosage during a temporary span of time. See Olson 9 F.3d at 1477. From the moment
Defendant first saw Plaintiff, he jumped to action, calling past medical providers, requesting
records, consulting with outside specialists, and tailoring a special treatment plan to Plaintiff’s
very specific needs. The extensive medical records before the Court reveal that on a regular
basis and whenever Plaintiff reported symptoms, his treatment was reviewed, exams done,
observations made, testing arranged, prescriptions offered, and medical equipment and woundcare conscientiously provided. Most importantly, given the claim specifies that a lower dosage
of fluconazole was given for a time than Plaintiff thought necessary, fluconazole was never
denied; the dosage was just regularly adjusted based on blood-test results.

10

Plaintiff’s allegations that he did not receive adequate and necessary medical care boil
down to nothing more than Plaintiff’s differing opinion as to the judgments made by medical
professionals 4 who continually evaluated Plaintiff’s conditions during the time in question.
Plaintiff’s medical records clearly show his concerns and requests were consistently addressed.
As a matter of law, offering treatment based on a professional’s medical judgment, even
if it is not what an inmate wants, does not rise to the level of deliberate indifference. Self v.
Crum, 439 F.3d 1227, 1232-33 (10th Cir. 2006) (“[T]he subjective component is not satisfied,
absent an extraordinary degree of neglect, where a doctor merely exercises his considered
medical judgment. Matters that traditionally fall within the scope of medical judgment are such
decisions as whether to consult a specialist . . . [W]here a doctor orders treatment consistent
with the symptoms presented and then continues to monitor the patient’s condition, an
inference of deliberate indifference is unwarranted under our case law.”). Also, when records
show an inmate has been monitored, attended to, and treated often, the inmate cannot show
deliberate indifference. Wingfield v. Robinson, No. 10-CV-01375, 2011 U.S. Dist. LEXIS
125825, at *32 (D. Colo. August 10) (missing subjective intent for deliberate indifference when

4

Plaintiff states in one argument:
Dr. Clifford Schneider authorization to reduce the dosage to 200
mg fluconazole ignoring the test results on 1-29-2014 showing the
effects of the disease were rising that by April 1, 2014 the titer
score was 1:16 increasing the effects of the disease. . . . In exhibit
7 the titer score remained at 1:16 that happen to be at the same
time on April 9, 2014 and May 30, 2014.
(Doc. No. 124-2, at 1.)
This evinces a recognition that Defendant was not even necessarily the one to “authorize”
a lower dosage. It also shows that Plaintiff understood that there was a team approach to his
medical care; Defendant involved many people, including this specialist who apparently opined
at one point that the fluconazole dosage should be lowered based on his medical judgment.
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defendants responded to grievances, examined plaintiff, and prescribed treatment more than
fifteen times). Here, Plaintiff was consistently evaluated by Defendant and others. And,
Plaintiff’s medical records show that Plaintiff received ongoing medical help from Defendant
and others for each medical issue raised.
As noted, Plaintiff sues Defendant because he disagrees with a medication dosage
adjusted temporarily. But, an “informed judgment” as to appropriate treatment does not amount
to deliberate indifference. Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986). Here, even if
Plaintiff could prove that alternative treatment was medically appropriate, Plaintiff still cannot
meet his burden of showing Defendant was unreasonable in relying on his own judgment and test
results, and administering treatment accordingly. And, the undisputed evidence shows that
Plaintiff’s kidney issues were not linked to his fluconazole dosage.
The undisputed material facts show Defendant was not deliberately indifferent to
Plaintiff’s medical treatment. Thus, Defendant’s actions did not violate a federal constitutional
right and he is due qualified immunity.
CONCLUSION
IT IS ORDERED that Defendant’s Motion for Summary Judgment is GRANTED, (Doc.
No. 87). The inadequate-medical-care claim is DISMISSED WITH PREJUDICE. All other
Defendants and claims having been dismissed in past orders, this action is CLOSED.
Dated this 4th day of October, 2019.
BY THE COURT:

________________________________
JUDGE CLARK WADDOUPS
United States District Court
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