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Dustin Patrick Lancaster v. Philip Valdez

June 20, 2011

DUSTIN PATRICK LANCASTER,
PLAINTIFF,
v.
PHILIP VALDEZ, KAT AMOS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Currently pending before the Court is Defendant Stander's Motion for Summary Judgment (Dkt. 15). Also at issue is service of process on Defendants Kat Amos and Rory O'Connor. For the reasons set forth below, the Court will: (1) deny Defendant Stander's Motion for Summary Judgment (Dkt. 15); (2) direct the United States Marshal Service to serve Defendants Amos and O'Connor; and (3) refer this case for a settlement conference before United States Magistrate Judge Ronald E. Bush.

BACKGROUND

A. Procedural History

On December 28, 2009, Plaintiff filed this lawsuit regarding the medical care he received after undergoing elbow surgery. Dkt. 3. The surgery took place while Plaintiff was in the custody of the Idaho Department of Correction ("IDOC") and housed at the North Idaho Correctional Institution ("NICI"). Id.. The Court conducted an initial review of Plaintiff's claims, as required under 28 U.S.C. §1915A, and permitted Plaintiff to proceed with Eighth Amendment claims against Defendants Amos, O'Connor, and Stander. Dkt. 8. All other claims were dismissed.

Because Plaintiff is proceeding in forma pauperis, the Court is responsible for service of process. To date, only Defendant Stander has been served.

B. Facts Alleged

The facts are largely undisputed and are derived from Plaintiff's medical records. See Affidavit of Acel Thacker (Dkts. 17, 18). The parties simply dispute whether the treatment Plaintiff received constitutes deliberate indifference.

On April 13, 2009, Plaintiff had elbow surgery due an injury he sustained while playing basketball.*fn1 ICC Lancaster 111 (Dkt. 18). On April 17, 2009, Dr. Steven R. Boyea conducted a post-operation examination of Plaintiff and recommended the following treatment: "The patient will follow up in about two weeks for a cast removal, staple removal and then we will possibly repeat x-rays. If they demonstrate good overall alignment, we may get him into a brace and begin some range of motion activities at that time." Id. at 108.

On May 8, 2009, Plaintiff's cast was removed. Id. at 135. Four days later, on May 12, 2009, Plaintiff was transferred from NICI to the Idaho State Correctional Institution ("ISCI").

Plaintiff alleges that, upon transfer, he told Michael Takagi, a Physician Assistant with Correctional Medical Services, Inc., about his injury. Complaint, p. 4 (Dkt. 3). Takagi's alleged response to Plaintiff was, "Yeah, well you're in prison." Id.

Nevertheless, on May 13, 2009, Takagi referred Plaintiff to physical therapy. ICC Lancaster 59 (Dkt. 18). The treatment note states, "PT referral - to K. Amos." Id. Takagi also noted that Plaintiff was already experiencing a decreased range of motion ("ROM") and "in cell ROM stretches has [sic] not increased ROM." Id.

On May 22, 2009, Dr. Boyea sent to Defendant Amos a letter stating:

It is important that he [Plaintiff] be seen and follow up by an Orthopaedic Surgeon [sic] to make sure the fracture is healing and he gets return of function and motion. He should be out of his cast and be have [sic] started Physical Therapy. When an Orthopaedic Surgeon [sic] is identified please contact me so I can inform them of the injury pattern and operative intervention that was preformed [sic].

Id. at 50.

On June 10, 2009, Takagi submitted a second consultation request for orthopedic assessment and follow up. Id. at 134. Takagi noted that Plaintiff's ROM had decreased and "[Patient] has not yet been started on PT post surgery." Id.

Despite these three separate requests, Plaintiff received no physical therapy while housed at the ISCI. Instead, approximately one month after his transfer from NICI to ISCI, Plaintiff was transferred to the private prison on June 18, 2009.

An Intrasystem Transfer Form dated June 17, 2009 indicates that Plaintiff had no acute or chronic problems, no current treatments, no consultations scheduled, and no follow-up care was needed other than pain medications and anti-inflammatories. Id. ...


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