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Mark W. Cutler v. Correctional Medical Services (Cms)

September 26, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge


Pending before the Court are various motions filed by the parties that are ripe for adjudication. The Court ordered the parties to supplement the record, and the supplements have been filed. (Dkt. 92, 93, 94, 95.) Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


When Plaintiff Mark Cutler (Plaintiff) filed his lawsuit, he was in the custody of the Idaho Department of Correction (IDOC). He has now completed his sentence, and is in the custody of the Bonner County Jail. (Dkt. 9.) Plaintiff's claims arise from his IDOC incarceration at the Idaho Correctional Institution - Orofino (ICIO).

Previously in this case, the Court determined that Plaintiff could proceed against:

(1) Kim Miller, Linda Gehrke, and CMS on Plaintiff's claims of failure to provide care for chronic pain and suffering in Plaintiff's left hand and failure to provide adequate pain medication for chronic neck pain and headaches from April 2008 to March 2009; and (2) all CMS Defendants for failure to provide adequate treatment for Hepatitis C from January 2007 through March 2009.

All other claims against the Defendants were dismissed without prejudice. (Dkt. 41.) Plaintiff was required to provide a new service address for Dr. Garrett no later than May 31, 2010, and Plaintiff was notified that his failure to do so would result in dismissal of the claims against Dr. Garrett. (Dkt. 48.) Plaintiff failed to timely provide a new service address for Dr. Garrett to the Clerk of Court; thus all claims against Dr. Garrett were dismissed without prejudice. (Dkt. 50, 54.)


The parties were ordered to supplement the record regarding several unclear items in the record. (Dkt. 89.) The supplements have been filed and reviewed. (Dkt. 92, 93, 94.)

In addition, Plaintiff filed a "Motion and Affidavit Informing the Court," where he alleges that Defendants intentionally supplied incorrect information to the Court, and he asks the Court "to file criminal charges upon the Defendants for lying to the court." (Dkt. 95, p. 3.)

Upon a review of the record, the Court finds no evidence that Defendants intentionally attempted to mislead the Court by stating that an x-ray was an MRI; rather, it appears to have been a mistake, because Defendants explain that "[t]here was mention of an MRI in the order as well as an order for an x-ray to be taken of plaintiff's cervical spine, which was the reason for the error." (Dkt. 94, p. 2.) The medical record at issue is hardly legible. (Dkt. 66-8, p. 18.) The report itself does not clearly identify the type of test performed. (Dkt. 66-11, p. 22.) Defendants corrected their mistake when it was brought to their attention. (Id.)

The CMS Defendants were unable to find a medical record clearing Plaintiff for firefighting. Plaintiff states he fought fires until he fell at the sawshop and injured his neck, which appears to have been about April 2002. (Dkt. 93.) The medical record that Defendants referenced, a Progress Note of 4/10/08, is a rambling list of Plaintiff's physical activities over "the past 6-8 years." (Dkt. 94-1.) With Plaintiff's additional information, it is now clear that the reference was Plaintiff's past fitness for firefighting, rather than a notation that Plaintiff was presently cleared for fire fighting. Again, this appears to be a misreading by Defendants of an ambiguous medical record, rather than an intentional misrepresentation.

Neither the MRI reference nor the firefighting reference is essential to the Court's decision-making in this case. Sanctions are not appropriate on this record. Defendants' counsel are cautioned to take a greater degree of care in reviewing the medical records and preparing their affidavits in the future.*fn1 At the same time, the Court notes that seldom is there a mistake-free record in any case. Accordingly, Plaintiff's Motion will be denied.


All remaining Defendants assert entitlement to summary judgment on all of Plaintiff's remaining claims. (Dkt. 66, 71.) Plaintiff opposes summary judgment, asserting he has brought forward sufficient evidence to proceed to trial.

1. Standard of Law Governing Summary Judgment

Summary judgment is appropriate where a party can show that, as to any claim or defense, "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). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no genuine dispute as to any material fact. "Material facts are those that may affect the outcome of the case." See id. at 248.

The moving party is entitled to summary judgment if that party shows that each material issue of fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the materials cited do not establish the presence of a genuine dispute, or that the adverse party is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).

Material used to support or dispute a fact must be "presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted in support of or opposition to a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. All inferences which can be drawn from the evidence must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31 (internal citation omitted). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine dispute as to a material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving party "if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it."

2. Law Governing Eighth Amendment Claims

To state a claim under the Eighth Amendment, a plaintiff must show that he is incarcerated "under conditions posing a substantial risk of serious harm," or that he has been deprived of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citation omitted). To prevail on an Eighth Amendment claim regarding prison medical care, Plaintiff must show that prison officials' "acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs." Hudson v. McMillian, 503 U.S. 1, 8 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)). The Supreme Court has opined that "[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Id.

The Ninth Circuit has defined a "serious medical need" in the following ways: failure to treat a prisoner's condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain; . . . [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.

McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

Deliberate indifference exists when an official knows of and disregards a serious medical condition or when an official is "aware of facts from which the inference could be drawn that a substantial risk of harm exists," and actually draws such an inference. Farmer v. Brennan, 511 U.S. 825, 838 (1994). Thus, a defendant is liable if he knows that a plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. See Sanchez v. Veld, 891 F.2d 240, 242 (9th Cir. 1989).

Mere indifference, medical malpractice, or negligence will not support a cause of action under the Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th Cir. 1980). A mere delay in treatment does not constitute a violation of the Eighth Amendment, unless the delay causes serious harm. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

In Estelle v. Gamble, supra, Mr. Gamble suffered a back injury while working at his inmate job when a 600-pound bale of hay fell on him. Doctors and other medical providers at the prison prescribed rest and a variety of medications, including different pain relievers and muscle relaxers. Gamble argued that the medical providers were deliberately indifferent ...

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