MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
The following motions are pending before the Court at this time: (1) Defendant Kat (Katherine) Amos's Motion for Summary Judgment (Dkt. 106); (2) Defendants Dr. Klint Stander and Physician's Assistant (PA) Rory O'Connor's Motion for Summary Judgment (Dkt. 107); (3) Plaintiff's Motion to Strike (Dkt. 109); (4) Defendants Stander and O'Connor's Motion to Strike Paragraph Six of the Affidavit of Dustin Lancaster (Dkt. 118); and (5) Defendant Kat Amos's Motion to Strike Paragraphs Five and Six to the Affidavit of Dr. Paul Collins Filed August 1, 2013 (Dkt. 120).
All parties have consented to proceed before a United States Magistrate Judge. (Dkt. 73.) Having reviewed the record in this matter, and having considered the arguments of the parties in their briefing and at oral argument on November 25, 2013, the Court enters the following Order.
Plaintiff filed this prisoner civil rights case in December 2009, alleging that he received constitutionally inadequate medical care while incarcerated at two Idaho Department of Correction (IDOC) facilities. Following review under 28 U.S.C. §§ 1915(e) and 1915A, Plaintiff was permitted to proceed with his Eighth Amendment claims against Defendants Amos, O'Connor, and Stander. (Dkt. 8.) Discovery disputes ( see Dkts. 58, 85, 90), delays in serving all of the Defendants ( see Dkt. 64), two separate appearances of counsel for Plaintiff (Dkts. 43, 78), and a belated motion to amend the First Amended Complaint (Dkt. 83) all contributed to the protracted pretrial phase of this case.
On July 8, 2013, Defendants filed their Motions for Summary Judgment, after which the parties filed Cross-Motions to Strike portions of the supporting Affidavits and Declarations. Based on the record before the Court, the Motions to Strike will be denied, Defendant O'Connor's Motion for Summary Judgment will be granted, and Defendant Amos's and Defendant Stander's Motions for Summary Judgment will be denied. By request of the parties, this case will proceed to Alternative Dispute Resolution, with any remaining claims proceeding to jury trial beginning January 27, 2014.
MOTIONS FOR SUMMARY JUDGMENT
1. Standard of Law
A. 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 in 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. The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and 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 issue (dispute) as to any 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." Fed. R. Civ. P.56(e)(3).
B. Section 1983 Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To state a claim under § 1983, Plaintiff must show the existence of four elements: "(1) a violation of rights protected by the Constitution or created by federal statute (2) proximately caused (3) by conduct of a person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Section 1983 is "not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
"Liability under section 1983 arises only upon a showing of personal participation by the defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). In other words, Plaintiff must show that Defendants' actions caused the deprivation of a constitutional right. 42 U.S.C. § 1983; Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). "The causation requirement of § 1983... is not satisfied by a showing of mere causation in fact[;] [r]ather, the plaintiff must establish proximate or legal causation." Id. The United States Court of Appeals for the Ninth Circuit has explained: "A person subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivations of which he complains." Id. (internal citation omitted).
C. Eighth Amendment Claims of Inadequate Medical Care
To state a claim under the Eighth Amendment, 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). An Eighth Amendment claim requires a plaintiff to satisfy "both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard- deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
Regarding the objective standard for prisoners' medical care claims, the Supreme Court of the United States has explained "[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.'" Hudson v. McMillian, 503 U.S. 1, 9 (1992).
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) (internal citations omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
As to the subjective standard, a prison official acts with "deliberate indifference... only if the [prison official] knows of and disregards an excessive risk to inmate health and safety." Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). "Under this standard, the prison official must not only be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, ' but that person must also draw the inference.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837). "If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk." Gibson, 290 F.3d at 1188 (citation omitted). Nonetheless, "whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that defendant actually knew of a risk of harm).
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. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). "[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment was medically unacceptable under the circumstances, ' and was chosen in conscious disregard of an excessive risk' to the prisoner's health." Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). Nor does the Eighth Amendment provide a right to a specific treatment. See Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) ("[The plaintiff] is not entitled to demand specific care. She is not entitled to the best care possible. She is entitled to reasonable measures to meet a substantial risk of serious harm to her."). Finally, a mere delay in treatment does not constitute a violation of the Eighth Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060.
2. Undisputed Facts
This section includes facts that are undisputed and material to the resolution of the issues in this case. Where material facts are in dispute, the Court has included Plaintiff's version of facts.
At the time of the allegations in this lawsuit, Plaintiff was an inmate in the custody of the Idaho Department of Correction (IDOC). In April 2009, Plaintiff injured his left elbow while incarcerated at North Idaho Correctional Institution (NICI). (Dkt. 107-12, pp.6-7.) He had surgery on his elbow the next day, and his arm was in a cast until May 8, 2009. ( Id., p.7.)
On May 12, 2009, Plaintiff was transferred to the Idaho State Correctional Institution (ISCI) and the next day, ISCI Physicians Assistant (PA) Takagi examined Plaintiff and noted that "in-cell ROM [range of motion] stretches has [sic] not increased ROM." PA Takagi completed a consultation request that stated: "Physical Therapy x 1 w/ in cell exercise instruction." (Dkt. 108, p.117.) At the top of the request, both the "off-site" and the "on-site clinic" boxes were checked, with the clarifying note, "whichever available sooner." The boxes denoting "Urgent, " "Routine, " or "Retro Request, " were not marked. Another handwritten note at the top of the request read: "Sent to K. Amos 5-13-09, " and the note is initialed by "S.V." ( Id. ) A Physician's Orders Notation from the same date similarly shows, "Pt referal [sic] - to K. Amos, " signed by LPN S. Voorstead. (Dkt. 108-2, p.4.)
Defendant Katherine Amos is "Kat" or "K." Amos, the intended recipient of the consultation request. At the time, she was the "off-site scheduler" for ISCI. (Dkt. 106-3, p.2.) In her job as the off-site scheduler, Ms. Amos did not physically assess an inmate's medical condition, diagnose or treat inmates, nor could she order off-site or on-site consultations. ( Id. ) Rather, Ms. Amos received consultation requests from ISCI medical providers and then forwarded them to the Regional Medical Director for approval. She could not schedule an off-site consultation without such approval. ( Id. ) It was her usual and customary practice to stamp, date and initial the consultation requests that she had sent to the Regional Medical Director and place them in a file so she knew which requests were outstanding. ( Id. ) Once she received the Director's response, she would either forward the denial back to the requesting medical provider, or if the request was approved, she would schedule the off-site appointment. ( Id., pp.2-3.)
On May 15, 2009, Plaintiff filed an Offender Concern Form requesting physical therapy for his broken arm (Dkt. 107-12, p.25).
On May 22, 2009, orthopaedic surgeon Dr. Boyea faxed a letter addressed to "Kat, IDOC, " stating: "It is important that he [Plaintiff] be seen and follow [sic] up by an Orthopaedic [sic] Surgeon 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 [sic] Surgeon is identified, please contact me so I can inform them of the injury pattern and operative intervention that was preformed [sic]." (Dkt. 106-5, p.4.) There is a handwritten note of "F/u w/provider OPC 1 week, " dated "6/9/09" on the face of the letter. ( Id. )
On June 3, 2009, Plaintiff filed a grievance, stating: "I shattered my radius on 4-13-09 in Cottonwood. I had surgery on 4-13-09 where I had 9 screws and a metal plate in to hold my bone together. I was suppose [sic] to start physical therapy on 5-4-09 according to my surgeon. At this point, I cannot move my left arm and I am in a lot of pain. (Dkt. 114-1, p.1.) On June 10, 2009, that grievance was routed to Director of Nursing J. Donaldson for response. ( Id. )
On June 10, 2009, PA Takagi completed a consultation request for Plaintiff that said: "Orthopedic assessment & follow-up." Within the "described signs and symptoms" portion of the request, Takagi noted: "[Patient] has not yet been started on PT post surgery." Takagi also noted that, "his orthopaedic surgeon has sent a letter requesting this follow-up which I have included." (Dkt. 108, p.116.) The request is not marked "Urgent, " "Routine, " or "Retro Request." ( Id. )
On June 18, 2009, Plaintiff was transferred to the Idaho Correctional Center (ICC). His medical records were not transferred at this time; the two intrasystem transfer forms that were sent to ICC listed Plaintiff's current medication, but indicated he had no current acute problems, no current treatments, and no physical disabilities. (Dkt. 108-4, pp.1-2.) The ICC nurse who completed Plaintiff's Initial Health Screening Form on June 18, 2009, noted Plaintiff's medications and a "contracture of left elbow" but did not refer Plaintiff to a medical provider. (Dkt. 108, p.7; Dkt. 107-5, p.3.)
The response to the June 3, 2009 grievance about the lack of physical therapy is marked "Date Due Back: 6/20/09." (Dkt. 114-1, p.1.) On July 5, 2009, Director of Nursing J. Donaldson provided the following written response to the grievance:
You were moved to the ICC Facility and your medical issues should be addressed by the staff there. I talked to Kat Amos who is our offsite scheduler and she tells me you were scheduled and seen by our Physical Therapy staff on site. If you are continuing to have problems please ask the Medical Staff at ICC to address your needs.
( Id. )
There are no allegations that Ms. Amos had any further involvement in Plaintiff's care after this date. The remainder of the facts concern Plaintiff's medical care at the new facility, ICC.
Defendant Rory O'Connor was employed as a Physician's Assistant (PA) at ICC and provided medical care to Plaintiff from June 18, 2009 through September 24, 2009. (Dkt. 107-6, pp.1-2.) From September 2008 to March 2011, Dr. Klint Stander was employed as the ICC Medical Director and Lead Physician; part of his duties included supervising the ICC medical staff, including PA O'Connor. Dr. Stander personally oversaw Plaintiff's medical care while Plaintiff was housed at ICC. (Dkt. 107-7, pp.1-2.) The medical care and treatment provided to Plaintiff by Defendants O'Connor and Stander is summarized as follows:
July 6, 2009 PA O'Connor examined Plaintiff for an unrelated medical condition but noted "left arm flexion contracture due to delay in PT to work on ROM following surgery"; planned to take x-rays, consult with orthopedics and "attempt to set up PT to try and improve ROM" (Dkt. 108, p.48.)
July 13, 2009 Plaintiff filed a grievance form at ICC complaining about his left arm and requested "proper medical attention" including physical therapy and something for the pain (Dkt. 114-2, p.1.)
July 15, 2009 Plaintiff's grievance of July 13, 2009, was rejected for failure to attach a Concern Form and for having exhausted this issue when he filed his June 3, 2009 grievance at ISCI (Dkt. 114-3, p.1.)
Aug. 4, 2009 PA O'Connor re-ordered x-rays for Plaintiff's left elbow upon realizing the ICC nurse failed to enter the July 6, 2009 request for x-rays (Dkts. 108, p.37; 107-6, p.7; 107-8, p.2.)
Aug. 6, 2009 X-rays were taken of Plaintiff's left elbow (Dkt. 108, p.19.)
Aug. 20, 2009 Dr. Stander received a copy of third party radiologist report (dated August 14, 2009) summarizing the findings of Plaintiff's August 6, 2009 x-rays (Dkt. 108, p.19.)
Aug. 25, 2009 PA O'Connor re-ordered x-rays of Plaintiff's arm because he did not see the August 14, 2009 radiology report from the previous x-Rays in Plaintiff's medical file (Dkts. 107-6, p.7; 108, p.31.)
Aug. 31, 2009 PA O'Connor reviewed the third party radiologist report dated August 28, 2009 regarding Plaintiff's second set of x-rays ( Id. )
Sept. 3, 2009 PA O'Connor ordered an orthopedic consult regarding Plaintiff's left elbow (Dkt. 108, p.36)
Sept. 6, 2009 Plaintiff submitted a Health Services Request Form (HSR) complaining that "my arm hurts and I ...