United States District Court, D. Idaho
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For Neal Wayne Caplinger, Plaintiff: Aaron Joseph Tribble, LEAD ATTORNEY, Tribble Law Firm, Eagle, ID.
For CCA, Tim Wengler, Thomas Kessler, Acel K Thacker, Acel K Thacker, Defendants: Tyler D Williams, LEAD ATTORNEY, Naylor and Hales, P.C., Boise, ID; Kirtlan G Naylor, NAYLOR & HALES, Boise, ID.
For Dan Lambert, Defendant: Tyler D Williams, Naylor and Hales, P.C., LEAD ATTORNEY, Naylor and Hales, P.C., Boise, ID.
MEMORANDUM DECISION AND ORDER
Honorable B. Lynn Winmill, Chief United States District Judge.
Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC) and incarcerated at Idaho Correctional Center (ICC), is represented by counsel in this civil rights matter. Defendants have filed a Motion to Dismiss, arguing that (1) Plaintiff's claims against Defendants Wengler, Kessler, and Thacker must be dismissed for failure to exhaust administrative remedies, and (2) Plaintiff's claims against Defendants Thacker and Lambert must be dismissed for failure to state a claim upon which relief may be granted. (Dkt. 18.) Defendants have also filed a Motion for Summary Judgment. (Dkt. 61.)
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record and that the decisional process would not be significantly aided by oral argument. Accordingly, the Court will decide this matter on the record without oral argument. D. Idaho L. R. 7.1. For the reasons that follow, the Court concludes that there is no genuine dispute as to any material fact and that Defendants are entitled to judgment as a matter of law. Therefore, Defendants' Motion for Summary Judgment will be granted, and the Court need not address Defendants' Motion to Dismiss.
Plaintiff filed the instant action in October 2012. He claims that he has not received adequate prison medical care as required by the Eighth Amendment to the United States Constitution. Plaintiff sues Corrections Corporation of America (CCA), the private prison operating ICC under contract with the IDOC, as well as several CCA employees--Physician's Assistant Dan Lambert, Dr. David Agler, Health Services Administrator Acel Thacker, Assistant Warden Thomas Kessler, and former Warden Tim Wengler.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1. Factual Background
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, insofar as that version is not contradicted by clear documentary evidence in the record. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (" When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." )
A. Plaintiff's Injury and Medical Treatment
In August 2010, Plaintiff fell in the kitchen where he worked at ICC, injuring
his right wrist. Defendant Lambert " immediately" evaluated Plaintiff. (Compl., Dkt. 1, at ¶ 14.) Lambert " initially assessed a sprained wrist, splinted it[,] and ordered an x-ray to further define the injury." (Lambert Decl., Dkt. 22-4, at ¶ 3.)
A week after the initial examination, Plaintiff had the x-ray, which showed no fractures or other abnormalities. ( Id. at ¶ 4.) Lambert informed Plaintiff that the x-ray was normal. Because Plaintiff was still experiencing pain, Lambert evaluated Plaintiff again on November 12, 2010 and ordered a second x-ray; this x-ray also showed " no fracture or other bony abnormality." (Def. Stmt. of Undisp. Facts, Dkt. 22-2, ¶ 6; Pl. Stmt. of Disp. Facts, Dkt. 26-1, ¶ 6.) Because Lambert suspected a ligament injury, he referred Plaintiff to Defendant Dr. Agler " for further evaluation and consideration of a hand surgery consultation." (Agler Decl., Dkt. 22-3, ¶ 10.) P.A. Lambert left his employment with ICC on November 30, 2010, and had no further contact with Plaintiff. (Def. Stmt. Undisp. Facts ¶ 6; Pl. Stmt. Disp. Facts ¶ 6.)
Plaintiff submitted a Health Service Request form on November 29, 2010. He was examined the next day by Bryce Aitkin, a nurse practitioner, who ordered a follow-up with Defendant Agler. (Def. Stmt. Undisp. Facts ¶ 7; Pl. Stmt. Disp. Facts ¶ 7.) Dr. Agler evaluated Plaintiff's wrist approximately a week later, on December 7, 2010. Plaintiff refused Dr. Agler's suggestion of a cortizone injection, and Dr. Agler " decided to hold off doing an MRI for the time being to see if [Plaintiff's] wrist would improve with time." ( Id. ) Agler ordered a follow-up in one month. ( Id. )
The follow-up examination was performed by N.P. Aitkin on January 4, 2011. (Def. Stmt. Undisp. Facts ¶ 8; Pl. Stmt. Disp. Facts ¶ 8.) Aitkin noted that Plaintiff's condition had not improved, even though (1) Plaintiff's wrist had been in a splint, (2) he had been taking anti-inflammatory and pain medication, and (3) he had had two normal x-rays. Therefore, Aitkin referred Plaintiff to an offsite orthopedic specialist, and that order was approved on January 10. ( Id. ; Thacker Decl., Dkt. 22-5, ¶ 21.)
According to Defendant Thacker, who is the custodian of Plaintiff's medical records, Plaintiff was scheduled to see an offsite doctor at Mountain States Hand Clinic on February 21, 2011, but that on February 10, the clinic canceled the appointment because February 21 was a holiday. (Thacker Decl. ¶ 21.) Plaintiff takes issue with this statement, contending that Thacker should be disbelieved because the cancellation " has no basis in reason," given that Thacker is " trying to say that the offsite doctor was too stupid to know ahead of time that [the appointment] was scheduled for a holiday." (Pl. Stmt. Disp. Facts, ¶ 9.) Plaintiff contends that, instead, " [e]ither the offsite doctor was never consulted about scheduling the appointment, or the Defendants' scheduler was lying when they [sic] said they [sic] booked the appointment."  ( Id. )
To the contrary, it is Plaintiff who is engaging in improper speculation here. The Court sees nothing " ridiculous" ( id. ) about a doctor's office booking an appointment and later realizing that the office would be closed on President's Day. Doctors' offices are busy places, and President's Day is not like Independence Day, which falls on the same day every year. Many businesses remain open on President's
Day, and the decision to close the clinic that day might have been made after some appointments were already scheduled. The medical records support Thacker's statement that on February 10, 2011, the appointment was cancelled and that the reason given was " president's day[,] need to reschedule." (Ex. A to Thacker Decl., ICC Caplinger 980.) Plaintiff's further objection that Thacker is " only relaying hearsay" is hollow. (Pl. Stmt. Disp. Facts ¶ 9.) The medical records would clearly meet the business records exception to the rule against hearsay, and Thacker, as the custodian of those records, is competent to testify as to their content. See Fed.R.Evid. 803(6).
Plaintiff's offsite appointment was rescheduled for March 23, 2011. However, that appointment was also cancelled, for an unknown reason, and rescheduled for April 4, 2011. (Thacker Decl., ¶ ¶ 22-23.) On that date, Plaintiff was examined offsite by orthopedic hand surgeon Dr. Troy Watkins, who noted that surgery might be indicated but that he would wait to make a final recommendation until Plaintiff had an MRI. (Compl., ¶ 20.) However, Dr. Watkins did not send his report to ICC until May 12, 2011. (Agler Decl. ¶ 22; Def. Stmt. Undisp. Facts ¶ 11; Pl. Stmt. Disp. Facts ¶ 11.) In the meantime, Dr. Agler evaluated Plaintiff on April 13 and re-ordered a prescription for Mobic, as Plaintiff stated that it helped to lessen his pain. (Def. Stmt. Undisp. Facts ¶ 11; Pl. Stmt. Disp. Facts ¶ 11.)
On May 3, 2011, still having not received Dr. Watkins's report, Agler ordered an MRI of Plaintiff's wrist, which was scheduled for June 6, 2011. ( Id. ; Agler Decl. ¶ 24.) Dr. Agler examined Plaintiff again on May 9, 2011, and Plaintiff underwent a second x-ray on June 2, 2011. This third x-ray again showed no abnormalities. (Def. Stmt. Undisp. Facts ¶ 11; Pl. Stmt. Disp. Facts ¶ 11; Agler Decl. ¶ 28.)
The MRI was performed on June 6, 2011, at St. Luke's Regional Medical Center. The MRI revealed that Plaintiff had an avulsion fracture, which had not appeared on the x-rays because " x-rays are not as sensitive as MRIs." (Agler Decl. ¶ 29.) An avulsion fracture occurs when a " ligament is strained to the point that it pulls away a small piece of bone from where it is attached." ( Id. ) In Plaintiff's case, the separation of the ligament caused the space between the scaphoid and lunate bones (two of the small bones in the wrist) to widen. ( Id. )
The day after the MRI, Dr. Agler ordered a follow-up examination with Dr. Watkins for July 8. However, on the day of the appointment Dr. Watkins cancelled, citing an emergency. (Def. Stmt. Undisp. Facts ¶ 13; Pl. Stmt. Disp. Facts ¶ 13.) The appointment was rescheduled for August 15. In the meantime, Plaintiff was examined by Aitkin on July 29, 2011 and given a wrist brace. ( Id. )
Plaintiff was seen on August 15 by Dr. Watkins, but Dr. Watkins did not send his report to Dr. Agler until September 19, 2011. (Thacker Decl. ¶ 27.) That report recommended surgery, which Dr. Agler ordered the day he received the report. ( Id. ) According to Plaintiff's medical records, the appointment was scheduled for October 11, but ...