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Moore v. York

United States District Court, D. Idaho

February 19, 2014

ALBERT RAY MOORE, Plaintiff,
v.
RORY YORK, NURSE JOHNS, JANES, and DOES, Defendants.

MEMORANDUM DECISION AND ORDER

RONALD E. BUSH, Magistrate Judge.

Defendants Dr. Phillip Petersen, Kim Miller, Linda Gehrke, and Connie Smock have filed a Motion to Dismiss, which is now fully briefed. (Dkt. 12, 14, 15, 16.) All parties who have appeared to date have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 27.) See 28 U.S.C. § 636© and Fed.R.Civ.P. 73. Having reviewed the record in this matter, and having considered the argument of the parties, the Court concludes that oral argument is unnecessary, and enters the following Order.

REVIEW OF MOTION TO DISMISS

1. Background

On June 13, 2011, while Plaintiff was a prisoner, he was thrown from his seat while riding in a prison transport vehicle. Plaintiff claims that the incident caused a left inguinal hernia. The fact that he suffered from a hernia was confirmed by prison medical staff in or about August 2011.

Plaintiff's condition worsened with time, and he was denied surgery several times. Plaintiff alleges that he was "in constant pain continually having to push his inside back inside." (Complaint exhibits, Dkt 3-5, p. 4.) In September 2011, his hernia was easily reducible, and he was required to wear a hernia belt. (Dr. Peterson Aff., Dkt 3-5, p. 32.) In October 2011, Plaintiff reported that he could no longer exercise. At that time, the hernia was "easily reducible when he was lying down, " but "not as easily reducible when standing." He also had a "bit of a bulge." ( Id. at p. 33.) Dr. Peterson "noted Petitioner's hernia to likely require repair, but that it was not emergent or medically necessary and thus surgery would be considered to be an elective procedure." ( Id. )

Plaintiff filed this federal civil rights action on February 1, 2013, alleging that Defendants' failure to remedy his hernia condition with surgery amounted to a violation of the Eighth Amendment. Particularly, he alleged that Kim Miller failed to recommend surgery, Dr. Petersen failed to authorize surgery, and Linda Gehrke and Connie Smock wrongly concurred in those decisions.

Before beginning this action, Plaintiff had instituted a state court action on the same subject matter in state court. The history of the state court action is relevant to Defendants' current defenses that Plaintiff already has adjudicated his claims to a conclusion, and that he is not entitled to do so again in a different forum, because he is unhappy with the outcome of that case.

Particularly, on May 18, 2012, in Fourth Judicial District Court Case No. CV-HC-2012-07412, Albert Moore v. Rory York, et al., Plaintiff filed a state petition for writ of habeas corpus against the same parties and over the same subject matter as in this action. The State filed a motion to dismiss in that action, relying on Defendant Dr. Philip Peterson's affidavit, including the following:

It should be noted that inguinal hernias such as the one that Petitioner suffers from are very common, and that while repair of this type of hernia is one of the most frequently performed surgical operations, treatment and observation in minimally symptomatic cases is acceptable and has equal outcomes as compared to surgical treatment as far as pain and suffering due to the low risk of incarceration (where adhesions develop between the wall of the hernial sac and the all of the intestine), whereas surgery carries significant risk of post herniorraphy pain syndrome (chronic groin pain lasting greater than three months after surgery.)
At this time, surgical repair of Petitioner's hernia is not medically necessary and his condition has and continues to be monitored. It is my opinion that medical personnel have not acted in any way with deliberate indifference with regard to Petitioner's hernia, and that Petitioner has received appropriate medical treatment.

(Peterson Aff., Dkt. 3-5, p. 34.)

The motion to dismiss was granted, with the state district court concluding that Plaintiff had failed to show deliberate indifference, that Plaintiff had provided no medical evidence to support his contention that the hernia surgery was medically necessary, and that the claim amounted to a mere disagreement between Plaintiff and his medical providers. (Dkt. 3-7, pp. 19-25.) Judgment for the State was entered on November 5, 2012, prior to the filing of the federal Complaint in this matter on February 1, 2013. Plaintiff's hernia was eventually surgically repaired while still in IDOC custody on July 26, 2013. Plaintiff was later released from custody, and gave this Court written notice of his release on November 26, 2013. (Dkt. 21.)

Plaintiff filed an appeal of the state district court ruling, but his request to proceed in forma pauperis was denied, because the state district court deemed the action frivolous. As a result, the Idaho Supreme Court ...


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