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McDermott v. Valley

United States District Court, D. Idaho

March 26, 2014



B. LYNN WINMILL, Chief District Judge.

Pending before the Court are several motions ripe for adjudication (Dkt. 29, 33, 34, 37), including Defendants' Motion for Summary Judgment. (Dkt. 35.) Having reviewed the parties' briefing, as well as the record in this matter, the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the following Order granting Defendants' Motion for Summary Judgment and dismissing this case with prejudice.


In his Complaint, filed on July 22, 2011, Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs by failing to provide him with an effective medication for his constipation condition in 2010 and 2011, when he was housed at the Idaho Maximum Security Institution (IMSI) and the Idaho Correctional Institution in Orofino (ICI-O). (Complaint, Dkt. 3; Plaintiff's SOF, pp. 1-2.) Defendants assert entitlement to summary judgment based on the entire record before the Court.

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 reasonable 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 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.'" 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 is a chronology of factual allegations that are undisputed and material to the resolution of the issues in this case. The Court has included the content in the medical and prison records provided by the parties. Where Plaintiff contests what is contained in the medical records, the Court has used his version of events for summary judgment purposes, except where Plaintiff's version of the facts is implausible, clearly refuted by other evidence in the record, or self-contradictory. This section is not intended to be a perfect reflection of Plaintiff's course of treatment, given the extensive records and briefing submitted in this case, but it is sufficient to cover the facts material to determine whether Plaintiff had a serious medical need and whether Defendants were deliberately indifferent to that need.

Dec. 5, 2001 As background information, Plaintiff has provided medical records showing that he suffered a traumatic brain injury (TBI) from a gunshot wound. A PET scan of January 27, 2005, led Dr. Monte S. Buschbaum to conclude that Plaintiff had suffered a major brain injury. (Dkt. 39-5, p. 25.) Plaintiff admits that sometimes his "timeline is off, and that his confusion of the time is due to his traumatic brain injury (which area that was affected was the sensory and memory lobes). (Dkt. 23, p. 7.)

about March 2010 Defendant Physician's Assistant (PA) Matthew Valley prescribed Bentyl for Plaintiff's constipation problems at IMSI. ( See Dkt. 39-3.)

March 21, 2010 Plaintiff wrote an Offender Concern Form (OCF) and said that the blue pills gave him nausea and a coppery aftertaste, that he thought he was allergic to it, and that he would not take it any more. (Dkt. 39-3, p. 3.)

March 24, 2010 Plaintiff submitted an OCF, stating:

So, since your little blue pills made me debilitatively nauseous, would you care to try something else? Ooh, I know; do you prescribe benefiber? Something fibery that isn't Fiberlax? Or, if not how about some Purina puppy chow? Or cat mix? I heard that stuff works - I used to eat it on the streets. The dog food would probably be cheaper for the company you work for. You should suggest it. (Dkt. 39-3, p. 2.)
In response, PA Valley stopped the Bentyl and advised Plaintiff to submit a Health Services Request Form (HSR) if he wanted to be seen for constipation again. (Dkt. 39-3, pp. 2-3.)

April 5, 2010 Plaintiff sent in the following OCF, complaining about Defendant Correctional Medical Specialist (CMS) Bruce Cooper:

Let me see if I can describe my feelings about Mr. Cooper in a way that you'll start paying attention when I say I dislike him: I would rather have a cheese grater rubbed across my scalp; or have my fingernails ripped off with rusted tweezers; or my teeth pulled without novocaine's numbing magic; than to speak with Mr. Cooper over anything concerning my medical problems. I thought I was clear about that when I called him a jack-ass, a dick and some other colorful words. His attitude is something of a sort indescribable by few words, and it is apparent upon speaking to him, that he doesn't understand English. Therefore, anytime you send him to speak with me, I will respectfully decline. (Unless he persists, in which case I won't be so respectful.) Thank you. (Dkt. 39-5, p. 32.)
The response from Dr. Dawson was: "You have the right to refuse any medical care. The policy is for medical staff, like CMS Cooper, to triage any HSR's and respond to emergencies, so he may come to offer you assistance as part of his job." ( Id. )

April 30, 2010 Plaintiff submitted an OCF to PA Valley: "Where did you get your medical license?" Plaintiff said he was going to check everything Valley told him. He disagreed with Valley's statement that one bowel movement a week could be considered normal. (Dkt. 39-3, p. 3.)

May 3, 2010 Plaintiff submitted an OCF to PA Valley and said he had suffered from the constipation problem for several years and thought he could have something more serious. He wanted to write to CMS headquarters to ask why Metamucil was not on the formulary list any more. (Dkt. 39-3, p. 2.)

August 23, 2010 Plaintiff had an appointment with PA Valley, who evaluated Plaintiff for bowel movement complaints. (York Affidavit, Dkt. 21, ¶ 5; Valley Aff. ¶ 6.) Plaintiff reported that he had a bowel movement every one to two weeks. He told Valley the following medications had not worked for his bowel issues: Fibernorm (a bulk forming laxative), Colace (a stool softener), Bentyl (an anticholinergic used to treat irritable bowel syndrome), and Dulcolax (a stimulant laxative), and that Metamucil (psyllium, a bulk forming laxative) was the only thing that worked for him. PA Valley ordered Lactulose (an osmotic laxative) for Plaintiff to try, but Plaintiff was concerned about this product, pointing out that when laxatives are used continuously they would cause the bowels to become lazy or dependent on laxatives. ( Id. ) Valley interpreted this information from Plaintiff as a refusal and instructed Plaintiff that he believed Lactulose would help him and to submit an HSR if he changed his mind. ( Id. )

Sept. 13. 2010 Plaintiff submitted a Grievance (No. IM XXXXXXXXX), saying that he would try Lactulose, but that it was meant for only temporary use, and complaining that IMSI staff would not provide him with Metamucil. (Dkt.39-3, pp. 6-7.) In the appeal, he requested only Metamucil, saying he had tried everything else. ( Id., p. 13.) At this time, Plaintiff was on a medical diet in partial connection to ongoing constipation issues.

October 14, 2010 Plaintiff was transferred to ICI-O. (York Aff., Dkt. 21, p. 4.) October 25, 2010 Plaintiff was evaluated by Nurse Practitioner (NP) Rory York at ICI-O for complaints of chronic constipation. York prescribed "calcium polycarb tablets - Fibernorm" and Docusate SOD Caps - Colace.

Plaintiff submitted an OCF disputing the order, stating that he had told York that fiber and Colace make his bowel problems worse, because of prior experience. He accused York of ignoring his statement not to order fiber and Colace and stated, "I'm not going to pay for something that causes me harm. If I wanted to do that, I would have had you give me arsenic." At least with that, I'd be BM'ing regularly." (Dkt. 21-11, p. 17.) York responded that he believed Fiber-Lax and Colace were the best treatments for his condition. ( Id.; York Aff., Dkt. 21 ¶ 7.)

October 25, 2010 Plaintiff submitted an OCF addressed to "Roary":

"Everyone has a boss. Who's yours? Who oversees your decisions? Also, whose decision was it to nix the powder fiber products? Yours? CMS heads? I need specific names and titles, of all persons involved in the decision of your boss. Thank you." (Dkt. 21-11, p. 17.)
The response was: "This was discussed at the Idaho Regional Provider Meeting and it was determined that the powdered fiber products are not medically necessary and constipation will be treated with the capsules." ( Id. )

October 25, 2010 Plaintiff also wrote a second OCF, complaining that Fiber-Lax is a calcium enriched product that does not contain any fiber. NP York wrote back: "Page 279 of the most recent Merck manual states calcium polycarbophil is the only treatment for chronic constipation." (Dkt. 21-11, p. 18.)

Dec. 6, 2010 Plaintiff asked for a double mattress; NP York saw no medical need for the request. (Dkt. 21-2, p. 10.) Plaintiff provided information about his TBI to RN Diane Kaufmann upon her request.

Dec. 16, 2010 Dr. Clayton Bunt saw Plaintiff for his constipation issue. Plaintiff had a soft abdomen, positive bowel sounds, and no masses or abnormally palpable stool. Plaintiff said Fiber-Lax and Colace worked the opposite for him, but that he would try Lactulose (which is the product he did not want from PA Valley at IMSI). Dr. Bunt ordered Lactulose and discontinued the other two products. (York Aff., Dkt. 21 ¶ 9; Bunt Aff., Dkt. 35-9, p. 2.)

Dec. 16, 2010 Plaintiff wrote an OCF to Diane Kaufmann:

"Thank you for getting me in there. You asked about my TBI and I was unable to explain more thoroughly. I didn't receive the proper care from rehab because they too had your thought: he seems to function normally enough. Able to walk and think/act on his own.' Problem is, I created a new type of TBI. They didn't recognize it, and therefore didn't know how to deal with it. Instead of trying, they shunned me. It has taken longer for me to heal, because I had to do it on my own. The only way you'd know I was not normal in function is to be around me on a constant day to day basis. Well, that's basically the rest of it. Thanks for your concern and diligence. Most appreciated." (Dkt. 21-11, p. 22.)

Dec. 22, 2010 Plaintiff had a first dosage of Lactulose. (Dkt. 21-3, p. 21.)

Dec. 24, 2010 Two days later, Plaintiff submitted an OCF stating he did not want to use Lactulose any longer because it caused him bad gas and caused "the ice cream shits"; he needed a bulk-forming laxative. (Dkt. 21-12, p. 1.) The response was that the formulary had Fiber-Lax caps. (Dkt. 21-12, p. 1.) Plaintiff took Lactulose several times after he complained about it and then quit altogether. (Dkt. 23, p. 8.)

Dec. 28, 2010 Plaintiff submitted another OCF stating Fiber-Lax did not work for him. The response was that he was scheduled to see the doctor at his next visit. (Dkt. 21-12, p. 2.)

Dec. 30, 2010 Plaintiff submitted an OCF, stating:

I know you're trying to kill me. That liquid stuff made my guts 10x worse. I haven't shit for 2 ½ weeks, and the pressure is going to my head causing more pressure, and constant nose bleeds. My stomach feels bruised. I've done approx. 4, 000 crunches in the past 2 weeks with no [illegible], I work out every day, drink plenty of water. You're just trying to kill me by not giving me what I need. I'm always fatigued and constantly have a feeling to my [illegible] that is indescribable in any one word." This complaint of not having had a bowel movement in two and a half weeks is in contrast to his statement in his December 24, 2010 OCF that he had "the ice cream shits" six days earlier. (Dkt. 21-11, p. 10; compare Dkt. 21-12, p. 1.) NP York discontinued the Lactulose and ordered a consultation with Dr. Phillip Peterson regarding Metamucil versus Fiber-Lax capsules. (York Aff., Dkt. 21, ¶ 9; Dkt. 35-10, p. 4.)[1]

January 6, 2011 Plaintiff submitted a grievance (No. IO 11000007), stating that Rory York had referred him to Dr. Bunt to address constipation problems, and that Dr. Bunt prescribed Lactulose that made things worse. Plaintiff stated he has not had a bowel movement in 19 days.[2] He sought Metamucil or a product similar to it that is not Fiberlax; he wanted a fiber product, not a calcium-enriched product (Fiberlax contains calcium). (Dkt. 39-4, pp. 1, 5.)

Defendant Kim Miller, a licensed nursing assistant charged with responding to medical grievances, reviewed the chart and responded. (Kim Miller Aff., Dkt. 35-5, p. 3.) The 1/7/11 response was that he had been seen and/or his file reviewed by a nurse practitioner, a doctor, and the regional medical director, who believed he was given proper treatment for constipation. He was ordered to ...

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