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Tortolano v. Poulsen

United States District Court, D. Idaho

September 3, 2014



EDWARD J. LODGE, District Judge.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction, is proceeding pro se and in forma pauperis in this civil rights action. The Court previously reviewed Plaintiff's Complaint under 28 U.S.C. §§ 1915 and 1915A and allowed Plaintiff to proceed on his Eighth Amendment claim. (Dkt. 9.) In its Initial Review Order, the Court ordered Defendant to file a response to Plaintiff's allegations regarding his request for a preliminary injunction, "providing the Court with information about Plaintiff's current condition and medical care and providing a copy of Plaintiff's medical records relevant to the issues asserted in the request for preliminary injunction." ( Id ., p. 5.)

Now that the matter is fully briefed, the Court will rule on Plaintiff's motion for a preliminary injunction, plus the other pending motions. The Court finds that the decisional process would not be significantly aided by oral argument, and thus the Court will decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d).


Plaintiff asserts that he suffered a back injury in January 2012 and had been suffering from a shoulder injury. In October 2012 and March 2013, Plaintiff had surgeries on his right shoulder. Plaintiffs alleges that he saw Defendant Poulsen for treatment several times between August 2012 and the time he filed his lawsuit, October 8, 2013. Plaintiff alleges that Defendant Poulsen, NP, has violated his constitutional rights by refusing to prescribe further pain medication, refusing to order a bottom bunk, not providing alternative treatment for his back pain, and not referring him out to a back specialist. (Compl. (Dkt. 3.))


Plaintiff asks that the Court issue a preliminary injunction ordering that: (1) Corizon provide him effective pain medication; (2) he undergo an M.R.I., and (3) have a consult with a back specialist. (Dkt. 7, p. 4.)

A. Facts Pertaining to Plaintiff's Injunctive Relief Request

Plaintiff complains that he has had back pain since January 2012. An x-ray report from January 16, 2012 indicates "degenerative disc space narrowing L5-S1." The bulk of Plaintiff's allegations regarding deficient medical treatment stem from 2013 when he began to complain of increased back pain. ( See Pla.'s Aff., ¶¶ 16-112 (Dkt. 3-1.)) The Court will focus on this time period. The recitation below is not a complete record of Plaintiff's medical care during this time frame and does not recount every medical appointment but gives a representation of the treatment Plaintiff received.[1]

Plaintiff has a history of right shoulder pain and a diagnosis of right a/c separation. After being prescribed, and trying out, various pain medications to help his right shoulder pain, Plaintiff was ultimately prescribed Ultram (also known as Tramadol) in January 2012 by Janet Mitchell, P.A.C. Plaintiff's first surgery on his right shoulder took place on October 30, 2012. He underwent a second right shoulder surgery on March 19, 2013.

Plaintiff had regular follow-ups, include with Matt Valley, PA-C, and Dr. Dawson, following his surgery. He continued to take Ultram for pain. Defendant Poulsen examined Plaintiff on June 13, 2013. At this appointment, Plaintiff complained of low back pain but stated he could perform all activities of daily living and that he walked and exercised. Defendant's examination of Plaintiff showed no acute distress.

On July 12, 2013, Janet Mitchell, PA-C, noted full range of motion for Plaintiff's right shoulder. She ordered his Ultram to be decreased. On August 1, 2013, Dr. Edward Savala saw Plaintiff for pain management. Plaintiff stated he wanted Ultram for back pain or to undergo back surgery. Dr. Savala noted that Plaintiff had no difficulty ambulating and that he moved his body in a normal manner. Dr. Savala prescribed Mobic for pain.

Defendant Poulsen saw Plaintiff on August 27, 2013. Plaintiff requested continuation of Ultram and reported that the back pain had become chronic and was exacerbated by bending and twisting. Defendant Poulsen noted a normal gait and that lower extremity muscle strength and reflexes were normal. Defendant planned to taper Ultram slowly. Plaintiff would continue to receive Mobic, as well as Tylenol when needed.

On September 3, 2013, Plaintiff saw Scott Schaffer, NP, and requested a pass for a lower bunk, complaining of back pain that radiated. Ms. Schaffer noted no acute distress and that Plaintiff got on and off the examination table several times without any difficulty. Mr. Schaffer offered Pamelor for sciatica which Plaintiff declined. Plaintiff was seen by Dr. Savala eight days later and complained that the pain was unbearable and that the Mobic ...

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