United States District Court, D. Idaho
MEMORANDUM AND ORDER RE: MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT
WILLIAM B. SHUBB, District Judge.
Plaintiff, a state prisoner, brought this civil rights action under 42 U.S.C. § 1983 against defendants Corrections Corporation of America ("CCA") and Dr. Agler, alleging Eighth Amendment violations. Presently before the court are defendants' motions to strike and for summary judgment.
I. Factual and Procedural Background
Plaintiff is an inmate at Idaho Correctional Center ("ICC") in Kuna, Idaho. (Compl. ¶ 1.) Defendant CCA is a for-profit corporation, (Id. ¶ 2), which was under contract to provide medical care to ICC inmates until July 2014, (Agler Decl. ¶ 2). Defendant Dr. Agler treated plaintiff while acting as ICC's medical director and lead physician during the period relevant to this action. (Id.)
On August 31, 2011, plaintiff was attacked in his jail cell, and in his defense, he struck the attacker with his fists. (Wahl Decl. ¶ 4 (Docket No. 20).) The next day, plaintiff had an X-ray of his hands to diagnose problems resulting from the fight. (Agler Decl. ¶ 9 (Docket No. 14).) On September 2, 2011, Dr. Agler saw plaintiff and noted plaintiff had pain, difficulty flexing, and "trauma, possible tendon issue vs. strain" in his right third finger. (Agler Decl. Ex. A at 47 (Docket No. 14-4).) According to Dr. Agler, the September 1 X-ray showed no fractures in plaintiff's right hand. (Agler Decl. ¶ 12.) He prescribed plaintiff a high dose of ibuprofen and ordered that plaintiff's right finger be placed in a splint for six weeks. (Agler Decl. ¶ 10, Ex. A at 47.) Dr. Agler also ordered a follow-up X-ray in two weeks to ensure there were not fractures present. (Agler Decl. ¶ 10, Ex. A at 47.)
The follow-up X-ray occurred approximately one month later on September 30, 2011. (Agler Decl. Ex. A. at 17.) The accompanying report noted that shrapnel was embedded in both of plaintiff's hands, and stated, "There is fairly severe degenerative disease involving the third MP joint." (Id.) At the bottom of the report is a note saying "10/7/11, Healed fx" stamped David Agler, M.D. (Id.) Dr. Agler states that based on the two sets of X-rays, and the absence of any fractures, he decided no further treatment was necessary. (Agler Decl. ¶ 12.)
Plaintiff, however, continued to experience severe pain in his right hand, especially in his middle finger. (Wahl Decl. ¶ 6.) By October 20, 2011, plaintiff's splint had not yet been removed. (Wahl Decl. ¶ 10.) He submitted a concern form to Dr. Agler complaining of swelling and pain in his right hand but received no response. (Id.) Plaintiff removed the splint on his own. (Id.)
Although Dr. Agler saw plaintiff on September 2, 2011, (see Agler Decl. Ex. A at 47), Dr. Agler did not order a visit to an outside orthopedist until January 26, 2012, (Agler Decl. ¶ 16). At the January 26, 2012 appointment, plaintiff's hand was still in extreme pain. (Wahl Decl. ¶ 12.) Dr. Agler noted that plaintiff was unable to flex his third finger, and there was "minimal pain unless he forces the flexing." (Agler Ex. A at 46.) Plaintiff clarifies that he told the doctor "that the moving of the finger did not produce any additional pain unless it was flexed beyond a certain point." (Wahl Decl. ¶ 12.) Based on plaintiff's limited range of motion in his right hand, Dr. Agler requested that plaintiff see an orthopedic surgeon for further treatment. (Agler Decl. ¶ 16, Ex. A at 32 (noting "ortho consult").)
Plaintiff did not see outside orthopedist Dr. Watkins until nearly three months later on April 16, 2012. On plaintiff's first visit, Dr. Watkins noted that plaintiff suffered from loss of motion. (Watkins Dep. at 12:13-15 (Docket No. 26-2).) Plaintiff also had fairly significant arthritis in his middle finger that was "long term in nature." (Id. at 16:16-19.) Dr. Watkins recommended that plaintiff do stretching exercises in an effort to get his motion back and decrease scar formation before contemplating surgery. (Id. at 14:14-17.) Plaintiff made several more visits to Dr. Watkins, at which the doctor continued to recommend exercise. At plaintiff's third appointment with Dr. Watkins on June 22, 2012, Dr. Watkin's nevertheless recommended surgery to increase plaintiff's range of motion. (Agler Decl. ¶ 25, Ex. A at 76-77.)
Plaintiff underwent surgery on August 14, 2012. (Agler Decl. ¶ 26.) In the course of surgery, Dr. Watkins discovered a hole in plaintiff's tendon. (Watkins Dep. at 20:20-21.) Dr. Watkins states that "[a]t surgery, plaintiff had a fracture fragment at the base of the middle phalanx that I really didn't appreciate on his X-rays, even when I went back and looked at them." (Id. at 19:12-15.) Dr. Watkins removed a small piece of bone to free up the tendon as much as he could. (Id. at 20:20-23.) However, because of the tendon injury, Dr. Watkins had to splint plaintiff's finger. (Id. at 21:9-10.)
Plaintiff's post-surgical care after the first operation was initially regular. Plaintiff saw Dr. Agler for post-surgical follow-up appointments on August 22, September 5, and September 24, 2012. (Id. ¶¶ 26-32.) At the September 24 appointment, Dr. Watkins noted that despite the first surgery, plaintiff still had adhesions of the extensor tendon, and he hoped to do an additional surgery when the time comes, "if indicated." (Tribble Decl. Ex. F (Docket No. 21-6).) Dr. Watkins further noted he would see plaintiff in four weeks. (Id.)
A follow-up appointment did not occur within the prescribed four-week window. On November 15, 2012, plaintiff had still not seen Dr. Watkins again, and he filed a grievance stating that Dr. Watkins had discussed a second surgery with him, and his hand was still in a lot of pain, and "I am not asking for a date. I am just asking if [the second surgery] is going to happen." (Wahl Decl. Ex. A at 270.) As of December 18, 2012, Dr. Agler noted that although the notes from the September 24, 2014 visit with Dr. Watkins were still "unavailable, " a follow-up with Dr. Watkins was scheduled for February 18, 2013. (Agler Decl. ¶ 35, Ex. A at 38.) On December 26, 2012, plaintiff filed another grievance inquiring about the second surgery, to which a staff member replied, "Attempting to diagnose and treat you via concern form is inappropriate. You are scheduled to follow up with ortho relatively soon. If you would like to be seen, please put in an HSR." (Id.)
When plaintiff finally returned to Dr. Watkins on February 18, 2013, plaintiff still suffered from poor range of motion, so Dr. Watkins recommended a second surgery. (Agler Decl. Ex. A at 201.) Although in Dr. Watkin's view plaintiff's finger would not return to normal, plaintiff had a chance to recover at least half of his normal motion. (Id.) Upon seeing those recommendations the next day, Dr. Agler ordered surgery. (Agler Decl. ¶¶ 39-40.) On February 26, 2013, Dr. Watkins performed an extensor tenolysis of plaintiff's right long finger. (Id.) As a result of this surgery, Dr. Watkins discovered that plaintiff had osteoarthritis in one of his joints, which further complicated treatment, and he believed could have required joint replacement in the future. (Watkin's Dep. at 20:1-5, 13-21.)
What followed is not entirely clear from the evidence submitted by the parties. Plaintiff states after his second surgery, he was supposed to return to Dr. Watkins' office in one month to get his sutures removed. (Wahl Decl. ¶ 14.) According to plaintiff's health services progress notes, as well as Dr. Watkin's notes, plaintiff visited Dr. Watkins for a follow-up appointment on March 4, 2013. (Agler Decl. Ex. A at 157, 203.) The progress notes state plaintiff returned from that visit with right hand sutures "still intact." (Agler Decl. ¶ 41, Ex. A at 157.) On plaintiff's March 18, 2013 visit to Dr. Watkins, Dr. Watkins noted, "I will see [plaintiff] back next week to remove his sutures." (Id. at 203.) Dr. Watkins felt at that point, it was too early to remove plaintiff's sutures because there was still a risk plaintiff could open his incision. (Watkins Dep. at 27:25-26:9.) Dr. Agler supposedly ordered a follow-up appointment with Dr. Watkins for April 3, 2013, (Agler Decl. ¶ 46), but that appointment never occurred. Instead, Dr. Watkins states that his office "got a phone call on ...