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Wolfe v. Idaho Department of Correction

United States District Court, D. Idaho

July 21, 2015



EDWARD J. LODGE, District Judge.

Pending before the Court in this prisoner civil rights case is Defendant Corizon's Second Motion for Summary Judgment. (Dkt. 28).[1] Also pending is Plaintiff's Motion to Strike. (Dkt. 31). The Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Having carefully reviewed the record, and otherwise being fully informed, the Court enters the following Order.


Plaintiff William Wolfe is a prisoner in the custody of the Idaho Department of Corrections, currently incarcerated at the Idaho State Correctional Institute ("ISCI") in Kuna, Idaho. Defendant Corizon Medical Services ("Corizon") is a private entity that contracts with the Idaho Department of Corrections to provide medical care to inmates in the State of Idaho. (Dkt. 28-1 at p. 4, & IRO, Dkt. 7, at p. 3). Wolfe alleges a violation of 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution, arguing that prison officials improperly delayed medical treatment after he was diagnosed with prostate cancer in 2012. Among other things, Wolfe alleges that the cancer would not have spread to his lymph nodes had he undergone surgery to remove his prostate in a more timely fashion, and also that Corizon improperly delayed radiation therapy after the spread of the cancer was discovered. The critical facts are as follows.

On March 23, 2012, Wolfe was seen by a physician's assistant at the Idaho State Correctional Institution for a routine physical. (Dkt. 17-7 at 18). This physical included a digital examination of the prostate and a blood draw to check for elevated PSA levels. (Affidavit of Catherine Whinnery, MD. Dkt. 17-6, ¶ 4). The Physical examination of the prostate revealed no abnormalities, but on April 4, 2012, the results of the blood draw showed elevated PSA levels of 6.26 (levels of less than 4 are considered normal). (Dkt. 17-8 at 5). The ISCI physician's assistant discussed the elevated PSA level with Wolfe on April 18, 2012, at which time it was noted that he would be sent to a urology specialist for further evaluation. (Dkt. 17-9 at 4 & 24).

Wolfe was seen by a urologist, Dr. John Greer, on June 27, 2012. In an office note from that visit, Dr. Greer indicated that Wolfe should "proceed with prostate ultrasound with possible biopsy." (Dkt. 17-5 at 13). On June 28, 2012, Dr. Catherine Whinnery, an ISCI family practice physician who was part of Wolfe's medical team, requested approval of the ultrasound and biopsy through the Corizon utilization review process. Corizon approved these procedures, respectively, on July 8 and July 23, 2012. (Whinnery Aff. ¶ 9).

Dr. Greer performed the ultrasound and biopsy on August 22, 2012. On August 27, 2012, the pathology report was returned, revealing the presence of cancer. (Dkt. 17-5 at p. 17-18). The pathologist assigned Wolfe a Gleason Score of 8, indicating that his cancer was aggressive in nature. ( Id. ). On September, 10, 2012 Wolfe underwent a CT scan of the abdomen and pelvis and on September 26, 2012 he underwent a whole body-image bone scan. The purpose of these scans was to determine whether his cancer had spread beyond the prostate. (Dkts. 17-5 at 19 & 22-23). Both these scans revealed no evidence of metastatic disease. ( Id. ).

On October 15, 2012, Wolfe met again with Dr. Greer to discuss treatment options. This discussion addressed the risks and benefits of surgery versus radiation therapy as possible avenues of treatment of his cancer. According to Dr. Greer's office note, at that time, Wolfe had no interest in radiation therapy and instead opted for surgical removal of the prostate. (Dkt. 17-5 at 24-25). This surgery was ultimately performed on November 19, 2012. On November 21, 2012, the surgical pathology report revealed that, contrary to the indications provided by the pelvic CT scan and bone scan, Wolfe's prostate cancer had in fact spread to two of his pelvic lymph nodes. (Dkt. 17-5 at 31-33). Wolfe was seen in follow up by Dr. Greer on November 27, 2012, at which time he was advised that he would need radiation therapy to keep the cancer from recurring. (Dkt. 17-5 at 39).

Wolfe was seen by a radiologist, Dr. Timothy Sawyer, on December 19, 2012. ( Id. at 40-41). The consultation report for this visit indicates that Dr. Sawyer informed Wolfe of the high risk nature of his disease. Dr. Sawyer also discussed the role of post-operative irradiation, and explained that although some evidence suggested it improved both local control and the chances of long-term survival, there was no definitive proof of its efficacy. ( Id.). Dr. Sawyer also noted that Wolfe was having continued problems with incontinence, and recommended that radiation therapy be delayed until this resolved. Given this, and also given Wolfe's high risk profile, Dr. Sawyer also recommended that he undergo androgen blockade therapy, a treatment designed to reduce the production of androgen, which stimulates the growth of prostate cells. Dr. Sawyer also explained that as long as Wolfe was on androgen blockade therapy, it would be reasonable to hold off on radiation therapy until his urinary function recovered. ( Id. ). Follow up visits with Dr. Greer, Dr. Whinnery, and Dr. Sawyer over the next several months also indicate that Mr. Wolfe was still suffering from incontinence in January and March of 2013. (Dkt. 17-5 at 43 & 46; Whinnery Aff. at ¶ 29). Mr. Wolfe received his first androgen treatment shot on January 8, 2013, and another one on April 11, 2013. (Whinnery Aff. ¶ 33). It was not until May 8, 2013 that providers first noted that his incontinence had improved. (Whinnery Aff. at ¶ 35; Dkt. 17-5 at 57-59). In the meantime, the androgen therapy worked as desired, helping to bring Wolfe's PSA levels down to normal levels. (Dkt. 17-5 at 56-57).

On March 21, 2013, While Wolfe's was receiving androgen therapy, Dr. Whinnery submitted the outside providers' request for radiation therapy to the Corizon utilization review board. (Whinnery Aff. ¶ 31; Dkt. 17-16 at 22). In a report dated March 28, 2013, Dr. Richard Kosierowski, an oncologist employed by Corizon, denied the request for radiation therapy, stating that it was not the preferred method of therapy in a patient with Wolfe's presentation and that there was "no evidence that [it would] add anything to the patient's situation outside of complications of further incontinence/erectile dysfunction." (Dkt. 17-16 at 24). Dr. Kosierowski further stated that he felt that androgen blockade therapy or observation alone were the preferred methods of treatment for someone in Wolfe's situation. ( Id. ).

Dr. Whinnery saw Mr. Wolfe on April 8, 2013 and informed him that Corizon had denied the request for radiation therapy. (Whinnery Aff. ¶ 32). During this visit, Wolfe expressed his concern that this decision was based solely on financial considerations, and Dr. Whinnery advised him that she would discuss the issue with his local doctors to determine which treatment they felt would provide him with the best outcome. ( Id. )

On April 16, 2013 Dr. Whinnery submitted another consultation request to Corizon, which explained that Wolfe's radiologists were of the opinion that radiation therapy offered best chance for a possible cure. (Dkt. 17-16 at 29). On May 8, 2013, Wolfe was seen by another radiologist, Dr. Joseph Brooks, who reviewed Corizon's denial of the request for radiation therapy and disagreed with Dr. Kosierowski's conclusion that radiation therapy would not be efficacious. Specifically, Dr. Brooks stated that androgen deprivation therapy alone was "not a curative regimen, " and that "radiation therapy in conjunction with hormonal therapy offers the only chance of a cure." ( Id. ). The office note for this visit also indicates that Mr. Wolfe's incontinence had improved at this time. In response to this information, Corizon approved the request for radiation therapy on May 22, 2013. Mr. Wolfe began radiation treatment on May 29, 2013. As of May 14, 2014, his cancer was in remission. (Whinnery Aff. ¶¶ 37 & 39).

Plaintiff filed suit on May 10, 2013, alleging claims against Corizon, the Idaho Department of Corrections, and several individual defendants. On August 19, 2013, the Court filed its Initial Review Order, holding that Plaintiff had not stated a colorable claim against the Idaho Department of Corrections or any of the individual defendants, but permitting him to proceed on claims for deliberate indifference and medical negligence against Corizon. This motion followed.


Summary judgment is appropriate where a party can show that, as to a particular 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 rule "is to isolate and dispose of factually unsupported claims or defenses." 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 ...

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