United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge
before the Court are Plaintiff's Motion for Summary
Judgment (Dkt. 21), Defendant's Cross-Motion for Summary
Judgment (Dkt. 28), Plaintiff's Motion for Default
Judgment (Dkt. 30), Plaintiff's Cross-Motion for Summary
Judgment (Dkt. 31), Plaintiff's Motion for Requesting
Appointment of Counsel (Dkt. 35), and Plaintiff's Motion
to Supplement (Dkt. 41).
fully reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs and
record. Accordingly, the Court will forego oral argument and
decide this matter on the record. For the reasons stated
below, the Court will grant Defendants' Cross-Motion for
Summary Judgment, deny all other pending motions, and dismiss
this case in its entirety.
filed this action on February 12, 2016, pursuant to 42 U.S.C.
§ 1983, alleging that he has been denied adequate
medical care for his gastrointestinal problems and his
umbilical hernia in violation of the Eighth Amendment to the
United States Constitution. Compl., Dkt. 3. Plaintiff
originally named as Defendants three prison medical providers
(Defendants Gelok, Poulson, and Agler) and the Warden of ISCI
(Defendant Yordy). Id. at 6. Plaintiff then
supplemented his complaint to name, as additional Defendants,
the private company providing medical care to Idaho inmates
under contract with the IDOC (Corizon, LLC), and
Corizon's Regional Medical Director for the State of
Idaho (Defendant Young). Dkt. 9.
April 7, 2016, this Court filed its Initial Review Order.
Dkt. 10. The Court determined that Plaintiff's Complaint,
liberally construed, stated colorable Eighth Amendment claims
against Defendants Gelok, Poulson, Agler, Young, and Corizon.
However, the Initial Review Order did not authorize Plaintiff
to proceed against Defendant Yordy.
November 28, 2016, Defendants' Motion for Partial Summary
Judgment (Dkt. 17) was granted in part. Dkt. 26. All of
Plaintiff's claims-other than (1) Plaintiff's claim
of inadequate medical treatment for gastrointestinal problems
against Dr. Young, for the treatment Plaintiff received
through October 20, 2015, and (2) Plaintiff's claim of
inadequate medical treatment for gastrointestinal problems
against Corizon, for the treatment Plaintiff received through
December 22, 2015-were dismissed without prejudice.
Id. All Defendants except Defendants Young and
Corizon were dismissed from the case. Id.
Accordingly, Plaintiff's only pending Eighth Amendment
claims are against Defendants Dr. Young and Corizon, LLC.
section includes facts that are undisputed and material to
the resolution of the issues in this case. Where material
facts are in dispute, the Court has included Plaintiff's
version of facts, insofar as that version is not contradicted
by clear documentary evidence in the record. See Scott v.
Harris, 550 U.S. 372, 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary
Plaintiff's Injury and Medical Care
has been diagnosed with a redundant colon, which is an
unusually long colon. Dkt. 28-3 ¶ 4. There are two basic
ways to treat this condition-surgically and medically.
Surgical treatment entails removing a section of the colon.
Medical treatment, on the other hand, include remedies such
as laxatives, special diet, pain medications, wheelchairs,
and periodic monitoring for acute complications. The acute
complications that will necessitate colon resection surgery
are 1) large bowel obstructions, or 2) volvulus (a section of
the colon wrapping around itself). Id. ¶ 51.
June 26, 2015 - September 9, 2015
June 26 to July 10, 2015, Plaintiff was treated at St.
Luke's Regional Medical Center (“St.
Luke's”) for complaints of constipation and a
possible small bowel obstruction. Dkt. 28-10 at 367. On
initial diagnosis, x-rays and a CT scan showed no evidence of
obstructions, volvulus, inflammation, mass, or stricture
(narrowing of the intestines). Id. at 378.
30, 2015, gastroenterologist Dr. Mark Lloyd performed a
colonoscopy, which showed possible partial volvulus, but no
obstruction. Id. at 374.
2, 2015, general surgeon Dr. Renee Bourquard performed a
diagnostic laparoscopy, flexible colonoscopy, lysis (removal)
of adhesions in the left upper quadrant of the abdomen, and
takedown of left lateral peritoneal reflection (referring to
an “apron” that covers the intestines that is
comprised of fat and lymph nodes). Id. at 370-73.
According to Dr. Young, these procedures decreased
Plaintiff's future chances of volvulus. Dkt. 28-3 ¶
10. After the procedures, Dr. Bourquard discussed the option
of colon resection surgery with Dr. J. Chris Kantarian, a
colorectal surgeon. Id. The two surgeons agreed that
colon resection surgery was not indicated at that time due
to the absence of volvulus or a large bowel obstruction.
Id. However, Dr. Bourquard noted that the surgery
could be indicated in the future if Plaintiff's
symptomology worsened. Id. None of the doctors in
this visit were affiliated with IDOC or Corizon.
procedures at St. Luke's kept him hospitalized there
until July 10, 2015. His medical records indicate that Dr.
Bourquard requested an outpatient follow-up in the
Gastrointestinal and Surgery clinics 1-2 weeks after
discharge from St. Luke's. Dkt. 21-3 at 2.
10, 2015, Plaintiff was discharged from St. Luke's and
returned to the prison infirmary, where he was monitored for
an additional week. Dkt. 28-9 at 338-41, 359-65. Dr. Young,
the Regional Medical Director for Corizon, checked in with
Plaintiff in the infirmary on several occasions throughout
that week. Id. Both Dr. Young and Plaintiff himself
indicated that the laparoscopic surgery incisions were
healing appropriately and his condition was improving.
Id. at 360. Due to Plaintiff's improving
condition, Dr. Young decided that sending Plaintiff back to
St. Luke's for a follow-up was not clinically indicated.
Dkt. 28-3 at ¶ 13. Instead, prison nurse practitioner
(“NP”) Christian Gelok conducted Dr.
Bourquard's requested follow-up in the infirmary on July
16, 2015. Dkt. 28-9 at 341. NP Gelok noted that Plaintiff was
stable with no complications. Id. Prison NP William
Poulson also followed up on Plaintiff's infirmary
discharge on July 29, 2015. Id. at 358 Plaintiff
deferred an examination and NP Poulson noted on the medical
record that Plaintiff was “happy with the POC (plan of
August 5, 2015, Plaintiff visited the infirmary with
complaints of minor problems with constipation and hard
stools. Id. Physician Assistant (“PA”)
Daniel Barry prescribed medication to soften his stools and
prohibit acid production in his stomach. Id.
September 9, 2015, Plaintiff visited the infirmary
complaining of not having a bowel movement for over a week.
Dkt. 28-4 at 16. NP Gelok examined x-rays of Plaintiff's
abdomen. These x-rays showed some constipation, but were
“otherwise unremarkable” in that the condition
had not worsened since Plaintiff's procedures at St.
September 10, 2015 - December 15, 2015
September 10, 2015, Plaintiff visited the infirmary
complaining of two weeks of abdominal pain, bloating, and
severe constipation. Dkt. 28-4 at 37; Dkt. 28-9 at 318- 19.
NP Poulson noted normal vital signs, and no objective signs
of distress, such as guarding or abdominal distension.
Id. Plaintiff, however, complained of suprapubic
pain upon palpation. Id. NP Poulson ordered another
x-ray of Plaintiff's abdomen, which showed a large fecal
load but no obvious features of obstruction. Dkt. 28-4 at 17.
Dr. Migliori, an infirmary doctor, consulted with Dr. Lloyd
(the gastroenterologist at St. Luke's) for specialized
recommendations. Dkt. 28-9 at 355. Dr. Lloyd recommended a
stimulant (rather than osmotic) laxative. Id. Dr.
Migliori prescribed the stimulant laxative, nausea
medication, pain medication. He also ordered Plaintiff be
sent to St. Luke's if he had not improved by the next
September 11, 2015, Plaintiff had not improved and was sent
to the emergency department at St. Luke's. Id.
at 353. There, he received a CT scan of his abdomen. The scan
showed signs of a diffusely distended colon, but no signs of
an obstruction or acute inflammation. Dkt. 28-10 at 398-99.
Without the latter signs, Plaintiff was not admitted to the
hospital. Id. at 393. However, Plaintiff was
instructed to follow up with gastroenterologist Dr. Lloyd.
Id. Upon return to the infirmary, Plaintiff was
prescribed antibiotics and a bowel cleansing solution. Dkt.
28-9 at 314.
September 12 and October 1, 2015, Plaintiff visited the
infirmary twelve times. Dkt. 28-9 at 352, 350, 349, 344; Dkt.
28-5 at 79, 75, 73, 71, 69, 62, 60; Dkt. 28-10 at 400. Either
PA Dellwo, Dr. Migliori, or Dr. Young examined Plaintiff on
each occasion by checking for objective presentations such as
unusual bowel sounds, guarding, or distension in his abdomen.
Id. None were ever found. Id. Plaintiff
invariably reported pain in the suprapubic region with
palpation. Id. The doctors also ordered x-rays and
CT scans, which constantly showed a large fecal load and
constipation. Id. at 18, 60, 344, 350, 400. To
resolve the constipation, the doctors prescribed several
laxatives, a special diet, a wheelchair, and narcotic pain
medication. Id. On September 14, 2015, Dr. Migliori
scheduled an urgent consultation for Plaintiff to see
gastroenterologist Dr. Lloyd at St. Luke's. Dkt. 28-7 at
188. However, Dr. Young chose not to refer Plaintiff to a
surgical consult at this time because he felt that
“assess[ing] the cause of [the] constipation”
would be “the more appropriate treatment plan” at
this time.” Dkt. 28-3 at ¶ 26.
October 14, 2015, a gastroenterology NP Cory Shuler (who
worked under the supervision of Dr. Lloyd) saw Plaintiff for
an off-site GI consult. Dkt. 28-7 at 190-93. NP Shuler noted
that Plaintiff “needs surgical consult as
outpatient” and is “likely gonna require
left-sided colon resection surgery.” Id. at
October 21, 2015, NP Poulson ordered a urinalysis to
determine if that was the cause of Plaintiff's suprapubic
pain. Dkt. 28-4 at 29.
October 29, 2015, Dr. Migliori requested a routine
(non-urgent) surgical consult for Plaintiff. Dkt. 28-7 at
169. That request was approved by Dr. Agler, who reviews
consultation requests when Dr. Young is unavailable.
Id. While Dr. Agler had initially scheduled
Plaintiff to see general surgeon Dr. Bourquard (who had
treated Plaintiff in July 2015), Dr. Agler later crossed out
Dr. Bourquard's name and scheduled Plaintiff to see
another general surgeon Dr. Henson. Id. The cost of
the surgical consult is the same to see either doctor, who
are both general surgeons at St. Luke's. Although it is
still unclear why this change was made, Dr. Young claims that
it was probably because Dr. Bourquard was unavailable. Dkt.
28-3 at ¶ 37.
December 2, 2015, the day before Plaintiff's surgical
consult, NP Poulson saw Plaintiff in the infirmary for a
check-up and medication refill. Dkt. 28-4 at 55. Plaintiff
self-reported that he was having soft, daily bowel movements.
Id. At this time, NP Poulson recommended Plaintiff
increase his ambulation, and accordingly discontinued the
December 3, 2015, Plaintiff appeared for his off-site
surgical consult. Dkt. 28-7 at 182. Plaintiff was seen by Dr.
Roberto Barresi, a general surgeon at St. Luke's in Dr.
Henson's practice group. Id. Dr. Barresi
reviewed Plaintiff's records and discussed
Plaintiff's history with him. Id. Plaintiff
asserts that Dr. Barresi was confused as to why Plaintiff had
been sent to him. Dkt. 21-1 at 17. Contrary to
Plaintiff's assertions, however, Dr. Barresi's notes
state that “[Plaintiff ] was under the
impression that he was being referred back to Drs. Bourquard
and Kantarian, and was somewhat surprised to see that he was
in our clinic. Based on their previous interactions with him,
he would like to return to their care for further evaluation
and possible intervention. I believe this is
appropriate.” Dkt. 21-8 at 6.
December 10, 2015, Dr. Agler saw Plaintiff in the infirmary.
During this visit, Dr. Agler continued the plan of care, but
discontinued Plaintiff's wheelchair to improve
circulation. Dkt. 21-6 at 3.
December 15, 2015, Dr. Agler approved a routine (non-urgent)
surgical consultation request for Plaintiff to see Dr.
Bourquard, who is also a general surgeon. Id. at
February 4, 2016 - March 15, 2016
February 4, 2016, Dr. Young saw Plaintiff for complaints of
diarrhea. Dkt. 28-4 at 44. Dr. Young collected stool samples
and sent them to the lab to check for infections.
Id. During this appointment, Plaintiff told Dr.
Young about three previous abdominal surgeries: an
appendectomy in 1995, an exploratory abdominal surgery in
1999, and the diagnostic laparoscopy in 2015. Id.
Dr. Young noted that Plaintiff's surgical history
increases the likelihood complications associated with
surgery, such as infections and adhesions (where the colon
does not properly seal after resection surgery). Dkt. 28-3 at
¶ 46. Furthermore, Dr. Young determined that
Plaintiff's surgical history decreases the likelihood
that colon resection surgery would resolve Plaintiff's
March 2, 2016, Dr. Young saw Plaintiff in a follow-up. Dkt.
28-4 at 43. During this visit, Dr. Young informed Plaintiff
that the stool test was negative for infectious processes.
Id. Dr. Young prescribed a new laxative to
compensate for the diarrhea. Id.
this visit, Dr. Young also discussed with Plaintiff his
intention to continue medical, rather than surgical
treatment. Id. Plaintiff alleges that Dr. Young made
this decision because there was a chance Plaintiff would be
released from incarceration at the end of the year. To
illustrate, Plaintiff alleges that Dr. Young stated,
“hopefully they'll release [you] and then
[you]'ll be able to get the ‘required'
care [you] need.” Dkt. 21 at 28 (emphasis in original).
Notably, Plaintiff then alleges that Dr. Young (in the same
conversation) said, “You don't need surgery. You
want surgery because you were told you may need it, but
I'm telling you you don't. I just don't see it
helping you and besides, surgery is expensive and we just
don't need to be making the taxpayers pay that kind of
money for something that I feel will be of no benefit to
you.” Id. at 29.
March 15, 2016, Dr. Young cancelled the non-urgent surgical
consultation with Dr. Bourquard, which had been approved by
Dr. Agler on December 15, 2015. Id. at 21. However,
he noted that if Plaintiff were to develop volvulus ...