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Savage v. Gelok

United States District Court, D. Idaho

August 14, 2017



          B. Lynn Winmill, United States District Court Chief Judge


         Pending 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).

         Having 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.


         1. Procedural Background

         Plaintiff 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.

         On 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.

         On 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.

         2. Factual Background

         This 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 judgment.”)

         A. Plaintiff's Injury and Medical Care

         Plaintiff 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.

         (1) June 26, 2015 - September 9, 2015

         From 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.

         On June 30, 2015, gastroenterologist Dr. Mark Lloyd performed a colonoscopy, which showed possible partial volvulus, but no obstruction. Id. at 374.

         On July 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[1] 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.

         Plaintiff's 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.

         On July 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 care).” Id.

         On 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.

         On 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. Luke's. Id.

         (2) September 10, 2015 - December 15, 2015

         On 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 day. Id.

         On 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.

         Between 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.

         On 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 193.

         On 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.

         On 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.

         On 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 wheelchair. Id.

         On 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.

         On 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.

         On 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 179.

         (3) February 4, 2016 - March 15, 2016

         On 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 symptoms. Id.

         On 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.

         During 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.

         On 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 ...

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