United States District Court, D. Idaho
DWAYNE R. STEPHENSON, Plaintiff,
CORIZON MEDICAL SERVICES, DR. YOUNG, NP POULSON, et al., Defendants.
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge
before the Court are Plaintiff Dwayne R. Stephenson's
Motion for Issuance of Subpoena Duces Tecum (Dkt. 20) and
Motion to Compel Disclosure (Dkt. 25), as well as Defendant
Dr. Murray Young and Nurse Practitioner Poulson's Motion
for Summary Judgment. (Dkt. 23.) Having reviewed the record
and having considered the argument of the parties, the Court
finds that oral argument is unnecessary and enters the
FOR SUMMARY JUDGMENT
Summary Judgment Standard of Law
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 [can] be isolated and prevented from going
to trial with the attendant unwarranted consumption of public
and private resources.” Id. at 327.
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
“[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment ....”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Rather, there must be a genuine
dispute as to a material fact essential to an
important element of the cause of action or defense to
survive summary judgment. Disputes over facts that are not
material to the resolution of the motion will not preclude
summary judgment. T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
Court must consider “the cited materials, ” but
it may also consider “other materials in the
record.” Fed.R.Civ.P. 56(c)(3). The existence of a
scintilla of evidence in support of the non-moving
party's position is insufficient. Rather, “there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at
used to support or dispute a fact should be “presented
in a form that would be admissible in evidence, ” or it
may be subject to being stricken. See Fed. R. Civ.
P. 56(c)(2). Affidavits or declarations submitted in
support of or in opposition to a motion “must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
party “fails to properly support an assertion of fact
or fails to properly address another party's assertion of
fact, ” the Court may consider that fact to be
undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant
summary judgment for the moving party “if the motion
and supporting materials-including the facts considered
undisputed-show that the movant is entitled to it.”
Fed.R.Civ.P. 56(e)(3). The Court may also grant summary
judgment to a non-moving party, on a ground not raised by
either party, or sua sponte provided that the parties are
given notice and a reasonable opportunity to respond.
Court does not decide credibility of affiants or weigh the
evidence set forth by the non-moving party.
Anderson, 477 U.S. at 255. That means a party's
or witness's sworn statement must be taken as true for
purposes of summary judgment. The Court must also draw all
reasonable inferences from circumstantial evidence in a light
most favorable to the non-moving party, T.W. Elec. Serv.,
Inc., 809 F.2d at 630-31, but it is not required to
adopt unreasonable inferences from circumstantial evidence.
McLaughlin v. Liu, 849 F.2d 1205, 1207-088 (9th Cir.
1988) (observing that Matsushita Electric Industrial
Company v. Zenith Radio Corporation, 475 U.S. 574
(1986), “authorizes an inquiry on summary judgment into
the ‘implausibility' of inferences from
circumstantial evidence …, not an inquiry into the
credibility of direct evidence.”).
Eighth Amendment Standard of Law
state a claim under the Eighth Amendment, a plaintiff must
show that he is incarcerated “under conditions posing a
substantial risk of serious harm, ” or that he has been
deprived of “the minimal civilized measure of
life's necessities.” Farmer v. Brennan,
511 U.S. 825, 834 (1994) (internal citation omitted). An
Eighth Amendment claim requires a plaintiff to satisfy
“both an objective standardâthat the deprivation was
serious enough to constitute cruel and unusual punishmentâand
a subjective standardâ deliberate indifference.”
Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012),
overruled on other grounds by Peralta v. Dillard,
744 F.3d 1076 (9th Cir. 2014).
the objective standard, the Supreme Court has explained that,
“[b]ecause society does not expect that prisoners will
have unqualified access to health care, deliberate
indifference to medical needs amounts to an Eighth Amendment
violation only if those needs are ‘serious.'”
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
United States Court of Appeals for the Ninth Circuit has
defined a “serious medical need” in the following
failure to treat a prisoner's condition [that] could
result in further significant injury or the unnecessary and
wanton infliction of pain; . . . [t]he existence of an injury
that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled on other grounds, WMX
Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.
the subjective factor, to violate the Eighth Amendment, a
prison official must act in a manner that amounts to
deliberate indifference, which is “more than ordinary
lack of due care for the prisoner's interests or safety,
” but “something less than acts or omissions for
the very purpose of causing harm or with knowledge that harm
will result.” Farmer, 511 U.S. at 835. Stated
another way, deliberate indifference exists when an
“official knows of and disregards an excessive risk to
inmate health or safety, ” which means that an official
“must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Id. at 837.
in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not
enough to establish a deliberate indifference claim.
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989),
overruled in part on other grounds, Peralta v.
Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014). Nor are
differences among medical providers. Snow, 681 F.3d
at 987. “[T]o prevail on a claim involving choices
between alternative courses of treatment, a prisoner must
show that the chosen course of treatment ‘was medically
unacceptable under the circumstances, ' and was chosen
‘in conscious disregard of an excessive risk' to
the prisoner's health.” Toguchi v. Chung,
391 F.3d 1051, 1058 (9th Cir. 2004) (alteration omitted)
(quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th
indifference, medical malpractice, or negligence will not
support a cause of action under the Eighth Amendment.
Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th Cir.
1980). A mere delay in treatment does not constitute a
violation of the Eighth Amendment, unless the delay causes
serious harm. Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990). If the defendants are able to show that
medical personnel have been “consistently responsive to
[the inmate's] medical needs, and there has been no
showing that the medical personnel had “subjective
knowledge and conscious disregard of a substantial risk of
serious injury, ” a plaintiff's claims may be
dismissed by summary judgment prior to trial. Toguchi v.
Chung, 391 F.3d 1051, 1061 (9th Cir. 2004).
Eighth Amendment does not provide a right to a specific
treatment. See Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997) (“[The plaintiff] is not entitled to
demand specific care. She is not entitled to the best care
possible. She is entitled to reasonable measures to meet a
substantial risk of serious harm to her.”). A prison
doctor's recommendation for a less costly treatment is
not deliberate indifference unless the recommendation
“was so inadequate that it demonstrated an absence of
professional judgment, that is, that no minimally competent
professional would have so responded under those
circumstances.” Collignon v. Milwaukee County,
163 F.3d 982, 989 (7th Cir. 1998).
Estelle v. Gamble, supra, Inmate Gamble suffered a
back injury at work when a 600-pound bale of hay fell on him.
Doctors and other medical providers at the prison prescribed
rest and a variety of medications, including different pain
relievers and muscle relaxers. Gamble argued that the medical
providers were deliberately indifferent because they should
have done more to diagnosis his back problem, such as
x-raying his back.
United States Supreme Court disagreed, reasoning:
Gamble was seen by medical personnel on 17 occasions spanning
a 3-month period: by Dr. Astone five times; by Dr. Gray
twice; by Dr. Heaton three times; by an unidentified doctor
and inmate nurse on the day of the injury; and by medical
assistant Blunt six times. . . . The doctors diagnosed his
injury as a lower back strain and treated it with bed rest,
muscle relaxants and pain relievers. Respondent contends that
more should have been done by way of diagnosis and treatment,
and suggests a number of options that were not pursued. The
Court of Appeals agreed, stating: “Certainly an x-ray
of (Gamble's) lower back might have been in order and
other tests conducted that would have led to appropriate
diagnosis and treatment for the daily pain and suffering he
was experiencing.” 516 F.2d, at 941. But the question
whether an X-ray or additional diagnostic techniques or forms
of treatment is indicated is a classic example of a matter
for medical judgment. A medical decision not to order an
X-ray, or like measures, does not represent cruel and unusual
punishment. At most it is medical malpractice, and as such
the proper forum is the state court under the Texas Tort
Claims Act. The Court of Appeals was in error in holding that
the alleged insufficiency of the medical treatment required
reversal and remand. That portion of the judgment of the
District Court should have been affirmed.
429 U.S. at 97-98.
in Toguchi v. Chung, supra, the Ninth
Circuit underscored the difference between medical
malpractice, which is not actionable under the United States
Constitution, and deliberate indifference, which is an Eighth
Amendment violation. Particularly, a plaintiff must show that
the medical providers subjectively had knowledge of a serious
risk to the plaintiff, and chose to disregard that risk. In
Toguchi, Dr. Chung had treated Inmate Keane Toguchi
several times in the past before his untimely death in
prison. The final time she treated him, she prescribed a
course of medication that expert witnesses for the plaintiffs
(Toguchi's surviving parents) opined caused a toxic level
of drugs in his bloodstream, causing his death.
The Ninth Circuit, however, rejected the plaintiffs'
expert witness opinions that the treating physician, Dr.
Chung, had been deliberately indifferent. To reach this
result, the Court focused particularly on what Dr. Chung
knew and believed before her allegedly
wrongful acts or omissions. In response to an argument that
Dr. Chung should have considered the prescription drug
Cogentin an excessive risk to the deceased inmate's
health, the Court opined: “Because she did not
believe that Cogentin use presented a serious risk
of harm to Keane, her conduct cannot constitute deliberate
indifference.” Id. at 1058 (emphasis added).
the court noted,
It does not matter whether Dr. Chung's assumptions
and conclusions were reasonable. Rather, so long as
she was not subjectively aware of the risk that Keane
could be suffering from a drug overdose, and disregarded that
risk, she was not ...