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Cox v. Corizon Correctional Health Services

United States District Court, D. Idaho

April 30, 2019

NAKIA COX, Plaintiff,


          B. Lynn Winmill, U.S. District Court Judge.


         Before the Court are Defendants Dr. John Migliori, Grant Roberts, and Samuel Pierson's Motion to Dismiss for Lack of Prosecution (Dkt. 29) and Motion for Summary Judgment (Dkt. 33). Having reviewed the briefing, as well as the record in this case, the Court has determined that oral argument is unnecessary. Accordingly, the Court enters the following Order.


         Plaintiff Nakia Cox filed a pro se Complaint on April 23, 2018, against various individuals and entities, including the moving Defendants. Dkt. 7. The Complaint alleges that Mr. Cox suffers from Thoracic Outlet Syndrome (a vascular condition) (“TOS”) requiring “urgent surgical intervention, ” but an off-site provider incorrectly diagnosed a separate condition-Reflex Sympathectomy Dystrophy, also known as Complex Regional Pain Syndrome-because it does “not require costly surgical intervention.” Dkt. 7 at 7-9. In its Initial Review Order the Court permitted Mr. Cox to proceed against Defendants Migliori, Roberts, and Pierson on claims of deliberate indifference to a serious medical need. Specifically, the Court permitted Mr. Cox to proceed based on the allegations that he had been: “diagnosed with Thoracic Outlet Syndrome, surgery was recommended, and Defendants failed to authorize or provide surgery as recommended, instead diagnosing him with Complex Regional Pain Syndrome and providing opioids as treatment, ” and that, “[a]s a result, Plaintiff suffers pain and blockage of his arteries, and he lives in constant fear of blood clots, heart attack, or death.” Dkt. 10 at 2, 5-6.

         On October 8, 2018, Mr. Cox filed a Motion for Preliminary Injunction, asking the Court to order an appointment with an off-site doctor, and treatment for the TOS Mr. Cox believes is necessary. Dkt. 18 at 13-16. On February 27, 2019, the Court denied Mr. Cox's Motion for Preliminary Injunction, concluding that Mr. Cox failed “to establish either a likelihood of success on the merits or a likelihood of irreparable injury in the absence of preliminary injunctive relief.” Dkt. 27. The Court summarized the basis of Mr. Cox's claim in this case as “a difference of medical opinion between Dr. Bunt, who initially recommended surgery and a referral to an outside pain specialist, and Defendants Dr. Migliori, Mr. Pierson, Mr. Roberts and Ms. Seigert, who collectively carried out an alternate course of treatment.” Id.


         First, the Court notes that Mr. Cox has failed to respond to the Motion for Summary Judgment within the time frame indicated by the Court. The Court sent Mr. Cox the warning it sends to every pro se plaintiff that, “if you do not file your response opposing the motion within 21 days (or such other time period set by the Court), the Court will consider the facts provided by the moving part as undisputed and may grant the motion based on the record before it, or it may dismiss your entire case for failure to prosecute (abandonment of your case).” See Local Rule 7.1(e)(2); Fed.R.Civ.P. 41(b). Dkt. 34, at 2 (emphasis in original).

         Mr. Cox has not responded to Defendants' Motion for Summary Judgment. Idaho District Local Rule 7.1 outlines:

In motions brought under Federal Rule of Civil Procedure 56, if the non-moving party fails to timely file any response documents required to be filed, such failure shall not be deemed a consent to the granting of said motion by the Court. However, if a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Federal Rule of Civil Procedure 56(c) or Local Rule 7.1(b)(1) or (c)(2), the Court may consider the uncontested material facts as undisputed for purposes of consideration of the motion, and the Court may grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the moving party is entitled to the granting of the motion. Idaho Dist. Loc. R. 7.1(e)(2).

         Accordingly, pursuant to this Court's Notice to Mr. Cox, as well as Local Rule 7.1, Mr. Cox's failure to timely respond to Defendants' Motion for Summary Judgment is deemed acquiescence to the facts alleged in their motion. The Court thus considers Defendants' Statement of Facts as undisputed.

         While incarcerated at Idaho Correctional Institution in Orofino, Mr. Cox voiced complaints regarding pain in his left shoulder and arm. On March 9, 2017, as part of the work up for Mr. Cox's complaints and symptoms, and upon the belief that Mr. Cox may be suffering from thoracic outlet syndrome, it was noted that an evaluation by a vascular or thoracic surgeon was necessary. Dkt. 33-3 at ¶ 4. There was no such specialist available in the area, and therefore Mr. Cox agreed to be transferred to Boise for this specialty evaluation and care. Id. On March 14, 2017, Mr. Cox was transferred to Idaho State Correctional Institution to await an appointment with a specialist. Id. On May 8, 2017, Mr. Cox was seen offsite by a cardiothoracic and vascular specialist, Dr. Phillipe A. Masser, to be evaluated for TOS, involving the compression of blood vessels or nerves in the lower neck or upper chest. Dkt. 33-3 at ¶ 5. Dr. Masser determined that in fact Mr. Cox was not suffering from TOS and that his symptoms were consistent with Reflex Sympathectomy Dystrophy (“RSD”), rather than a vascular disease. Id. Dr. Masser diagnosed Mr. Cox with RSD and noted that treating the condition was not his area of expertise. Id. He therefore referred Mr. Cox back to facility providers and noted that “referral to a Pain Medicine specialist was probably in order.” Id.

         RSD (also known as Complex Regional Pain Syndrome or “CRPS”) is a relatively poorly understood condition in which a region of the body (typically, the distal limbs) is characterized by on-going pain that is disproportionate (both in degree and persistence) to any known injury or trauma. Dkt. 33-3 at ¶ 6. While RSD often begins with some known trauma, the pain may continue well after the trauma has resolved and may be more severe than the trauma would normally indicate. Id. RSD is believed to be associated with damage to or malfunctioning of the peripheral and central nervous systems, but the precise mechanism and etiology of the condition is not known. Id.

         Dr. Migliori became involved with Mr. Cox's care after the appointment with Dr. Masser. Dkt. 33-3 at ¶ 7. He reviewed Mr. Cox's medical records and Dr. Masser's evaluation and agreed with Dr. Masser's assessment of RSD as the cause for Mr. Cox's symptoms. Id. Though Dr. Masser stated that a referral to a pain specialist was “probably in order, ” Dr. Migliori determined that no such referral was warranted. Id. at ¶ 8. As a medical doctor and anesthesiologist, Dr. Migliori has extensive experience treating and managing chronic pain. Id. Unfortunately, RSD is not a condition for which there is a “cure.” Id. In some cases, patients are treated with nerve blocks in which an anesthetic or other substance is injected around nerve tissue, but those treatments are often ineffective and, even when effective, their effectiveness is often short-lived. Id. More often, and certainly as an ...

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