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McGiboney v. Corizon; Idaho Department of Corrections

United States District Court, D. Idaho

July 11, 2019





         Before the Court is Plaintiff Joshua McGiboney's Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 10); Motion to Exceed Page Limits (Dkt. 34); and Motion to Appoint Counsel (Dkt. 38). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons stated below, the Court will GRANT in PART and DENY in PART Plaintiff's request for injunctive relief, GRANT Plaintiff's request to exceed page limits, and DENY Plaintiff's motion for appointment of counsel.


         Plaintiff Joshua McGiboney (hereinafter “McGiboney”) is an inmate incarcerated by the Idaho Department of Correction (“IDOC”) at the Idaho State Correctional Institution (“ISCI”). McGiboney has a serious medical condition called arteriovenous malformation (“AVM”). Dkt. 31-3, at 2. In general, AVM is an “abnormal tangle of blood vessels connecting arteries and veins, which disrupts normal blood flow and oxygen circulation.” Dkt. 31-2, at ¶ 6. McGiboney suffers from severe pain, loss of strength and mobility, loss of bowel and bladder functions, paralysis that generally confines him to a wheelchair, and other symptoms as a result of his AVM.

         In 2011, while incarcerated, McGiboney experienced a sudden onset of midthoracic back pain. Plaintiff was treated at St. Luke's Boise Medical Center and was later diagnosed with a hemorrhage in his spinal cord as a result of his AVM. The neurosurgeon who treated Plaintiff, Dr. Ronald Jutzy, noted surgery was not an option due to risk of permanent stroke to Plaintiff's spinal cord. Dr. Jutzy later reiterated that there was no local surgical option, and that Plaintiff was at a very high risk for paraplegia if he should proceed with elective surgery. Dr. Jutzy also stated his only recommendation “would be to have McGiboney's case reviewed by Dr. Robert Spetzler at Barrow's Neurological Institute in Phoenix, Arizona.” Id. at ¶ 7.

         After the 2011 event, McGiboney filed his first Eighth Amendment claim for deliberate indifference under 42 U.S.C. § 1983 against his treating physician at the time, Dr. David Agler, and Corrections Corporation of America (“CCA”).[1] McGiboney v. Agler, 1:13-cv-00214-REB.[2] McGiboney's first suit involved his treatment between May 12, 2011, and May 23, 2011, which was when Dr. Agler first understood that McGiboney had been previously diagnosed with AVM, and the period running from approximately April through October of 2012, when McGiboney's condition began to worsen after initial improvement. Id., Dkt. 59, at 2. Following a trial held on November 7 through November 10, 2016, the jury found Dr. Agler was deliberately indifferent to McGiboney during the time period between May 12, 2011, through May 23, 2011, that McGiboney was harmed as a result, and awarded McGiboney $11, 000.00 in compensatory damages. Id., Dkt. 140.[3] The jury also awarded McGiboney $25, 000.00 in punitive damages. Id. McGiboney, proceeding pro se and in forma pauperis, filed the instant action, his second suit asserting claims based on 42 U.S.C. § 1983, on November 20, 2018. McGiboney's complaint was screened pursuant to 28 U.S.C. 1915 and 1915A, and he was allowed to proceed on his Eighth Amendment and related state law claims against Defendants Corizon and Dr. Rebekah Haggard (for all types of requested relief), Defendant Warden Alberto Ramirez[4] for injunctive relief only, and on his retaliation claim against Defendant Jared Povar.[5] Dkt. 7, at 31-32. All other claims against all other Defendants were dismissed. McGiboney filed a Motion for Temporary Restraining Order and Preliminary Injunction on March 22, 2019. Dkt. 10.

         McGiboney's Eighth Amendment claims involve the medical care, or lack thereof, McGiboney has received for his AVM since January 7, 2016.[6] Dkt. 2, at ¶ 23. Due to McGiboney's worsening symptoms, a nondefendant medical provider working for Corizon- the private entity currently providing medical care to Idaho inmates under contract with the IDOC-told McGiboney on January 7, 2016, that he would discuss the possibility of an MRI with then-Regional Medical Director Dr. Murray Young.[7] Id.

         On March 2, 2016, McGiboney was transferred from the Idaho State Correctional Center to the ISCI. McGiboney immediately submitted a health service request for the MRI and a visit with Dr. Young to discuss additional treatment options. Another provider also requested an MRI for McGiboney on April 25, 2016. Four days later, McGiboney received notice that Dr. Young had denied the request. The next time McGiboney attempted to contact Dr. Young, in July of 2016, McGiboney was told Dr. Young was no longer Corizon's Regional Medical Director. Defendant Dr. Haggard replaced Dr. Young as the Corizon Regional Medical Director for IDOC in the summer of 2016. Dkt. 31-2, at ¶ 2.

         In September 2016-nine months after the initial recommendation for an MRI- Dr. Matthew Sweetzer examined McGiboney and determined he needed “imaging to see [the] extent of [his] condition & [a] neuro consult[.]” Dkt. 2, at ¶ 33. A nondefendant nurse then pulled McGiboney's wheelchair out of Dr. Sweetzer's office, stating that McGiboney's time was up. Id. Three weeks later, McGiboney was informed that Dr. Sweetzer no longer worked at the prison and that McGiboney must start over and re-submit health service requests.

         McGiboney eventually received an ultrasound on his left leg on October 24, 2016, at St. Luke's hospital. The St. Luke's doctor, Dr. Reada, determined that additional imaging was needed. Id. at 6. At McGiboney's next appointment, with Defendant Povar in December 2016, Defendant Povar told McGiboney that an MRI had been ordered and that McGiboney would be prescribed medication. Over three months later, McGiboney had still not had the MRI or been prescribed medication. At that point, another provider confirmed that McGiboney would be given an MRI and a follow-up with Dr. Ronald Sutherlin. Id. McGiboney was not given the MRI, nor was he evaluated by Dr. Sutherlin.[8]

         On April 13, 2017, Defendant Povar informed McGiboney that Defendant Haggard had once again denied Povar's request for an MRI, despite Dr. Reada's October 2016 recommendation for additional imaging. Defendant Haggard contends the MRI request was initially denied because McGiboney “had reported neuro function which is not consistent with AVM progression.” Dkt. 31-2, at ¶ 10. However, Defendant Haggard agreed an MRI was necessary by October 2017, when McGiboney experienced worsening symptoms. Id.

         McGiboney finally received an MRI in November, 2017, which “revealed progression of distal spinal cord syrinx below T7-T11 and L3-4 advanced degenerative disc disease with severe right foraminal stenosis.” Id. at ¶ 11. Based on the new MRI findings, Neurosurgeon Dr. Paul Montalbano recommended evaluation by a vascular neurosurgeon specialist, Dr. Ondrej Choutka. Id. While waiting for his appointment with Dr. Choutka, McGiboney sustained bleeding pressure sores because the seat of his wheelchair was “sagging down onto metal bars” and “busting [his] skin open.” Dkt. 2, at ¶ 52. McGiboney claims that “IDOC's restricted policies forced him to sit in blood & urine with open wounds & refus[ed] him access to showers all night & no laundry all week.” Id. McGiboney requested a new wheelchair. Although the request was initially denied, McGiboney received a new wheelchair on March 27, 2018. McGiboney contends that his new chair is too big, and that he is “unable to effectively propel” himself with it. Id. at ¶ 69. Defendants do not respond to McGiboney's claims regarding the injuries his first wheelchair caused or his need for a new wheelchair, nor his claims that he was denied access to showers and laundry after his pressure sores ruptured.

         Three months after Dr. Montalbano recommended McGiboney evaluation by a vascular neurosurgeon, McGiboney was seen by Dr. Choutka on February 1, 2018. Dr. Choutka noted baseline weakness in McGiboney's left leg but worsening symptoms in his right leg. Dkt. 31-2, at ¶ 12. Dr. Choutka recommended a spinal angiogram, which was performed. Id. On February 27, 2018, McGiboney returned to Dr. Choutka for a follow-up visit. Id. The two discussed various treatment options, and ultimately decided to proceed with endovascular treatment of McGiboney's AVM, “followed by posterior thoracic hemilaminectomy and placement of syringo-subarchnoid shunt, combined with foraminotomy if significant L3 nerve root compression exist[ed].” Id.

         McGiboney had the aforementioned surgeries in March, 2018, during which Dr. Dallas Peck embolized two aneurysms and Dr. Choutka performed a foraminotomy for nerve root decompression and inserted a shunt without complication. Id. at ¶ 13. Because McGiboney was unable to urinate following his surgeries, he was prescribed Urecholine; however, Corizon failed to provide McGiboney with this medication for two months. Dkt. 2, at ¶¶ 65, 68, 73. By the time McGiboney finally received Urecholine on May 19, 2018, “it was too late to stimulate [his] bladder to normal function, ” and McGiboney must now “use catheters for the rest of [his] life” in order to urinate. Id.; see also Dkt. 36- 4, at 15, ¶ 13. Defendants do not respond to McGiboney's allegations regarding their failure to provide him with Urecholine following his surgeries.

         Ten days after his March surgeries, Defendant Haggard told McGiboney that Corizon had denied him a medical mattress “despite [McGiboney's] bruised, atrophied leg & open pressure sores.” Dkt. 2, at ¶ 71. McGiboney was also told Corizon was “out of catheters” and that he would have to rinse off his used catheters and re-insert them, exposing himself to a risk of “painful & dangerous kidney infections.” Id. at 11. Corizon also had problems keeping bathing cloths in stock-cloths that McGiboney needed daily. When Corizon was out of such cloths, McGiboney “had to sit in human waste until they got some.” Id. at ¶ 56. Defendants do not respond to McGiboney's allegations regarding being denied a medical mattress, or access to new catheters and bathing cloths. However, Defendants note McGiboney had a follow-up visit with Dr. Choutka after his surgeries, at which time it was noted McGiboney was “doing wonderful” and was “happy with his progress.” Dkt. 31-2, at ¶ 13.

         At his follow-up visit, Dr. Choutka ordered that McGiboney be provided with aggressive physical therapy. Dkt. 31-3, at 30. Defendant Haggard referred McGiboney to St. Alphonsus Rehabilitation Services (“STARS”) to undergo rehabilitation. Dkt. 31-2, at ¶ 14. McGiboney underwent physical therapy from April 6, 2018, until he was discharged on November 21, 2018, when his progress plateaued.[9] Dkt. 31-2, at ¶ 14.

         After being discharged from therapy at STARS on November 21, 2018, McGiboney continued physical therapy at the prison. On December 26, 2018, he had a spinal MRI, and on March 22, 2019, a CT angiogram. Id. at ¶ 16. McGiboney's March 22, 2019, CT angiogram with Dr. Mathew Pond identified a recurrence of “the known spinal arteriovenous malformation along the inferior aspect of the previously embolized AVM nidus with the arterial feeder arising from the right T9 segmental artery.” Dkt. 31-3, at 42. McGiboney's recurring malformation measured approximately two centimeters in size, with early drainage visible, requiring embolization. Id. at 41-42. McGiboney contends that at two centimeters, his new malformation is twice the size of any previous malformations which have caused him to hemorrhage and suffer partial paralysis. Dkt. 35, at 6.

         Although Defendants represent that a “new consultation request for neurosurgery and interventional radiology follow-up” was placed as a result of Dr. Pond's report, and “is in the process of being scheduled, ” the follow-up had not been scheduled as of May 23, 2019, two months after Dr. Pond issued his report. Dkt. 31-2, at ¶ 16; Dkt. 31-3, at 45. It appears the neurosurgery and interventional radiology follow-up still have not been scheduled as of the date of this decision, more than a month later.[10] McGiboney is in imminent danger of hemorrhaging as a result of his spinal arteriovenous malformation, which could cause stoke, additional paralysis, coma or death, and requires embolization. Dkt. 36-2, at ¶ 7; Dkt. 31-3, at 42.

         McGiboney filed his Motion for a Temporary Restraining Order and Preliminary Injunction on March 18, 2019.[11] In his motion, McGiboney seeks an injunction against Defendants to ensure he “receives adequate and meaningful medical care and treatment to sustain his life.” Dkt. 10-1, at 1. Defendants oppose the motion on a number of grounds addressed below.


         The primary purpose of a preliminary injunction is to prevent irreparable harm which may occur before a decision on the merits can be rendered by the trial court. A preliminary injunction “is an extraordinary remedy never awarded as a matter of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A preliminary injunction may take two forms. “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (internal alterations and quotation marks omitted). A mandatory injunction orders a party to take action. Id. at 879. Because a mandatory injunction “goes well beyond simply maintaining the status quo pendite lite” it is particularly disfavored. Id. “In general, mandatory injunctions ‘are not granted unless extreme or very serious damage will result and are not issued in doubtful cases where the injury complained of is capable of compensation in damages.'” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1980)). Whether to grant or deny a temporary restraining order or preliminary injunction is a matter within the court's discretion. Koller v. Brown, 224 F.Supp.3d 871, 875 (N.D. Cal. 2016) (citing Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979)).

         A party seeking a preliminary injunction must establish: (1) a likelihood of success on the merits; (2) that the moving party will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities weighs in favor of the moving party; and (4) that an injunction will serve the public's interest. Winter, 555 U.S. at 20.

         In cases like this one, which are governed by the Prison Litigation Reform Act (“PLRA”), “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). The court must also “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.” Id. The Ninth Circuit has held that although the PLRA affects the type of prospective injunctive relief that may be awarded, “it has not substantially changed the threshold findings and standards required to justify an injunction.” Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir.2001) (affirming grant of prospective and retrospective relief as least restrictive means to correct constitutional violations). Unless the court orders otherwise after making specific findings required by the statute, “preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry[.]” 18 U.S.C. § 3626(a)(2).


         A motion for preliminary injunction must be supported by “[e]vidence that goes beyond the unverified allegations of the pleadings.Fidelity Nat. Title Ins. Coverage v. Castle, 2011 WL 5882878, at *3 (N.D. Cal. 2011) (citation omitted). However, a “district court may rely on otherwise inadmissible evidence, including hearsay evidence.” Id.; see also Flynt Distrib. Co., Inc., v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (“The urgency of obtaining a preliminary injunction necessitates a prompt determination. . . . The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial.”); Ross-Whitney Corp v. Smith Kline & French Lab., 207 F.2d 190, 198 (9th Cir. 1953) (holding preliminary injunction may be granted on affidavits).

         For purpose of deciding the present motion, the Court relies on the following evidence submitted by McGiboney: the averments in the complaint; the declarations submitted in support of McGiboney's Motion and Reply Brief; documents that evidence the recommendations made by Corizon medical staff and outside providers regarding McGiboney's medical condition and treatment assessment; and documents that evidence McGiboney's administrative grievances and responses thereto. The Court also considers the declaration of Defendant Haggard and evidence in support submitted by Defendant Haggard in her ...

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