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Dopp v. Larimar

United States District Court, W.D. Oklahoma

September 29, 2017

RICHARD LYNN DOPP, Plaintiff,
v.
RAY LARIMER, [1] et al., Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for review of the Supplemental Report and Recommendation [Doc. No. 62], issued by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends that summary judgment be granted to Defendants Ray Larimer and Fred Sanders, D.O. on Plaintiff Richard Dopp's remaining claim under 42 U.S.C. § 1983 that he was denied medical care for a serious spinal condition. Plaintiff, who appears pro se, has filed a timely written objection [Doc. No. 63]. He has also filed two motions [Doc. Nos. 64 & 65], seeking to amend his prior response to Defendants' summary judgment motion and to supplement the record with additional documentary evidence to support his claim. The Court must make a de novo determination of the portions of the Report to which a specific objection is made, and may accept, reject, or modify the recommended decision in whole or in part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff's confinement as a state prisoner in custody of the Oklahoma Department of Corrections (“ODOC”) while he was housed at the Davis Correctional Facility (“DCF”), a private prison in Holdenville, Oklahoma.[2] Previously, the Court adopted Judge Purcell's initial Report and Recommendation [Doc. No. 33] and dismissed all claims asserted in the Complaint except Count II, alleging a denial of “adequate medical treatment for [Plaintiff's] chronic daily head [and] neck aches” (Compl. [Doc. No. 1], at 9), against DCF's health services administrator, Mr. Larimer, and a physician employed at DCF, Dr. Sanders. See Order of July 29, 2016 [Doc. No. 46]. The basis of Plaintiff's § 1983 claim against Dr. Sanders and Mr. Larimer is that they delayed or refused to perform their duty “as a gatekeeper for other medical personnel capable of treating the condition, ” that is, a spinal condition in Plaintiff's neck allegedly causing severe and uncontrolled pain. See id. at 10-11 (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)).

         Following the Court's prior ruling and re-referral of the case to Judge Purcell, Defendants Larimer and Sanders moved for summary judgment based on their affidavits and a Martinez[3] report regarding Plaintiff's medical records. See Defs.' Mot. Summ. J. [Doc. No. 53]; Special Report [Doc. No. 52]. The motion addresses the allegations of Plaintiff's claim that Dr. Sanders and Mr. Larimer acted with deliberate indifference to a serious medical need because, although Plaintiff received treatment for chronic headaches and neck pain, including diagnostic tests (x-ray, CT scan, and MRI), Plaintiff was promised a neurosurgical evaluation at the OU Medical Center, but the appointment was repeatedly delayed and essentially denied, depriving him of surgical treatment that was needed to correct a condition causing “unbearable pain” and, potentially, “permanent nerve damage and/or temporary or permanent paralysis.” See Compl. [Doc. No. 1], at 9-10. Based on the allegations of the Complaint, controlling case law, and findings of undisputed facts shown by the case record, Judge Purcell concludes that Plaintiff has failed to demonstrate a genuine issue of material fact for trial because “neither Mr. Larimer nor Dr. Sanders failed to perform a gatekeeper role for Plaintiff's further treatment of his neck impairment.” See Suppl. R&R [Doc. No. 62] at 18.

         Within the time period set by Judge Purcell, Plaintiff has filed a written Objection [Doc. No. 63] and a Motion and Brief Requesting to File an Amended/Supplemental Response to Defendant's Motion for Summary Judgment [Doc. No. 64].[4] Plaintiff complains that Judge Purcell's decision is based on a summary judgment response that Plaintiff filed before the deadline to respond; Plaintiff asserts that he was prevented from making a more complete response at that time by institutional transfers that deprived him of some written materials. Plaintiff bases his Objection on both his prior response and the proposed amended response submitted with his Motion. The Court finds no error by Judge Purcell. Plaintiff neither requested additional time to respond, nor asserted that his initial response was incomplete or lacked any materials needed to make a full response. Further, the Court declines to permit the supplementation of a summary judgment response that was complete at the time it was made. The Court declines to consider new matter raised for the first time in objection to Judge Purcell's Supplemental Report. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”); see also ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1184 85 (10th Cir. 2011); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010).[5]

         Upon de novo consideration of the issues raised by Plaintiff's Objection, the Court concurs in Judge Purcell's conclusion that Defendants Larimer and Sanders are entitled to summary judgment on the § 1983 claim asserted against them in Count II of the Complaint. Liberally construing Plaintiff's Objection, the Court finds the following issues presented by timely and specific objection to the Supplemental Report: 1) Whether Judge Purcell impermissibly acts as an advocate for Defendants by treating as undisputed additional facts that were not stated in their summary judgment brief and by rejecting Plaintiff's attempts to dispute some facts; 2) Whether Judge Purcell mistakenly finds that no physician had recommended surgical treatment of Plaintiff's cervical spine condition; 3) Whether Judge Purcell erroneously concludes that the undisputed facts do not establish the subjective element of Plaintiff's § 1983 claim where Defendants allowed Plaintiff to wait 17 months from the time of the initial referral to OU Medical Center in February 2014 until he was finally seen in July 2015 (shortly after leaving DCF), despite his persistent complaints of severe pain and a worsening condition. As to all other matters addressed by Judge Purcell and not specifically challenged by Plaintiff in his Objection, further review is waived under the court of appeals' well-established “firm waiver” rule. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).

         Issues 1: Summary Judgment Procedure

         Plaintiff complains that Judge Purcell improperly includes in his statement of undisputed facts, additional facts that were not stated in Defendants' brief.[6] Plaintiff provides a copy of the pertinent pages of the Supplemental Report bearing his handwritten notes to indicate added factual matters. See Pl.'s Obj., Ex. 1 [Doc. No. 63-1]. Rule 56 specifically authorizes a district court, in its discretion, to consider materials in the record other than those cited by the parties. See Fed. R. Civ. P. 56(c)(3); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). In this case, Plaintiff complains of instances in which Judge Purcell provides an additional fact shown by the medical records, such as a radiologist's report, or notes that a drug was a nonprescription pain reliever. There is no dispute concerning these matters, and they are pertinent to a clear understanding of the issues. The Court therefore finds no abuse of discretion by Judge Purcell.

         Plaintiff also challenges Judge Purcell's finding that Plaintiff failed to controvert material facts and treating as undisputed facts that Plaintiff opposed in his response brief. However, “[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” See Fed. R. Civ. P. 56(c)(1)(B); see also Adler, 144 F.3d at 671-72 (to show a genuine dispute of material facts, “the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits;” a plaintiff may not rely on conclusory allegations of a complaint, even if it is verified). If an affidavit or declaration is used, it “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.” Fed.R.Civ.P. 56(c)(4). “[C]onclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). The Court's review of Plaintiff's summary judgment response shows the correctness of Judge Purcell's finding that matters stated by Plaintiff lacked evidentiary support or were supported only by a speculative statement of Plaintiff's opinion or allegation.[7] Plaintiff does not identify any specific error by Judge Purcell in treating a particular fact as undisputed. Thus, the Court finds this general objection to be unsupported, and adopts Judge Purcell's statement of undisputed facts.

         Issue 2: Factual Basis for a Claim of Denied Surgical Treatment

         Plaintiff objects to Judge Purcell's conclusion that “no physician has recommended that Plaintiff should undergo surgery to treat his cervical foraminal stenosis (narrowing of the cervical disc space).” See Suppl. R&R [Doc No. 62] at 16. To support his objection, Plaintiff refers to materials that consist of an unsigned, handwritten note from an unidentified author associated with “North American Spine” and a letter from a “Spine Care Representative” with the “Laser Spine Institute.” See Pl.'s Obj. [Doc. No. 63] at 2 (citing Pl.'s Resp. Br. [Doc. No. 59] at 9-10 & Exs. 15-19 [Doc. Nos. 59-13 to 59-17). These documents do not reflect a physician's recommendation that Plaintiff should receive surgical treatment of his spinal condition, and are not a proper form of summary judgment evidence. Further, these papers apparently were obtained by Plaintiff after he left DCF and, therefore, do not suggest Defendants denied Plaintiff a recommended surgical treatment for his condition.[8] Accordingly, the Court finds no basis to reject Judge Purcell's conclusion, as part of his analysis of Plaintiff's § 1983 claim against Defendants, that no physician had recommended surgery for Plaintiff at the relevant time.

         Issue 3:Merits of Plaintiff's “Gateway” Claim of Deliberate Indifference to a Serious Medical Need

         A § 1983 claim of deliberate indifference to an inmate's serious medical need has objective and subjective components. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Judge Purcell finds “no material dispute that Plaintiff has shown the existence of a serious medical need, ” that is, one “sufficiently serious” to satisfy the objective component of his claim. See Suppl. R&R [Doc. No. 62] at 5 (citing Sealock, 218 F.3d at 1209). The question presented by Defendants' Motion is whether Plaintiff can satisfy the subjective component by showing Defendants acted with deliberate indifference to his need, that they “kn[ew] of but disregard[ed] an excessive risk to [Plaintiff's] health or safety.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sealock, 218 F.3d at 1209.

         Upon de novo consideration of this issue, the Court concurs in Judge Purcell's conclusion that Plaintiff has failed to demonstrate a genuine dispute of material fact regarding Defendants' deliberate indifference to Plaintiff's need for further diagnostic testing and examination by a specialist who could better evaluate Plaintiff's condition and determine his need for surgical treatment. The deliberate indifference standard is not satisfied “where a doctor merely exercises his considered medical judgment, ” such as deciding “whether to consult a specialist or undertake additional medical testing.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). The standard is satisfied “where the need for additional treatment or referral to a medical specialist is obvious” but ignored, such as where “a medical professional recognizes an inability to treat the patient due to the seriousness of the condition and his corresponding lack of expertise but nevertheless declines or unnecessarily delays referral.” Id. “A prison medical professional who serves ‘solely as a ...


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