December 17, 2013
STACY G. HALL, Petitioner,
LEROY KIRKEGARD, Respondent.
Petitioner Stacy G. Hall (Hall) has filed a petition for a writ of mandate to compel Respondent Montana State Prison (MSP) Warden Leroy Kirkegard to require medical care be provided to him. Hall claims that while performing a work detail in prison he fell and seriously injured his right shoulder. Prison medical staff scheduled a consultation with an Anaconda surgeon who determined that due to the nature, extent and severity of the injury, surgery would be more harmful than helpful. The surgeon prescribed physical therapy and range of motion exercises to prevent the shoulder socket from "freezing up."
Hall claims he was provided only one session with a physical therapist. Hall was returned to the surgeon for a follow-up, where he asserts he was prescribed three physical therapy sessions per week. Hall was seen for a second opinion by a Missoula surgeon who agreed with the first opinion and also recommended physical therapy.
Hall maintains that he was denied further physical therapy and despite numerous requests, prison medical staff denied him pain management. Consequently, he seeks a writ of mandate to require that he be provided off-site physical therapy and that prison staff follow all medical orders for his care and treatment. He also requests that we appoint counsel to investigate his claims, gather evidence, and represent him in future proceedings.
Warden Kirkegard filed a response at the Court's request. Hall has since filed a memorandum of points and authorities and a motion in an effort to expedite the proceedings.
Hall states that his injury consists of a comminuted fracture of the proximal humerus. Hall maintains that he has suffered a permanent injury and continues to suffer pain and further damage as a result of the delay in providing him treatment.
Through counsel, Warden Kirkegard responds that after Hall was injured, Hall was seen promptly by medical staff in prison and transported to the Deer Lodge Medical Center for evaluation and treatment. Once diagnosed with a right humeral head fracture, Hall was seen by two orthopedic specialists. Hall was also seen by a physical therapist outside of prison where he was taught range of motion exercises that he can perform without supervision in his cell. He was instructed to repeat the exercises four times per day. In addition, the Warden clarified that Hall has been seen by physicians and staff in the MSP Infirmary and instructed to perform the exercises regularly, four times per day.
We consider whether Hall has stated a prima facie claim for a writ of mandamus. To do so, a party must show: 1) entitlement to the performance of a clear legal duty by the party against whom the writ is directed; 2) that no speedy and adequate legal remedy is available; and 3) the clear legal duty requested involves the performance of a ministerial act—not a discretionary act. Section 27-26-102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834. A decision whether to issue an order directing Warden Kirkegard to provide Hall treatment outside of the prison requires the exercise of reasoned judgment. Warden Kirkegard has no clear legal duty to provide treatment to Hall in a manner that has not been prescribed by a physical therapist or orthopedic specialist. Mandamus offers no remedy for the performance of what amounts to a discretionary act. Further, it appears that Hall is receiving the medical oversight recommended by the specialists and physical therapist.
IT IS ORDERED that the petition is DENIED. The Clerk is directed to provide a copy hereof to Stacy G. Hall and to counsel of record.