United States District Court, D. Montana, Great Falls Division
W. Molloy, District Judge
Lloyd Maier, a pro se prisoner proceeding in forma pauperis
and without counsel, alleged Defendants Frink and Rost
violated his Eighth Amendment rights by failing to provide
him with a working hearing aid while he was incarcerated at
Crossroads Correctional Center. (Amended Complaint, Doc. 12
at 27-28.) Defendants filed motions for summary judgment
which were denied March 30, 2016. (Doc. 74.) On May 13, 2016,
Defendants filed a Motion for Leave to File Additional
Summary Judgment Briefing based upon newly acquired evidence.
(Doc. 75.) The Court construed the filing as a motion for
leave to file a motion for reconsideration and as such, the
motion was granted. (Doc. 84.) Pending before the Court are
Defendants' Motions for Reconsideration. (Docs. 85, 87.)
Rule of Civil Procedure 56(a) entitles a party to summary
judgment "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." The movant bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has satisfied its
burden, the non-moving party must go beyond the pleadings and
designate by affidavits, depositions, answers to
interrogatories, or admissions on file, "specific facts
showing that there is a genuine issue for trial."
Id. at 324. In deciding a motion for summary
judgment, the Court views the evidence in the light most
favorable to the nonmoving party and draws all justifiable
inferences in the non-moving party's favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Court has "the inherent procedural power to reconsider,
rescind, or modify an interlocutory order" before entry
of final judgment. City of Los Angeles, Harbor Div. v.
Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001); see also Fed. R. Civ. P. 52(b) (providing
that any order which does not terminate the action is subject
to revision at any time before judgment is entered). The
Court will consider whether the newly presented evidence from
Hearing Life changes the finding that there is a genuine
issue of material fact regarding whether any named Defendant
was deliberately indifferent to Mr. Maier's serious
state a § 1983 claim for failure to provide medical care
a prisoner must allege a defendant's "acts or
omissions [were] sufficiently harmful to evidence a
deliberate indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.
1986). In the Ninth Circuit, the test for deliberate
indifference to medical needs is two-pronged: (1) "the
plaintiff must show a serious medical need by demonstrating
that failure to treat a prisoner's condition could result
in further significant injury or the unnecessary and wanton
infliction of pain"; and (2) "the plaintiff must
show the defendant's response to the need was
deliberately indifferent." Wilhelm v. Rotman,
680 F.3d 1113, 1122 (9th Cir. 2012)(quoting Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
Mr. Maier's hearing loss was a "serious medical
need" was not disputed for purposes of summary judgment,
therefore the analysis is focused on the second prong:
whether there is sufficient evidence from which a trier of
fact might reasonably find that Defendants were deliberately
indifferent to Mr. Maier's medical needs related to his
Maier first asked to have his hearing aid fixed on September
17, 2013. (Doc. 50-3 at 5.) The hearing aid was sent to
Hearing Life in Great Falls, Montana for repair on October
17, 2013. (Doc. 46-2 at 12.) The hearing aid was returned to
Crossroads on October 28, 2013. (Clinic Note, Doc. 46-2 at
11.) The Court previously found that with regard to this
first incident, there is no evidence that any Defendant was
deliberately indifferent to Mr. Maier's hearing needs.
(Doc. 71 at 12.)
Maier next complained about his hearing aid on December 5,
2013 when he submitted a sick call request asking for his
hearing aid to be turned up. (Doc. 37-1 at 8.) According to a
January 31, 2014 Crossroads Clinic Note, Mr. Maier's
hearing aid was again sent to Hearing Life. (Clinic Note,
Doc. 46-2 at 10.) Judge Johnston issued his Findings and
Recommendations to deny the motion for summary judgment on
February 12, 2016 finding there was an issue of fact
regarding whether the hearing aid was sent to Hearing Life in
January/ February 2014. (Doc. 71 at 12.) This Court adopted
those Findings and Recommendations on the same grounds on
March 30, 2016. (Doc. 74.)
have now submitted undisputable evidence that Mr. Maier's
hearing aid was sent to Hearing Life on January 31, 2014, the
hearing aid was cleaned and checked by Hearing Life and
returned to Crossroads on February 7, 2014. (Doc. 76-1 at 9.)
Mr. Maier attempts to dispute this evidence by arguing that
it is simply a computer print out and not a work order or an
invoice. (Doc. 89 at 3.) But the issue in this case is not
what occurred at Hearing Life, it is whether is hearing aid
was sent out for repair. It is now indisputable it was.
attempted to return the hearing aid to Mr. Maier on February
20, 2014 but Mr. Maier stated he could not hear through it
and gave it back. A nurse at Crossroads again attempted to
give Mr. Maier his hearing aid on February 21, 2014 but
according to Crossroads' records he refused the hearing
aid and it was placed in the medical pharmacy. (Treatment
Note, Doc. 37-1 at 10.)
February 28, 2014, Mr. Maier filed a formal grievance asking
that they find him a medical provider who could get him
proper hearing equipment so he could hear. The response
indicated that Mr. Maier had been provided with the proper
equipment. (Doc. 37-1 at 3.)
Maier then filed a grievance appeal on March 13, 2014.
According to Warden Frink, the appeal was directed to Montana
Department of Corrections (DOC)'s health services to
provide Maier with specialized treatment with an audiologist.
(Affidavit of Martin Frink, Doc. 61 at ¶ 13.) The appeal
was responded to by L. James, RN DOC Health Services as
designee for the prison administration. Nurse James granted
Maier's appeal on ...