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Burd v. Kohut

United States District Court, D. Montana, Helena Division

February 27, 2018

DOCTOR KOHUT, Defendant.


          John Johnston United States Magistrate Judge.

         Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. 53.) Although untimely, the Court will consider Plaintiff Shane Burd's Statement of Undisputed Facts (Doc. 67) filed in response to Defendant's motion. That document, however, is insufficient to establish a disputed issue of material fact. Therefore, the Court finds that Dr. Kohut is entitled to summary judgment and recommends that this matter be dismissed.


         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).

         “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. But “[a] plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted).


         Mr. Burd alleges Defendant Kohut denied him medical care and “cut off” his pain medications in retaliation for him filing a report against him with the Medical Board. (Amended Complaint, Doc. 9-1.) The clearest statement of Mr. Burd's claims is contained in his motion for preliminary and permanent injunction. (Doc. 10.) Therein, Mr. Burd seeks an order requiring Defendant to put him back on Ultram for pain, to schedule surgery, to send him to an outside specialist, to put him on a medical diet for his ulcers, to help him with his low sodium, to put him on Humira for his ulcers, and to help him with his medical condition where his stomach acids eat his intestines. (Doc. 10 at 1.)


         Mr. Burd is a 27-year-old male inmate incarcerated at Montana State Prison (MSP) in Deer Lodge, Montana. (Defendant's Statement of Undisputed Facts, Doc. 54 (hereinafter “SUF”) at ¶ 1.) During his incarceration, Mr. Burd has made multiple complaints of chronic pain, particularly in his abdominal area, and also in his neck, back, and jaw. He started complaining of abdominal pain in June 2014. (SUF at ¶ 3.) Treatment decisions regarding Mr. Burd's medication, diagnostic testing, therapy, and treatment were based on Mr. Burd's history and physical examination along with accepted medical standards of care. (SUF at ¶ 4.) Dr. Kohut evaluated and treated Mr. Burd numerous times for his abdominal pain and other complaints and referred him to outside specialists for evaluation and treatment at Deer Lodge Medical Center (DLMC) and St. James Healthcare Center in Butte (St. James). (SUF at ¶¶ 5, 6.)

         From June 2014 until Mr. Burd filed his Complaint (Doc. 2) on September 15, 2016, Mr. Burd kited the MSP Infirmary at least 48 times with complaints of abdominal pain and other medical issues including back pain, toenail fungus, bruising, a sore throat, and coughing. Medical staff responded to Mr. Burd's kites in a timely manner. When appropriate, Mr. Burd was evaluated by nursing staff to determine the acuity of the problem, and the conditions and evaluations were shared with providers, such as Dr. Kohut, for further disposition. Since June 2014, Mr. Burd has had at least 36 nursing and emergency evaluations by MSP medical staff for his complaints of pain and other issues. (SUF at ¶ 7.)

         Starting in June 2014, Mr. Burd was evaluated, diagnosed, and treated by providers at the MSP Infirmary at least 30 times, including at least 13 appointments with Dr. Kohut. Mr. Burd has also been referred to specialists and providers at DLMC and St. James at least 10 times in that time period. (SUF at ¶ 8.)

         Chronic abdominal pain is addressed by evaluating the major organ systems within the lower chest, abdomen, and pelvis. The evaluation begins with the patient's history and a physical. This includes examination of these areas, including the genitals and rectal area, by inspection, auscultation, and palpation. Laboratory testing of blood, urine, and stool samples is done to check for infection. X-rays, ultrasounds, and CT scans of the abdominal area are also used to evaluate a patient with these complaints. (SUF at ¶ 9.) Mr. Burd has undergone all of the standard evaluations and tests to address his chronic abdominal pain, sometimes multiple times. (SUF at ¶ 10.)

         In addition, Mr. Burd has been prescribed numerous medications to address his complaints of pain including: Amitriptyline and Non-Steroidal Anti-inflammatories (or NSAIDS, e.g., Ibuprofen); extra-strength Tylenol; Donnatal Elixir (both plain and mixed with Xylocaine Jelly/Mylanta (GI Cocktail)) to relieve the pain from colon and abdominal cramping; various laxatives and stool softeners to relieve the pain from constipation; muscle relaxants to relieve pain from muscle spasms; Pyridium to relieve pain from bladder and urinary spasms; antacids to relieve the pain from gastric irritation; multiple acid blockers to relieve the pain from gastric irritation; and limited prescriptions of Tramadol (Ultram) for acute pain. (SUF at ¶ 11.)

         Mr. Burd kited medical staff on June 21, 2014, with complaints of abdominal pain. He was evaluated by nursing staff on June 22, 2014, and scheduled to see a provider. (SUF at ¶ 12.) On June 30, 2014, Mr. Burd was evaluated by Dr. Scott Piranian at the MSP Infirmary and prescribed Tylenol for pain and Colace and Sennakot for constipation. (SUF at ¶ 13.)

         Mr. Burd has been diagnosed with chronic constipation based on evaluations and CT Scans of his abdominal area. Constipation is a known cause abdominal pain. Mr. Burd has been prescribed numerous different laxatives and stool softeners for this condition. (SUF at ¶ 14.)

         On August 5, 2014, Mr. Burd had an abdominal ultrasound at DLMC, which revealed possible gallbladder inflammation. Further testing, another ultrasound on August 11, 2014, and a nuclear hepatobiliary (HIDA Scan) on August 13, 2014, at St. James by Dr. Frank Raiser, MD FACS, a surgeon with Silver Bow Surgical Associates in Butte, did not show further pathology requiring intervention. (SUF at ¶ 15.)

         On August 9, 2014, Mr. Burd had an emergency nursing evaluation and was sent to DLMC for complaints of abdominal pain. Mr. Burd was transferred to St. James due to concerns of a possible appendicitis. At St. James, Dr. Debra Kontney, DO, determined that Mr. Burd did not have appendicitis based on his blood tests, lack of a fever, and the type of abdominal pain that Mr. Burd described. On August, 13, 2014, Dr. Raiser discharged Mr. Burd back to MSP “with consideration of an outpatient colonoscopy [C-scope].” (SUF at ¶ 16.)

         On August 18, 2014, Dr. Kohut reviewed Mr. Burd's chart. Dr. Kohut ordered blood tests and a three-month prescription of Prilosec for Mr. Burd based on his review and Mr. Burd's continued complaints of abdominal pain. (SUF at ¶ 17.) On September 25, 2014, Dr. Kohut ordered blood panels for Mr. Burd because previous blood work indicated possible anemia. Because the body can frequently correct anemia on its own, it is standard practice to test a patient's blood again after a few weeks before prescribing treatment. Dr. Kohut ordered a follow-up appointment with Mr. Burd. (SUF at ¶ 18.)

         On October 2, 2014, Mr. Burd saw Dr. Kohut at the MSP Infirmary for continued complaints of abdominal pain. Mr. Burd reported that the laxatives did not help with his constipation and increased his abdominal pain. Dr. Kohut ordered a CT of Mr. Burd's abdomen and prescribed Miralax for the continued constipation. Dr. Kohut also noted that Mr. Burd “remains anemic.” Dr. Kohut ordered further blood work for Mr. Burd. (SUF at ¶ 19.)

         Mr. Burd's October 27, 2014 CT scan revealed no pathology requiring intervention. (SUF at ¶ 20.) In a kite dated November 1, 2014, Mr. Burd complained of pain on his lower left side. Medical staff received the kite on November 6, 2014, assessed Mr. Burd the next day, and referred Mr. Burd to a provider. (SUF at ¶ 21.)

         On November 7, 2014, Mr. Burd was scheduled to follow-up with a provider at the MSP Infirmary regarding his October 27 CT Scan but he refused to attend the appointment. (SUF at ¶ 22.) On November 17, 2014, Mr. Burd saw Dr. Kohut, who determined Mr. Burd should have an endoscopy to check for possible internal bleeding. Mr. Burd's bloodwork continued to indicate anemia, and Dr. Kohut ordered iron supplements for Mr. Burd. (SUF at ¶ 23.)

         On November 20, 2014, Mr. Burd saw Dr. Kohut for complaints of abdominal pain. Dr. Kohut ordered another HIDA scan to check Mr. Burd's gallbladder. (SUF at ¶ 24.) On December 1, 2014, medical staff received another kite from Mr. Burd where he complained of pain on his right side. Mr. Burd was evaluated by nursing staff the next day and referred to a provider. (SUF at ¶ 25.) Mr. Burd saw PA Lance Griffin on December 3, 2014, and again on December 10, 2014, for complaints of abdominal pain. Griffin ordered blood work and hemoccult tests of Mr. Burd's stools. Griffin noted that Dr. Kohut had ordered another HIDA scan. (SUF at ¶ 26.)

         On February 6, 2015, Mr. Burd had an emergency nurse evaluation for complaints of abdominal pain. Nursing staff consulted Dr. Piranian, reviewed Mr. Burd's records, and gave Mr. Burd a laxative and a 60 mg dose of Toradol. (SUF at ¶ 27.)

         On April 3, 2015, Mr. BURD had another HIDA scan at St. James and the results were normal. (SUF at ¶ 28.) On April 20, 2015, Mr. Burd followed up after the HIDA scan with Dr. Kohut, and Mr. Burd reported feeling thirsty all the time, nauseated, hot, and lightheaded. (SUF at ¶ 29.) On April 20, 2015, Mr. Burd was transferred to DLMC due to Dr. Kohut's concern of possible appendicitis and possible diabetes. Mr. Burd was evaluated by Dr. Jason McIsaac, MD and tested negative for diabetes. Dr. McIsaac ordered another a CT scan and lab work, all of which were normal. Mr. Burd was discharged back to MSP. (SUF at ¶ 30.)

         On July 16, 2015, Mr. Burd saw PA Kim Fisk at the MSP Infirmary for a routine medical evaluation. Mr. Burd complained of continued gastrointestinal distress. Dr. Piranian submitted a pre-authorization for Mr. Burd to have a surgical consult with Dr. Raiser. (SUF at ¶ 31.) On July 22, 2015, Mr. Burd was scheduled for a follow-up appointment at the MSP Infirmary regarding his gallbaldder, but he did not show up. (SUF at ¶ 32.)

         On August 6, 2015, Mr. Burd had an emergency nursing evaluation for back pain after he reported “dead lifting 700 pounds.” Mr. Burd was referred to Dr. Piranian, who discussed back exercises with Mr. Burd and told him to keep moving. Dr. Piranian also prescribed five-day prescriptions of Prednisone, Robaxin, and Tramadol (Ultram) for Mr. Burd. Mr. Burd was evaluated again by nursing staff on August 16, 2015, instructed on exercises and proper lifting techniques, given Tylenol and ibuprofen for pain, and referred to a provider. (SUF at ¶ 33.)

         On August 20, 2015, Mr. Burd saw Jodi Cozby, FNPC, for complaints of pain in his back and leg after “dead lifting 270#.” Cozby prescribed a 15-day course of Robaxin to address Mr. Burd's pain. However, the Robaxin was apparently not immediately ordered for Mr. Burd. (SUF at ¶ 34.) On August 26, 2015, Mr. Burd kited to inquire about his prescription for Robaxin. Staff replied that no additional orders for prescriptions were on file. (SUF at ¶ 35.) On August 28, 2015, Mr. Burd kited Cozby, stating that “my musole [sic] relaxors [sic] are not working, & I'm still in pain, because the nurses refuse to give me the medication that you prescribed me.” Staff replied that his prescriptions for Tramadol (Ultram), Robaxin, and Prednisone had ended on August 10, 2015. The August 28 kite was forwarded to Cozby, who ordered the Robaxin she had prescribed for Mr. Burd on August 20, 2014. (SUF at ¶ 36.)

         Mr. Burd kited twice on August 30, 2015, complaining that his mediation was not working, and staff replied that he was scheduled to see a provider. (SUF at ¶ 37.) On September 2, 2015, Mr. Burd was scheduled to see Dr. Kohut after he kited complaining about pain ...

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