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Burd v. Kohut

United States District Court, D. Montana, Helena Division

June 21, 2018



          Dana L. Christensen, Chief Judge.

         Three motions are pending before the Court: (1) Defendant Dr. Tristan Kohut's ("Dr. Kohut") Motion for Summary Judgment (Doc. 53); (2) Plaintiff Shane Burd's ("Burd") Motion for a Preliminary Injunction (Doc. 72); and (3) Burd's Motion to Cross-Move for Summary Judgment (Doc. 79). For the reasons explained below, the Court grants summary judgment in favor of Dr. Kohut and denies both of Burd's motions.

         I. Dr. Kohut's Motion for Summary Judgment

         On February 27, 2018 Magistrate Judge John T. Johnston entered his Findings and Recommendations, recommending summary judgment in Dr. Kohut's favor. (Doc. 70.) Burd timely objects and is therefore entitled to de novo review of those findings to which he specifically objects. 28 U.S.C. § 636(b)(1)(C). The Court reviews for clear error those findings and recommendations to which no party objects. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Am, 474 U.S. 140, 150 (1985). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). Notwithstanding the above, "[w]here a petitioner's objections constitute perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [complaint], the applicable portions of the findings and recommendations will be reviewed for clear error." Rosling v. Kirkegard, 2014 WL 693315, at *3 (D. Mont. Feb. 21, 2014) (citations omitted).

         Because the parties are familiar with the factual and procedural background provided in great detail in Judge Johnston's Findings and Recommendations it will only be restated here as necessary to understand the Court's order.

         Legal Standard

         "The court shall grant 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." Fed. R. Civ. P 56(a). The movant bears the initial burden of informing the 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, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). The movant's burden is satisfied when the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Where the moving party has met its initial burden, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (internal quotation marks omitted).


         Judge Johnston recommended dismissing Burd's Eighth Amendment claim, finding that that there was no evidence in the record to suggest that Dr. Kohut's actions amounted to "deliberate indifference." (Doc. 70 at 32.) To the extent that Burd's objections merely rehash arguments previously raised and considered by Judge Johnston, the Court will not conduct a de novo review of those arguments. However, the Court will review de novo Burd's legal and factual arguments. Burd argues: (1) that Lavender v. Lampert, 242 F.Supp.2d 821 (D. Or. 2002), and Rosen v. Chang, 811 F.Supp. 754 (D. R. I. 1993), provide precedent for this Court to find that Dr. Kohut acted with deliberate indifference (Doc. 77 at 1-2); and (2) that there is a genuine dispute of material fact. Specifically, Burd claims that Dr. Kohut's examinations and attentiveness to Burd's medical care is not as timely as Dr. Kohut claims, and that contrary to Dr. Kohut's assertion, Dr. Kohut treated Burd for a testicular lump. Lastly, Burd raises allegations of sexual abuse against Dr. Kohut. (Doc. 77.)

         To prevail in an Eighth Amendment claim for inadequate medical care, a plaintiff must show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference is a demanding standard and goes beyond negligence. Farmer v. Brennan, 511 U.S. 825, 835 (1994). It is established when a defendant subjectively "knows of and disregards an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). However, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Oritz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). "Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be demonstrated by the way in which prison officials provide medical care." Lavender, 242 F.Supp.2d at 842.

         Judge Johnston assumed-and this Court agrees-that Burd's medical needs are "serious." (Doc. 70 at 30.) Thus, the inquiry is limited to whether Dr. Kohut's acts or omissions indicate deliberate indifference.

         Burd cites to Lavender to support the proposition that deliberate indifference may be shown when "there is an ongoing pattern of ignoring and failing to timely respond, or to effectively manage [the] plaintiffs chronic pain." (Doc. 77 at 1 (citing id. at 843).) In Lavender, the inmate had "a spinal injury that cause[d] him to suffer from an inverted right foot, a clawing deformity of his right toes, and chronic pain." Id. at 842. The record revealed that the inmate consistently complained of debilitating pain and was often unable to walk, requiring a wheelchair. Id. at 830. Despite his chronic pain, the inmate often went days without any valid prescription for his pain management and his use of the wheelchair was restricted. Id. at 831. Once, his pain medication was revoked entirely and for no apparent reason. Id. at 847. Additionally, after being diagnosed, prison doctors were considerably delayed in getting the inmate appropriate orthopedic footwear, which resulted in an "ongoing injury to [his] toes, [and] refusal to render treatment for toe injuries." Id. at 843. The court concluded that this conduct was sufficient to raise a genuine issue of material fact. Id. at 825.

         In contrast, Burd's treatment history indicates that Burd has received regular, timely care focused both on responding to Burd's immediate pain and addressing its underlying causes. (See Doc. 70 at 5-28.) The medical records indicate that Burd's kites were timely answered, that he regularly met with members of the nursing staff, and was regularly recommended and received over-the-counter pain medication, and prescribed medication as needed. (Docs. 54-2 at 1-48; 54-3 at 1-52; 54-4 at 1-31.) As Burd's medical needs rose in severity, it was recognized-often resulting in an emergency consult with an onsite physician and occasionally Burd was transferred for outside consult. (Docs. 70 at 5; 54-2 at 17-18, 24-25, 34, 39-40, 45.) While Burd complains that he was denied medication that had been prescribed to him, the record indicates that Burd was denied Ultram only when his prescription expired. (Doc. 54-2 at 21, 23, 27.) Ultram is a controlled Class IV, narcotic-like medication and is not suitable for long-term use. (Doc. 70 at 18.) Burd's continued request for Ultram does not indicate that Dr. Kohut was "deliberately indifferent" to Burd's medical needs, but at most, indicates only "a difference of opinion between a prisoner-patient and prison medical authorities regarding treatment" which does not give rise to an Eighth Amendment claim. Franklin v. State of Or., State Welfare Z)/v., 662 F.2d 1337, 1344 (9th Cir. 1981).

         Burd's citation to Rosen is inapt. In Rosen an inmate died from peritonitis with septic shock after suffering from appendicitis for "at least two weeks before he died and more likely up to six weeks." Rosen, 811 F.Supp. at 758. In the weeks before his death, the inmate had gone to "sick call twice a day every single day and reported his symptoms and extreme stomach pain to the nurse on duty." Id. At the same time, the inmate constantly complained of the failure of medical staff to do anything to abate his pain. Id. The district ...

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