United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge.
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.
Kohut's Motion for Summary Judgment
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).
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.
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).
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.)
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.
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.
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.
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).
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 ...