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Biederman v. Assistant Warden Deborah Powell

United States District Court, D. Montana, Great Falls Division

May 16, 2019




         Pending before the Court are Defendants' Motions for Summary Judgment (Docs. 32, 61, 65) and Plaintiff Donald Biederman's Motions for Reconsideration (Docs. 82, 83). Mr. Biederman, a pro se prisoner, filed a Complaint on January 31, 2018 alleging Defendants failed to provide him with adequate medical care during his incarceration at Crossroads Correctional Center in violation of Montana Code Ann. § 45-5-204 (a criminal code statute) and the Eighth Amendment. (Complaint, Doc. 2.) Mr. Biederman alleges Defendants failed to provide him with medical care for his chronic knee, back, and hip pain and for his Hepatitis-C. He also alleges the medications Defendants provided him could damage his liver and “maybe kidneys.” (Complaint, Doc. 2 at 8.)

         Having considered the parties' arguments and submission, Defendants have established there is no genuine dispute as to any material fact regarding the merits of Mr. Biederman's claims. Accordingly, Defendants' motions for summary judgment should be granted on the merits and this matter should be dismissed.[1]

         Mr. Biederman's motions for reconsideration and the documents sought therein do not affect the Court's analysis on the motions for summary judgment. The motions for reconsideration will be denied as moot.


         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), admissions, 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. “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).

         By notices provided on September 28, 2018 (Doc. 35) and January 18, 2019 (Docs. 64, 69), Mr. Biederman was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).


         Mr. Biederman was incarcerated at Crossroads Correctional Center in Shelby, Montana between July 12, 2017 and January 18, 2019. (CoreCivic Defendants' Statement of Undisputed Facts, Doc. 67 (hereinafter “SUF”) at ¶ 1; Notice of Change of Address, Doc. 72.) Mr. Biederman had an initial intake physical at Crossroads on July 18, 2017. He reported a past medical history of Hepatitis C, hypertension, chronic back pain, and pelvic pain; a 1990 motorcycle collision that resulted in multiple pelvic fractures; and a past surgical history of cholecystectomy and a chest tube thoracostomy. He also reported a social history of a half pack per day tobacco for 40 years, he described daily alcohol use until he feels no pain, and illicit intravenous drug use of methamphetamine. Mr. Biederman was placed in the chronic care clinic upon arrival. He was scheduled for and provided chronic care visits at least twice yearly. (SUF at ¶ 13.) The medical records filed by Defendants indicate Mr. Biederman had chronic care visits on August 7, 2017, October 25, 2017, January 22, 2018, April 13, 2018, and October 5, 2018. (Medical Records, Doc. 68-1 at 66-90.)

         According to Defendant Molnar, Mr. Biederman has no symptoms or diagnoses of any kidney or liver condition. (SUF at ¶ 14.) Although Mr. Biederman has hypertension, it was controlled with a goal of less than 140/80. His blood pressure medication while at Crossroads was Hydrochlorathizide 25 mg daily and Metoprolol 50 mg twice daily.

         On August 29, 2018, Mr. Biederman was seen and evaluated by a cardiologist, Dr. Bansal, at Benefis Heart and Vascular Clinic for evaluation of a heart murmur and chest pains. (Medical Records, Doc. 68-1 at 129-133.) Dr. Bansal recommended a 2D-Echocardiogram. He felt Mr. Biederman's chest wall pain was atypical but did not deem it necessary to pursue a noninvasive ischemic work up. An echocardiogram was done which showed a normal ejection fraction, negative for valvular disease, and a possible bicuspid aortic valve. Mr. Biederman was referred back to Dr. Bansal to review of the echocardiogram results and to discuss and develop a plan of care. (SUF at ¶ 15.)

         Mr. Biederman's Hepatitis C was monitored while he was at Crossroads with liver function studies and fibrosis 4 scoring at least every six months. The Montana Department of Corrections (MDOC) follows Montana Medicare guidelines for hepatitis treatment. Currently a patient must have a fibrosis 4 score greater than 1.45 to be considered for treatment. Mr. Biederman was consistently less than 1.45 while at Crossroads. In April ...

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