TIMOTHY D. DEGIUSTI, District Judge.
This matter comes before the Court for review of the Supplemental Report and Recommendation [Doc. No. 62], issued by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends that summary judgment be granted to Defendants Ray Larimer and Fred Sanders, D.O. on Plaintiff Richard Dopp's remaining claim under 42 U.S.C. § 1983 that he was denied medical care for a serious spinal condition. Plaintiff, who appears pro se, has filed a timely written objection [Doc. No. 63]. He has also filed two motions [Doc. Nos. 64 & 65], seeking to amend his prior response to Defendants' summary judgment motion and to supplement the record with additional documentary evidence to support his claim. The Court must make a de novo determination of the portions of the Report to which a specific objection is made, and may accept, reject, or modify the recommended decision in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff's confinement as a state prisoner in custody of the Oklahoma Department of Corrections ("ODOC") while he was housed at the Davis Correctional Facility ("DCF"), a private prison in Holdenville, Oklahoma.
Following the Court's prior ruling and re-referral of the case to Judge Purcell, Defendants Larimer and Sanders moved for summary judgment based on their affidavits and a Martinez
Within the time period set by Judge Purcell, Plaintiff has filed a written Objection [Doc. No. 63] and a Motion and Brief Requesting to File an Amended/Supplemental Response to Defendant's Motion for Summary Judgment [Doc. No. 64].
Upon de novo consideration of the issues raised by Plaintiff's Objection, the Court concurs in Judge Purcell's conclusion that Defendants Larimer and Sanders are entitled to summary judgment on the § 1983 claim asserted against them in Count II of the Complaint. Liberally construing Plaintiff's Objection, the Court finds the following issues presented by timely and specific objection to the Supplemental Report: 1) Whether Judge Purcell impermissibly acts as an advocate for Defendants by treating as undisputed additional facts that were not stated in their summary judgment brief and by rejecting Plaintiff's attempts to dispute some facts; 2) Whether Judge Purcell mistakenly finds that no physician had recommended surgical treatment of Plaintiff's cervical spine condition; 3) Whether Judge Purcell erroneously concludes that the undisputed facts do not establish the subjective element of Plaintiff's § 1983 claim where Defendants allowed Plaintiff to wait 17 months from the time of the initial referral to OU Medical Center in February 2014 until he was finally seen in July 2015 (shortly after leaving DCF), despite his persistent complaints of severe pain and a worsening condition. As to all other matters addressed by Judge Purcell and not specifically challenged by Plaintiff in his Objection, further review is waived under the court of appeals' well-established "firm waiver" rule. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
Plaintiff complains that Judge Purcell improperly includes in his statement of undisputed facts, additional facts that were not stated in Defendants' brief.
Plaintiff also challenges Judge Purcell's finding that Plaintiff failed to controvert material facts and treating as undisputed facts that Plaintiff opposed in his response brief. However, "[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . ." See Fed. R. Civ. P. 56(c)(1)(B); see also Adler, 144 F.3d at 671-72 (to show a genuine dispute of material facts, "the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits;" a plaintiff may not rely on conclusory allegations of a complaint, even if it is verified). If an affidavit or declaration is used, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "[C]onclusory and self-serving affidavits are not sufficient." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). The Court's review of Plaintiff's summary judgment response shows the correctness of Judge Purcell's finding that matters stated by Plaintiff lacked evidentiary support or were supported only by a speculative statement of Plaintiff's opinion or allegation.
Plaintiff objects to Judge Purcell's conclusion that "no physician has recommended that Plaintiff should undergo surgery to treat his cervical foraminal stenosis (narrowing of the cervical disc space)." See Suppl. R&R [Doc No. 62] at 16. To support his objection, Plaintiff refers to materials that consist of an unsigned, handwritten note from an unidentified author associated with "North American Spine" and a letter from a "Spine Care Representative" with the "Laser Spine Institute." See Pl.'s Obj. [Doc. No. 63] at 2 (citing Pl.'s Resp. Br. [Doc. No. 59] at 9-10 & Exs. 15-19 [Doc. Nos. 59-13 to 59-17). These documents do not reflect a physician's recommendation that Plaintiff should receive surgical treatment of his spinal condition, and are not a proper form of summary judgment evidence. Further, these papers apparently were obtained by Plaintiff after he left DCF and, therefore, do not suggest Defendants denied Plaintiff a recommended surgical treatment for his condition.
A § 1983 claim of deliberate indifference to an inmate's serious medical need has objective and subjective components. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Judge Purcell finds "no material dispute that Plaintiff has shown the existence of a serious medical need," that is, one "sufficiently serious" to satisfy the objective component of his claim. See Suppl. R&R [Doc. No. 62] at 5 (citing Sealock, 218 F.3d at 1209). The question presented by Defendants' Motion is whether Plaintiff can satisfy the subjective component by showing Defendants acted with deliberate indifference to his need, that they "kn[ew] of but disregard[ed] an excessive risk to [Plaintiff's] health or safety." See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sealock, 218 F.3d at 1209.
Upon de novo consideration of this issue, the Court concurs in Judge Purcell's conclusion that Plaintiff has failed to demonstrate a genuine dispute of material fact regarding Defendants' deliberate indifference to Plaintiff's need for further diagnostic testing and examination by a specialist who could better evaluate Plaintiff's condition and determine his need for surgical treatment. The deliberate indifference standard is not satisfied "where a doctor merely exercises his considered medical judgment," such as deciding "whether to consult a specialist or undertake additional medical testing." Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). The standard is satisfied "where the need for additional treatment or referral to a medical specialist is obvious" but ignored, such as where "a medical professional recognizes an inability to treat the patient due to the seriousness of the condition and his corresponding lack of expertise but nevertheless declines or unnecessarily delays referral." Id. "A prison medical professional who serves `solely as a gatekeeper for other medical personnel capable of treating the condition' may be held liable under the deliberate indifference standard if she `delays or refuses to fulfill that gatekeeper role.'" Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock, 218 F.3d at 1211).
In this case, the undisputed facts show that Plaintiff received treatment for his chronic headaches and neck pain with medication and diagnostic testing performed at DCF and a hospital in Holdenville. Some tests were performed at the direction of specialists at OU Medical Center to whom Plaintiff was referred for a neurosurgical appointment and consultation. It is also undisputed that Dr. Sanders' referral was made in February 2014 by submitting a request in the usual manner and that OU Medical Center scheduled Plaintiff for an appointment in July 2014 but then rescheduled it three times, resulting in the referral not being accomplished until July 2015. Thus, Plaintiff waited approximately 17 months for the appointment to occur, measured from the time Dr. Sanders decided that a neurosurgical referral should be made to the time Plaintiff was seen by specialist. It is undisputed, however, that the timing of the appointment and the priority of Plaintiff's need was not determined by Defendants but by OU Medical Center, and the delay in treatment by a specialist was not within Defendants' control.
The question thus becomes whether Defendants should have formulated an alternative plan at some point, to alleviate an unmet need due to the length of the delay. The medical records show that during the delay Plaintiff continued to complain of pain and to seek medical services, and that additional testing showed a progressive condition. The records also show, however, that Plaintiff continued to receive treatment for his pain complaints, including additional medical services and prescription medications. Although Plaintiff's condition is degenerative and his spinal stenosis increased during the delay, Dr. Sanders has stated that he never found there to be an emergency or an acute need for surgical treatment. Plaintiff merely disagrees with this assessment; he believes Defendants should have referred him to a private facility that could have treated him sooner or, perhaps, pushed for an earlier appointment at OU Medical Center. Viewing the facts shown by the record in the light most favorable to Plaintiff, the Court finds that Plaintiff has not demonstrated a genuine dispute of material fact regarding Defendants' subjective, deliberate indifference to Plaintiff's spinal condition.
For these reasons, the Court finds that Dr. Sanders and Mr. Larimer are entitled to summary judgment on the § 1983 claim asserted against them in Count II of the Complaint.
IT IS THEREFORE ORDERED that the Supplemental Report and Recommendation [Doc. No. 62] is ADOPTED. Defendants' Motion for Summary Judgment [Doc. No. 53] is GRANTED. A final judgment as to all claims and defendants shall be entered.
IT IS FURTHER ORDERED that Plaintiff's Motion Requesting to File an Amended/Supplemental Response to Defendant's Motion for Summary Judgment [Doc. No. 64] and Plaintiff's Second Motion to Supplement [Doc. No. 65] are DENIED.
IT IS SO ORDERED.
