McGiboney v. Corizon
| Decision Date | 11 July 2019 |
| Docket Number | Case No. 1:18-cv-00529-DCN |
| Parties | JOSHUA McGIBONEY, Plaintiff, v. CORIZON; IDAHO DEPARTMENT OF CORRECTIONS; IDAHO BOARD OF CORRECTIONS; KEITH YORDY; REBEKAH HAGGARD; JEFF ZMUDA; HENRY ATENCIO; DEBBIE FIELD; CINDY WILSON; DAVID McCLUSKY; RONA SIEGERT; COLIN BROWN; MURRAY YOUNG; RON SUTHERLIN; MATTHEW SWEETZER; POVAR TRIPPER; AARON HOFER; and DOES 1-X, Defendants. |
| Court | U.S. District Court — District of Idaho |
Before the Court is Plaintiff Joshua McGiboney's Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 10); Motion to Exceed Page Limits (Dkt. 34); and Motion to Appoint Counsel (Dkt. 38). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons stated below, the Court will GRANT in PART and DENY in PART Plaintiff's request for injunctive relief, GRANT Plaintiff's request to exceed page limits, and DENY Plaintiff's motion for appointment of counsel.
Plaintiff Joshua McGiboney (hereinafter "McGiboney") is an inmate incarcerated by the Idaho Department of Correction ("IDOC") at the Idaho State Correctional Institution ("ISCI"). McGiboney has a serious medical condition called arteriovenous malformation ("AVM"). Dkt. 31-3, at 2. In general, AVM is an "abnormal tangle of blood vessels connecting arteries and veins, which disrupts normal blood flow and oxygen circulation." Dkt. 31-2, at ¶ 6. McGiboney suffers from severe pain, loss of strength and mobility, loss of bowel and bladder functions, paralysis that generally confines him to a wheelchair, and other symptoms as a result of his AVM.
In 2011, while incarcerated, McGiboney experienced a sudden onset of midthoracic back pain. Plaintiff was treated at St. Luke's Boise Medical Center and was later diagnosed with a hemorrhage in his spinal cord as a result of his AVM. The neurosurgeon who treated Plaintiff, Dr. Ronald Jutzy, noted surgery was not an option due to risk of permanent stroke to Plaintiff's spinal cord. Dr. Jutzy later reiterated that there was no local surgical option, and that Plaintiff was at a very high risk for paraplegia if he should proceed with elective surgery. Dr. Jutzy also stated his only recommendation "would be to have McGiboney's case reviewed by Dr. Robert Spetzler at Barrow's Neurological Institute in Phoenix, Arizona." Id. at ¶ 7.
After the 2011 event, McGiboney filed his first Eighth Amendment claim for deliberate indifference under 42 U.S.C. § 1983 against his treating physician at the time, Dr. David Agler, and Corrections Corporation of America ("CCA").1 McGiboney v. Agler, 1:13-cv-00214-REB.2 McGiboney's first suit involved his treatment between May 12, 2011, and May 23, 2011, which was when Dr. Agler first understood that McGiboney had been previously diagnosed with AVM, and the period running from approximately April through October of 2012, when McGiboney's condition began to worsen after initial improvement. Id., Dkt. 59, at 2. Following a trial held on November 7 through November 10, 2016, the jury found Dr. Agler was deliberately indifferent to McGiboney during the time period between May 12, 2011, through May 23, 2011, that McGiboney was harmed as a result, and awarded McGiboney $11,000.00 in compensatory damages. Id., Dkt. 140.3 The jury also awarded McGiboney $25,000.00 in punitive damages. Id.
McGiboney, proceeding pro se and in forma pauperis, filed the instant action, his second suit asserting claims based on 42 U.S.C. § 1983, on November 20, 2018. McGiboney's complaint was screened pursuant to 28 U.S.C. 1915 and 1915A, and he was allowed to proceed on his Eighth Amendment and related state law claims against Defendants Corizon and Dr. Rebekah Haggard (for all types of requested relief), Defendant Warden Alberto Ramirez4 for injunctive relief only, and on his retaliation claim against Defendant Jared Povar.5 Dkt. 7, at 31-32. All other claims against all other Defendants were dismissed. McGiboney filed a Motion for Temporary Restraining Order and Preliminary Injunction on March 22, 2019. Dkt. 10.
McGiboney's Eighth Amendment claims involve the medical care, or lack thereof, McGiboney has received for his AVM since January 7, 2016.6 Dkt. 2, at ¶ 23. Due to McGiboney's worsening symptoms, a nondefendant medical provider working for Corizon— the private entity currently providing medical care to Idaho inmates under contract with the IDOC—told McGiboney on January 7, 2016, that he would discuss the possibility of an MRI with then-Regional Medical Director Dr. Murray Young.7 Id.
On March 2, 2016, McGiboney was transferred from the Idaho State Correctional Center to the ISCI. McGiboney immediately submitted a health service request for the MRI and a visit with Dr. Young to discuss additional treatment options. Another provider also requested an MRI for McGiboney on April 25, 2016. Four days later, McGiboney received notice that Dr. Young had denied the request. The next time McGiboney attempted to contact Dr. Young, in July of 2016, McGiboney was told Dr. Young was no longer Corizon's Regional Medical Director. Defendant Dr. Haggard replaced Dr. Young as the Corizon Regional Medical Director for IDOC in the summer of 2016. Dkt. 31-2, at ¶ 2.
In September 2016—nine months after the initial recommendation for an MRI—Dr. Matthew Sweetzer examined McGiboney and determined he needed "imaging to see [the] extent of [his] condition & [a] neuro consult[.]" Dkt. 2, at ¶ 33. A nondefendant nurse then pulled McGiboney's wheelchair out of Dr. Sweetzer's office, stating that McGiboney's time was up. Id. Three weeks later, McGiboney was informed that Dr. Sweetzer no longer worked at the prison and that McGiboney must start over and re-submit health service requests.
McGiboney eventually received an ultrasound on his left leg on October 24, 2016, at St. Luke's hospital. The St. Luke's doctor, Dr. Reada, determined that additional imaging was needed. Id. at 6. At McGiboney's next appointment, with Defendant Povar in December 2016, Defendant Povar told McGiboney that an MRI had been ordered and that McGiboney would be prescribed medication. Over three months later, McGiboney had still not had the MRI or been prescribed medication. At that point, another provider confirmed that McGiboney would be given an MRI and a follow-up with Dr. Ronald Sutherlin. Id. McGiboney was not given the MRI, nor was he evaluated by Dr. Sutherlin.8
On April 13, 2017, Defendant Povar informed McGiboney that Defendant Haggard had once again denied Povar's request for an MRI, despite Dr. Reada's October 2016 recommendation for additional imaging. Defendant Haggard contends the MRI request was initially denied because McGiboney "had reported neuro function which is not consistent with AVM progression." Dkt. 31-2, at ¶ 10. However, Defendant Haggard agreed an MRI was necessary by October 2017, when McGiboney experienced worsening symptoms. Id.
McGiboney finally received an MRI in November, 2017, which "revealed progression of distal spinal cord syrinx below T7-T11 and L3-4 advanced degenerative disc disease with severe right foraminal stenosis." Id. at ¶ 11. Based on the new MRI findings, Neurosurgeon Dr. Paul Montalbano recommended evaluation by a vascular neurosurgeon specialist, Dr. Ondrej Choutka. Id. While waiting for his appointment with Dr. Choutka, McGiboney sustained bleeding pressure sores because the seat of his wheelchair was "sagging down onto metal bars" and "busting [his] skin open." Dkt. 2, at ¶ 52. McGiboney claims that "IDOC's restricted policies forced him to sit in blood & urine with open wounds & refus[ed] him access to showers all night & no laundry all week." Id. McGiboney requested a new wheelchair. Although the request was initially denied, McGiboney received a new wheelchair on March 27, 2018. McGiboney contends that his new chair is too big, and that he is "unable to effectively propel" himself with it. Id. at ¶ 69. Defendants do not respond to McGiboney's claims regarding the injuries his first wheelchair caused or his need for a new wheelchair, nor his claims that he was denied access to showers and laundry after his pressure sores ruptured.
Three months after Dr. Montalbano recommended McGiboney evaluation by a vascular neurosurgeon, McGiboney was seen by Dr. Choutka on February 1, 2018. Dr. Choutka noted baseline weakness in McGiboney's left leg but worsening symptoms in his right leg. Dkt. 31-2, at ¶ 12. Dr. Choutka recommended a spinal angiogram, which was performed. Id. On February 27, 2018, McGiboney returned to Dr. Choutka for a follow-up visit. Id. The two discussed various treatment options, and ultimately decided to proceed with endovascular treatment of McGiboney's AVM, "followed by posterior thoracic hemilaminectomy and placement of syringo-subarchnoid shunt, combined with foraminotomy if significant L3 nerve root compression exist[ed]." Id.
McGiboney had the aforementioned surgeries in March, 2018, during which Dr. Dallas Peck embolized two aneurysms and Dr. Choutka performed a foraminotomy for nerve root decompression and inserted a shunt without complication. Id. at ¶ 13. Because McGiboney was unable to urinate following his surgeries, he was prescribed Urecholine; however, Corizon failed to provide McGiboney with this medication for two months. Dkt. 2, at ¶¶ 65, 68, 73. By the time McGiboney finally received Urecholine on May 19, 2018, "it was too late to stimulate [his] bladder to normal function," and McGiboney must now "use catheters for the rest of [his] life" in order to urinate. Id.; see also Dkt. 36- 4, at 15, ¶ 13. Defendants do not respond to McGiboney's allegations regarding their failure...
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