United States v. Loera

• Decision Date: 22 June 2017
• Docket Number: No. CR 13-1876 JB,CR 13-1876 JB
• Parties: UNITED STATES OF AMERICA Plaintiff, v. JASON LOERA, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA Plaintiff, v. JASON LOERA, Defendant.

No. CR 13-1876 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 22, 2017

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Opposed Motion Requesting Medical Services and Reconsideration of Conditions of Detention, filed January 10, 2017 (Doc. 163)("Motion"). The Court held an evidentiary hearing on April 28, 2017. The primary issues are: (i) whether, under 18 U.S.C. § 3145(c), "exceptional reasons" permit the Court to release Defendant Jason Loera from detention at Cibola County Detention Center pending sentencing so that Loera can undergo ileostomy reversal surgery; (ii) whether the Court should demand that the United States Marshals Service provide Loera with an ileostomy reversal surgery while Loera is in the United States Marshals Service's custody; (iii) whether, in a motion to reconsider Loera's detention made under 18 U.S.C. § 3145, Loera may allege a constitutional claim for deliberate indifference in violation of the Eighth Amendment to the Constitution of the United States of America; and (iv) whether, while in the United States Marshals Service's custody, Loera has suffered deliberate indifference in violation of the Eighth Amendment, because either the United States Marshals Service or Cibola County Detention Center has not provided Loera with necessary care for his ileostomy. The Court concludes: (i) under 18 U.S.C. § 3145(c), "exceptional reasons" do not exist which would warrant the Court releasing Loera from detention at Cibola County Detention Center pending sentencing; (ii) the United States Marshals Service should not provide Loera with an ileostomy reversal surgery while Loera is in its custody; (iii) Loera may not allege a constitutional claim of deliberate indifference in a motion brought under 18 U.S.C. § 3145; and (iv), even if Loera has alleged his constitutional claim through the proper procedural vehicle, Loera did not suffer deliberate indifference in violation of the Eighth Amendment. Accordingly, the Court will deny the Motion.

FACTUAL BACKGROUND

In United States v. Loera, 59 F. Supp. 3d 1089, Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)(D.N.M. 2014)(Browning, J.)("Motion to Suppress MOO"), the Court made one-hundred and twenty findings of fact. See 59 F. Supp. at 1096-1108, Motion to Suppress MOO at 5-25. The Court incorporates those findings of fact herein by reference and does not repeat them. The Court will find and state only some additional facts that are needed to evaluate the Motion.

1. Loera has been in the United States Marshal's Service's custody since September, 2016. See Transcript of Hearing at 70:10 (taken April 28, 2017)(Wolf)("Tr.").¹

2. Cibola County Detention Center houses Loera. See Tr. at 11:1 (Lucero).

3. Cibola County Detention Center has "a contract with the U.S. Marshal's Service and . . . accept[s] whatever detainees they send . . . ." Tr. at 7:17-18 (Lucero).

4. Dr. Steve Wolf is a career United States Public Health Service physician and has worked in that capacity for twenty-five years. See Tr. at 52:10-12 (Wolf).

5. The United States Public Health Service is "responsible for prisoner healthcare while prisoners are in their federal proceedings." Tr. at 53:17-18 (Wolf).

6. Since 2007, Dr. Wolf has been assigned to the United States Marshals Service as the medical director for prisoner operations. See Tr. at 52:24-25 (Wolf).

7. When making decisions about care, the United States Public Health Service "look[s] at how long an individual will be in custody." Tr. at 53:14-15 (Wolf)(alteration added).

8. "[A] surgery that has more risk of complications is a surgery that [the United States Public Health Service] would generally defer until an individual gets to a long-term destination." Tr. at 55:25-56:1 (Wolf)(alterations added).

9. "[A] lot of [prisoner] requests are best addressed in a long-term setting." Tr. at 53:24-25 (Wolf)(alterations added).

10. The standard of care that the United States Public Health Service provides "is basically the community standard of care." Tr. at 55:4-19 (Wolf).

11. The United States Public Health Service receives "a lot of requests from jails all over the country and many of the requests would be for things that might be considered desirable but aren't medically necessary." Tr. at 55:4-19 (Wolf).

12. When

an individual may be leaving [the United States Marshals Service's] custody very shortly[,] . . . something [i.e., a medical procedure] that [the United States Public Health Service] might normally approve, [the United States Public Health Service] would not approve, because of the fact that [the individual is] being released from custody, or they're being transferred to their long-term institution where it would be more appropriate to do that [i.e., to carry out the procedure].

Tr. at 55:4-19 (Wolf)(alterations added).

13. Ileostomy procedures² "are not typically emergency procedures or even urgent procedures . . . ." Tr. at 57:17-19 (Wolf).

14. Since August 2013, Michelle Lucero has worked as a Physician Assistant at the Cibola County Detention Center. See Tr. at 4:6-10 (Lucero).

15. Lucero is the primary care provider at Cibola County Detention Center. See Tr. at 6:7 (Lucero).

16. Lucero must write prescriptions under a supervising physician's authority. See Tr. at 27:16-23 (Walz, Lucero).

17. Lucero is familiar with Loera. See Tr. at 8:10 (Lucero).

18. Upon Loera's arrival at Cibola County Detention Center, Lucero knew that Loera had an ileostomy and that "there is maintenance that has to be done for a condition like that." Tr. at 11:1 (Lucero).

19. Inmates at the Cibola County Detention Center infrequently have ileostomy bags. See Tr. at 31:17-23 (Walz, Lucero).

20. Although Lucero generally does not treat inmates with ileostomy bags, she is "not incapable of treating it." Tr. at 32:3 (Lucero).

21. After Lucero's initial evaluation of Loera, Lucero attempted to obtain Loera's medical records, because Loera had disclosed to Lucero "that the plan was to eventually do the [ileostomy] take down after a certain amount of time." Tr. at 11:23 (Lucero)(alteration added).

22. While housed at the Cibola County Detention Center, Loera made numerous requests to see medical staff. See Tr. at 17:13 (Lucero).

23. Lucero saw Loera in clinic on December 8, 2016, because Loera had complained of: (i) a leaking ileostomy bag; (ii) the need for a replacement bag, and (iii) the need of a sanitary location to change the ileostomy bag. See Tr. at 17:17-19 (Lucero).

24. On December 12, 2017, a nurse saw Loera, and provided him with a new ileostomy bag and "an antifungal powder that he typically uses with the bag to adhere it [to his body] to help minimize the risk of infection or irritation." Tr. at 17:22-25 (Lucero)(alterations added).

25. Changing of an ileostomy bag does not require a sterile procedure. See Tr. at 18:19-19:2 (Lucero)("[I]t's not a sterile procedure. It's not -- when you go into surgery, you're having to do a sterile procedure. This isn't anything that's sterile. You should be clean about it, you should wash your hands before and after, but there's nothing markedly beyond that that needs to be executed."); id. at 64:17-18 (Wolf)(stating that caring for an ileostomy is "not sterile procedure").

26. Patients frequently care for and change their ileostomy bags at home, "keeping it clean, wiping it, using soap and water, keeping the site clean." Tr. at 64:17-18 (Wolf).

27. Loera expressed a primary concern "for nutritional compromise and electrolyte[³] balance." Tr. at 19:24-15 (Lucero).

28. Lucero assured Loera that "his B12 and folate[⁴] were normal, that his iron levels were normal . . . ." Tr. at 20:4-5 (Lucero).

29. Based on Loera's labs, there "wasn't any sign that he needed to have any type of additional supplementation other than the dietary meals that have been provided from the Center." Tr. at 21:3-6 (Lucero).

30. Loera "stressed that he did want to have [the ileostomy take-down] procedure done . . . [and voiced] his other concerns . . . for nutritional deficiency and [the] need[] to have Ensure supplement drinks, [and Gatorade] for electrolyte imbalances . . . ." Tr. at 12:11-15 (Lucero)(alterations added).

31. Lucero "didn't feel" that Loera's first request for surgery was appropriate. Tr. at 38:21-39:2 (Lucero).

32. Lucero told Loera that the ileostomy take down "would probably be considered an elective procedure" and that she could not "approve that kind of surgical procedure," but would have "to submit the request through the U.S. Marshal service." Tr. at 12:22-25 (Lucero).

33. Lucero sent Loera's request for an ileostomy take-down procedure to the United States Marshal's Service, but indicated that she "did feel that it was elective because he was stable and this was his request." Tr. at 13:22-24 (Lucero).

34. The United States Public Health Service received Loera's request for a surgical consult regarding an ileostomy take-down procedure "in late December or early January 2017 . . . ." Tr. at 56:13-57:2 (Wolf).

35. The United States Public Health Service denied Loera's request, because the agency "determined that it was not medically necessary to do this while in the short term custody of the U.S. Marshals." Tr. at 57:5-13 (Wolf).

36. Loera made complaints related to his abdominal pain that Lucero "couldn't prove or disprove." Tr. at 14:1 (Lucero).

37. Lucero does not know the etiology of Loera's abdominal pain, because the appropriate radiology studies have not been performed. See Tr. at 39:4-7 (Walz, Lucero).

38. "[A] lot of [Loera's] discomfort was . . . [the result of] a lot of scar tissue from his previous surgeries," and "that's a very difficult thing to address because if you were to go back in and cut out that scare tissue, per se, you're just going to develop more because that's part of the healing process, is developing a scar." Tr. at 16:3-6 (Lucero)(alterations added).

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