United States District Court, D. North Dakota
Isaac T.L. Gould, Sr., Plaintiff,
Williams County, Sheriff Scott Busching, and Lieutenant Royce Crone, Defendants.
REPORT AND RECOMMENDATION
CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is a Motion for Summary Judgment (Doc. No. 64) filed by defendants Williams County, Sheriff Scott Busching, and Lt. Royce Crone. The motion has been referred to the undersigned for preliminary consideration. For the reasons set forth below, it is recommended that defendants' motion be granted and plaintiff's complaint be dismissed with prejudice.
A. Procedural background
Plaintiff, Isaac Gould, Sr. ("Gould"), is currently an inmate at the North Dakota State Penitentiary ("NDSP") in Bismarck, North Dakota. At the time Gould initiated this action on February 18, 2014, however, he was a pretrial detainee at the Williams County Correctional Center ("WCCC") in Williston, North Dakota.
Gould initiated this action pursuant to 42 U.S.C. § 1983 by submitting a pro se complaint alleging claims of federal constitutional violations against the State of North Dakota, the WCCC and Fairlight Medical Center in Williston. (Doc. No. 6). Later, following an initial screening in which it was concluded that Gould should not be permitted to proceed as to the parties initially named, Gould filed an Amended Complaint naming new parties. (Doc. No. 12). The court then conducted a screening of the Amended Complaint and Gould was permitted to proceed with his Eighth Amendment claims of deliberate indifference with respect to his medical treatment as to the current defendants Williams County (in place of the WCCC because it is not a suable entity) and Sheriff Busching and Lt. Crone, both in their official and individual capacities. (Doc. No. 14).
One of Gould's complaints is that defendants violated his Eighth Amendment rights by not immediately providing him with surgery on his foot. On October 2, 2014, Gould filed a motion requesting a preliminary injunction directing defendants to immediately provide him with the surgery. (Doc. Nos. 41-42). On December 9, 2014, the undersigned issued a Report and Recommendation that the request for a preliminary injunction be denied because Gould had failed to demonstrate an immediate need for the surgery. (Doc. No. 55). The court adopted the Report and Recommendation on January 7, 2015, and denied the request for the preliminary injunction. (Doc. No. 56).
Defendants subsequently filed a motion for summary judgment. (Doc. No. 64). After being granted an extension, Gould filed a response to which defendants have replied. (Doc. Nos. 74 & 75). In addition, since the motion for summary judgment became ripe, Gould filed a request and amended request for a subpoena to the NDSP for medical records generated there that he claims will help substantiate why the surgery was needed on his foot during the time period he was held at the WCCC. (Doc. Nos. 77 & 79).
B. Factual background
Gould complains in this action that defendants violated his constitutional rights by denying him adequate medical care with respect to a finger on his right hand and to his right foot. Of the two, Gould's problem with his foot is more significant. In approximately 1996, Gould suffered a fracture of the 2nd metatarsal bone in his right foot. The fracture went untreated surgically until either 1999 or 2000 when surgery was performed. A second surgery was performed in 2006 or 2007, but there was a nonunion of the fracture according to a medical report discussed in detail later. When Gould was arrested and placed in custody at the WCCC on August 8, 2013, the fracture site was being held in alignment by a plate and four screws. (Doc. No. 66-2).
The record contains an early nursing note dated September 3, 2013, in which Gould presented with a number of pain complaints, including hip pain, pain in his lower left rib cage, and right foot pain. The examination conducted at that time revealed, among other things, that plaintiff walked with a normal gait, that he had full range of motion in his extremities, and no numbness or tingling in his extremities. Gould was approved for pain relief medication and was referred to an MD for further evaluation and treatment. (Doc. No. 53-3).
The next reference in the record here to any finger or foot complaints by Gould is a request for medical care on February 25, 2014. Gould made the request using the WCCC's standard request for medical care form in which he stated that he had "pain in both [right foot, and third digit on right hand] quite bad." (Doc. No. 12-5). In response, Gould was seen in the jail by a medical professional on March 4, 2014. The notes from this examination reference the complaint of right foot pain and the history of the prior fracture with a plate in place. In terms of treatment, there is reference made to followup with Dr. Slann (a local podiatrist whom Gould had seen earlier) and a decision to continue anti-inflammatory pain medication. (Doc. No. 12-5).
The same day Gould was seen for the complaints he made in his medical care request of February 25, 2015, Gould submitted another medical request complaining again about his foot but more focused this time on the third digit of his right hand. In that request dated March 4, 2014, Gould stated that, in both his foot and finger, he was "having extreme swelling/burning sensations where both bones are broken and unattended. These need tending too. The pain is getting more so too and nerves irritated more in other areas of right hand." Gould was again seen by a medical professional who noted, among other things, the history of "deformity" and prior "fracture" of right hand and ordered an appointment with Dr. Roxanne Keene, a local orthopedic surgeon, for evaluation and treatment of the finger. (Doc. No. 12-6).
Gould claims that he submitted another request for medical care dated April 11, 2014, in which he again complained about continuing pain in his foot and finger. At the bottom of the form, there purports to be a recommendation by the medical professional who saw Gould and stated that he be released for medical care for his foot and right hand. (Doc. No. 12-4). Defendants have disputed the authenticity of this document. But, whether authentic or not, it does not make a difference in terms of the outcome of this case.
It is undisputed that Gould saw Dr. Keene for his finger, although the record here does not reveal when this took place. Dr. Keene's recommendation for Gould's finger issues was physical therapy. (Doc. No. 12, p. 5). Defendants have also proffered evidence (which Gould has not objected to or disputed) that Lt. Crone discussed with Dr. Keene the difficulties of transporting Gould frequently for physical therapy and that Dr. Keene advised that the therapy did not need to be conducted by a physical therapist, that Gould could perform the exercises in his cell himself, and that Gould knew how to do them. (Doc. Nos. 67 & 74).
The next item of record evidence is a medical request submitted by Gould on June 16, 2014. Gould reported that "the pain in (R) foot from break area is moving/staying round first toe-nagging aching pain in ankle/calf" and the pain in his right foot is constant. He also reported pain in his lower back; left hip and knee; and complained that his third finger on his right hand was cramping. Gould was seen by a medical professional for these complaints on June 19, 2014. Gould requested at that time an appointment with Dr. Slann, a local podiatrist that Gould had been consulting with earlier, to see about the possibility of getting inserts for his shoes for comfort until progress was made on his surgery. The notes for Gould's June 19, 2014 examination have written next to the mention of an appointment with Dr. Slann the date of June 24, 2014 at 3:00 p.m. Defendants suggest this indicates Gould saw Dr. Slann at that point and that this was Lt. Crone's recollection. Gould has not disputed this. (Doc. Nos. 66-4, 67, & 74).
On July 15, 2014, Dr. Slann wrote a letter to Lt. Crone. Because Gould primarily relies upon this letter in his response to defendants' motion for summary judgment (Doc. No. 74), it is set forth in full as follows:
As we discussed I am writing in regard to my patient, Isaac T. L. Gould. I am writing to you to explain his medical requirements specifically on his right foot. I am a podiatrist and therefore any medical concerns that do not ...