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Capello v. Sziebert

United States District Court, W.D. Washington, Tacoma

May 9, 2014

LESLIE SZIEBERT, et al., Defendant.


J. RICHARD CREATURA, Magistrate Judge.

This 42 U.S.C. §1983 civil rights matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. The Court has previously ruled that it will not strike defendants' motion for summary judgment and that the Court will not consider the portions of plaintiff's response that are over-length (Dkt. 102, pp. 2-3).

The majority of defendants - including defendants Sziebert, Richards, Cunningham, Griffith, Temposky, and Bailey - ask that the Court grant them summary judgment (Dkt. 75). The Court recommends granting defendants' motion in part, but denying defendants' motion as to Food Service Manager Temposky. Plaintiff presents sufficient evidence to show that there is an issue of fact regarding the alleged low sodium diet that plaintiff was provided from April 10, 2010 to the present. The other defendants are entitled to summary judgment because plaintiff fails to present admissible evidence that shows any other defendant was deliberately indifferent to his medical needs.


Plaintiff is a resident of the Washington State Special Commitment Center located on McNeil Island. Plaintiff alleges that the medical care and special diet he received were constitutionally inadequate. Plaintiff received medical care for three medical conditions: Hepatitis C, enlarged prostate, and Meniere's disease (Dkt. 5). Plaintiff was prescribed a low sodium diet for his Meniere's disease (Dkt. 5, p. 14, ¶ 6.9). Plaintiff also alleges that he had a right to have defendants purchase a hearing aid for him because of hearing loss associated with Meniere's.

Meniere's disease is an ear condition where the inner ear retains salt. The condition results in dizziness or vertigo, which may cause vomiting, ringing in the ears, and loss of hearing (Dkt. 76, Exhibit V). The vast majority of patients respond to level one treatment for Meniere's disease, which involves limiting sodium intake to below 2000 mg per day (Dkt. 76, Exhibit X, deposition of Dr. Souliere). There are three levels of treatment ( id. ). Plaintiff has been given all three levels of treatment and his condition is at the end stage of the disease in his right ear. Plaintiff is now deaf in his right ear and a hearing aid will not help him hear ( id. ).

Defendants set forth a condensed version of facts concerning plaintiff's treatment for each condition (Dkt. 75 pp. 3-13). Defendants support their version of facts with specific medical records and affidavits of medical providers ( id. ). In plaintiff's response, plaintiff does not contradict the factual assertions or medical records that defendants present (Dkt. 87). Instead plaintiff makes conclusory statements about a lack of treatment and then cites to lists of voluminous exhibits without explanation. Dkt. 87 pp. 11-14. With regard to his claim that he did not receive a low sodium diet, plaintiff presents evidence showing that there is a genuine issue of fact regarding the low sodium diet at the facility (Dkt. 87, p. 11). The exhibits plaintiff cites on this issue include affidavits from other residents who work in the kitchen. These residents set forth certain recipes for items they make (Dkt. 87 Exhibits 6 and 7). The food labels plaintiff attaches as exhibits show that the sodium content listed by the manufacturer and the sodium content listed on the menu by the facility do not match. Plaintiff shows that the amount of sodium in the recipe is understated on the menu. See Plaintiff's Exhibits 253, (menus), 254 (chart outlining alleged sodium discrepancies), 256-279 (manufacturer's labels). On this issue, plaintiff has presented admissible evidence to support his claim. Except for the diet issue, however, plaintiff has not provided the Court with specific references to dispute defendants' statement of the facts regarding plaintiff's treatment. Therefore, the Court adopts the portions of defendants' statements of fact regarding plaintiff's treatment. Defendants state:

Brief history of Mr. Capello's medical conditions and requests to SCC.

1. Hepatitis C.
The SCC first knew about Mr. Capello's Hepatitis C diagnosis in 2001, but Mr. Capello allegedly was unaware of the diagnosis until 2002. From 2001 forward, SCC medical staff made sure Mr. Capello periodically underwent tests to monitor the status of his Hepatitis C. ( Decl. of Knoll, ¶11, 12). The tests included blood screens and liver biopsies. These tests consistently showed that treatment was not medically necessary at the time. ( Decl. of Sziebert, ¶8).
In June of 2012, after Mr. Capello had been given an interval history and physical by Dr. (sic)[1] Howard Welsh, ARNP (Pro Se Defendant), Mr. Capello was referred to a Gastroenterologist for the purpose of having his Hepatitis C evaluated. According to Dr. (sic) Welsh, the referral was made because he felt Mr. Capello's Hepatitis C viral load was too high. ( Decl. of Knoll, ¶13, 14) [footnote omitted]. On October 4, 2012, Mr. Capello had his first visit and consultation with Dr. Brian Mulhall, a Gastroenterologist, for the purpose of evaluating whether he was an appropriate candidate to receive Hepatitis C treatment. Dr. Mulhall noted that Mr. Capello's only complaint was that he had "occasional lightheadedness and headaches attributed to his Meniere's disease." Dr. Mulhall did not note any abnormalities significant to Hepatitis C or that Mr. Capello was suffering from symptoms that normally relate to liver dysfunction. At the conclusion of this initial visit, Dr. Mulhall ordered labs and a liver biopsy and reserved judgment as to future Hepatitis C treatment until the results of the labs and biopsy were received. ( Decl. of Knoll, ¶16-19).
On or about November, 2012, Dr. Mulhall received the results of Mr. Capello's liver biopsy that he had ordered the previous month. On November 16, 2012, Dr. Mulhall informed Mr. Capello that his liver biopsy report "showed moderate-to-severe inflammation and moderate fibrosis..." and further recommended that "we continue with the plan defined at your last visit and plan to return to see me in the next few weeks." ( Decl. of Knoll, ¶20).
The next visit with Dr. Mulhall occurred on December 11, 2012. Again like before, Mr. Capello only made complaints about his Meniere's disease and not symptoms specific to Hepatitis C. ( Decl. of Knoll, ¶21). Dr. Mulhall "talked in-depth [to Mr. Capello] about the nature of treatment, the potential side effects, the duration of therapy and the likelihood of cure." According to Dr. Mulhall, Mr. Capello "seemed to have reasonable understanding" about the nature of future Hepatitis C treatment. At the conclusion of this visit, Dr. Mulhall recommended Hepatitis C treatment pending the results of three necessary medical clearances: Cardiology, Ophthalmology, and Psychiatry. ( Decl. of Knoll, ¶22).
By September 2013, Mr. Capello had finally obtained all his medical clearances and triple therapy Hepatitis C treatment began. ( Decl. of Sziebert, ¶12). Within weeks after starting treatment, Mr. Capello's Hepatitis C virus dramatically improved. For instance, his Hepatitis C viral load is now nearly undetectable. ( Decl. of Knoll, ¶23) and ( Decl. of Sziebert, ¶13).
2. Meniere's Disease (footnote omitted).
On or about July 2005, Mr. Capello went to see Dr. (sic) Randall Griffith (State Defendant) because he was experiencing hearing loss in his right ear and bouts of dizziness. On July 26, 2005, Dr. (sic) Griffith referred Mr. Capello to an Ear, Nose, and Throat (ENT) specialist so that his symptoms/problems could be evaluated more fully. ( Decl. of Griffith ¶7) and ( Decl. of Knoll, ¶27). Dr. Charles R. Souliere (ENT specialist) eventually saw Mr. Capello on August 30, 2005 (1st visit) and diagnosed him with right-sided Meniere's disease. The course of treatment recommended at that time was a combination of a "low-sodium diet (less than 2000 mg/day) and diuretics in the form of Dyazide...." If this did not improve his condition, then a "right middle ear steroid injection" could be entertained. ( Decl. of Knoll, ¶28). Dr. Souliere next saw Mr. Capello on November 8, 2005 (2nd visit). During this visit, Dr. Souliere increased the diuretic based upon Mr. Capello's insistence that he was having trouble with his sodium levels. ( Decl. of Knoll, ¶29). Dr. Souliere saw Mr. Capello next on January 24, 2006 (3rd visit). At that visit, Mr. Capello still complained of dizziness and increased loss of hearing in his right ear. Because of no improvement in Mr. Capello's condition, Dr. Souliere decided to recommend a middle ear steroid injection. This was performed on March 7, 2006 (4th visit) in Dr. Souliere's office. ( Decl. of Knoll, ¶30). On April 11, 2006 (5th visit), Mr. Capello had a follow up visit and reported that his vertigo and tinnitus had improved, but not his hearing and he had been off diuretics for one month. ( Decl. of Knoll, ¶31). On October 31, 2006 (6th visit), Mr. Capello indicated he had no significant dizziness and was feeling "okay with occasional tinnitus...." ( Decl. of Knoll, ¶32). The treatment recommendations made at this visit included staying on diuretic and possibly repeating the middle ear steroid injection. ( Decl. of Knoll, ¶33). On February 12, 2007 (7th visit), Mr. Capello had another visit with Dr. Souliere. The notes indicated Mr. Capello's hearing had improved, the Meniere's disease was stable, and the diuretic should continue. ( Decl. of Knoll, ¶34). On August 28, 2007 (8th visit), Mr. Capello had a six month follow up. Dr. Souliere noted that the Meniere's disease was stable and that the diuretic should continue and to return in six months. ( Decl. of Knoll, ¶35). On April 21, 2008 (9th visit), Mr. Capello appeared for another six month follow up. Like before, Dr. Souliere determined that the Meniere's disease was stable and that the diuretic should continue. He recommended a follow up in one year. ( Decl. of Knoll, ¶36). On March 2, 2011, Mr. Capello was seen by Dr. Ronald Benveniste, an otolaryngologist, who recommended Mr. Capello go back to see Dr. Souliere. ( Decl. of Knoll, ¶37). On July 18, 2011 (10th visit), Mr. Capello saw Dr. Souliere and it was noted that he had lost additional hearing and was still taking a diuretic. Since there was additional hearing loss, Dr. Souliere recommended Mr. Capello undergo an MRI of his head to rule out the possibility of a tumor causing hearing loss. This was performed on August 22, 2011, and "showed no evidence of intracranial mass or tumor." At this point, Dr. Souliere recommended injecting the right ear with gentamicin "transtympanically in an effort to do what is called a chemical labyrinthectomy in that ear." This treatment was aimed at getting rid of the dizziness spells and vertigo attacks. The gentamicin injections were first given on September 15, 2011 (11th visit). ( Decl. of Knoll, ¶38). On December 1, 2011 (12th visit), Mr. Capello had a second gentamicin injection. ( Decl. of Knoll, ¶39). On August 29, 2013 (13th visit), Mr. Capello saw Dr. Souliere for complaints of decreased hearing in his right ear as usual but now he was experiencing predominantly position-related spinning, which was different than some of his earlier attacks. Dr. Souliere diagnosed Mr. Capello with benign positional vertigo and recommended canalith repositioning therapy that could be done by a physical therapist. ( Decl. of Knoll, ¶40). Since August 29, 2013, Mr. Capello has not been back to see Dr. Souliere. However, Ms. Galina Dixon has referred Mr. Capello to see a physician assistant named Midge Price to treat his benign positional vertigo. ( Decl. of Knoll, ¶41). The canalith repositioning was performed on December 13, 2013 with instructions to return in one week if dizziness persists. ( Decl. of Knoll, ¶41). As of the filing of this brief, the undersigned is not in possession of any medical records that state Mr. Capello has experienced episodes of dizziness since the canalith repositioning treatment.
The last communication by Dr. Souliere to Mr. Capello came by letter on September 10, 2013. In this letter addressed to Dr. Dixon, Dr. Souliere informed her in relevant part that Mr. Capello has "end-stage Mnire's (sic) disease in his right ear with near total deafness." He further went on to state that it was his impression that his right ear is not aidable with hearing aid technology to any significant benefit and given that his left ear is normal the only advantage that hearing from his right ear would offer would be directionality of sound, and would not increase the loudness or overall ability to hear in quite (sic) situations." ( Decl. of Knoll, ¶42).

3. Enlarged Prostate.

On July 22, 2012, Mr. Capello made a sick call request to see his primary care physician because of prostate problems (excessive urination). He saw Dr. (sic) Welsh on July 26, 2012 about this problem and Dr. (sic)Welsh performed a routine digital exam on him. The medical record indicated that Mr. Capello's prostate was of normal contour and without nodules, but slightly enlarged. Also Mr. Capello's PSA was normal. Dr. (sic) Welsh recommended that maybe a followed up with a GI specialist would be advisable. ( Decl. of Knoll, ¶43). On September 23, 2012, Mr. Capello wrote Dr. (sic)Welsh a letter stating among other things that no medical appointment had been made to address the enlarged prostate. ( Decl. of Knoll, ¶44). No records exist to support a conclusion that Dr. (sic) Welsh referred Mr. Capello to a specialist for the purpose of examining his enlarged prostate.6
FN6 It appears that Dr. (sic) Welsh thought he had referred Mr. Capello to see a Urologist based upon his handwritten notes ("Requested on 6/26/12") on his copy of Mr. Capello's September 23rd letter, but this is not the case. ( Decl. of Knoll, ¶ 44). The only referral Dr. (sic) Welsh made concerning Mr. Capello on June 26, 2012 was to Gastroenterlogy for the purpose of Hepatitis C treatment.
Mr. Capello's next prostate examination occurred with Dr. (sic) Galina Dixon (Defendant) on March 12, 2013. Her examination revealed the same results as before: enlarged prostate without nodules. However, unlike Dr. (sic) Welsh, she prescribed Terazosin 1 mg to be used for two months and ordered a PSA test. Also, she made a referral to a urologist on behalf of Mr. Capello. ( Decl. of Knoll, ¶45-47). On April 30, 2013, Mr. Capello again saw Dr. (sic) Dixon about his prostate problem. He reported urinating every two hours at night. Dr. (sic) Dixon increased his Terazosin to 2 mg and advised him that his PSA taken last month was within normal limits. [footnote omitted] ( Decl. of Knoll, ¶49). On May 15, 2013, Mr. Capello submitted another specimen for Dr. (sic) Dixon so that his PSA could be checked. ( Decl. of Knoll, ¶50). This PSA test came back within the normal range. During another May 21, 2013 appointment with Dr. (sic) Dixon,
Mr. Capello still complained about frequent urination at night, but stated it had improved from four urinations a night to just two to three. Dr. (sic) Dixon informed him that the increased dose of Terazosin may take four to six weeks to begin working. ( Decl. of Knoll, ¶51). A follow-up visit occurred regarding the prostate treatment on June 12, 2013. At this appointment, Mr. Capello agreed to increase his dosage of Terazosin to 5 mg from the previous 2 mg. Also, Dr. (sic) Dixon discussed with Mr. Capello the Urology consult she requested on March 12, 2013 and scheduled him for a follow-up appointment on July 9, 2013. ( Decl. of Knoll, ¶52). On July 9, 2013, Mr. Capello reported that his urination at night has slowed to two a night, but that he still goes to the bathroom a lot during the day. He was again informed that his new dosage of Terazosin may take four to six weeks to make a difference in urination frequency. On November 4, 2013, Dr. (sic) Dixon requested a medical consult for Mr. Capello to see a urologist for his enlarged prostate. ( Decl. of Knoll, ¶53). Mr. Capello's next saw Dr. (sic) Dixon on November 13, 2013. At this appointment Mr. Capello reported that he still urinates two times a night, but that he did not want to change his treatment because of the ongoing Hepatitis C treatment. ( Decl. of Knoll, ¶54). On November 25, 2013, Dr. (sic) Dixon performed her second digital exam on Mr. Capello. This time she noted in Mr. Capello's medical record that the prostate had become more firm as compared to her first examination. ( Decl. of Knoll, ¶55). On December 3, 2013, Mr. Capello was seen by Dr. John B. Bak, Urologist, pursuant to Dr. (sic) Dixon's medical consult of November 4, 2013. ( Decl. of Knoll, ¶53). Dr. Bak's consult does not identify any concern for the prostate such as cancer, but rather diagnosed Mr. Capello with an overactive bladder (OAB). He recommended switching Mr. Capello to a non-diuretic and also starting him on Ditropan 5 mg p.o. t.i.d. for his overactive bladder symptoms. ( Decl. of Knoll, ¶57).

(Dkt. 76 pp. 3-9).

Defendants summarized their arguments regarding plaintiff's claims in five brief statements:

First, Mr. Capello's Hepatitis C has responded well to drug therapy and is now in remission. Second, the Meniere's disease has run its course and Mr. Capello's Ear Nose and Throat (ENT) specialist believes it is well managed. Third, Mr. Capello's frequent urination episodes are a result of an over active bladder (OAB) and not his enlarged prostate. Fourth, medical records confirm that Mr. Capello has received a 2000 mg low sodium diet since 2005. Fifth, the hearing aid requested was not deemed to be medically necessary by the SCC, and Mr. Capello was not prevented from purchasing one with his own funds.

(Dkt. 75, p. 2). Defendants raise eight arguments in their motion for summary judgment:

1. Does the statute of limitations bar Mr. Capello's claims regarding a low sodium ...

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