Free Response to Motion - District Court of Arizona - Arizona

1 2 3 ! 4 5 6 7 8 James John Hadges, 9 10 11 12 13 14 15 16 17 18 19 20 21
% & % % " # $

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Maricopa County, a ) political subdivision of ) the State of Arizona; ) Sheriff Joseph Arpaio, as ) elected representative and ) as acting director of ) Maricopa County Sheriff's ) Office; Maricopa Medical ) Center; Correctional ) Health Services, an ) administrative agency of ) Maricopa County, ;Does 1) 10 inclusive; Roe ) Corporations 1-10 ) inclusive, ) ) Defendants. ) __________________________ ) Case No. CIV 04-0259-PHX-EHC (DKD)

PLAINTIFF'S RESPONSE TO TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

COMES NOW the Plaintiff, James John Hadges, by and

22 through undersigned counsel, and responds to Defendants' Motion 23 for Summary Judgment as follows: 24

Plaintiff requests that the Court deny Defendants'

25 Motion for Summary Judgment as, while Defendant Sheriff may not be 26 a medical provider and not responsible for providing medical care 27 in the Maricopa County Jail system, said Sheriff is responsible 28 for transporting inmates to their medical appointments.

Further,

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1 Defendant Maricopa County was, in this case, deliberately 2 indifferent to Plaintiff's serious medical needs and failed to 3 provide appropriate medical care resulting in permanent injuries 4 to Plaintiff.

This Response is supported by the attached

5 Memorandum of Points and Authorities. 6 7 8 9 10 11 12

RESPECTFULLY SUBMITTED this 30th day of July, 2007. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Plaintiff CERTIFICATE OF SERVICE

X I hereby certify that on July 30, 2007, I electronically transmitted the attached document to the Clerk's Office using the 13 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 14 Maria R. Brandon, Esq. 15 DEPUTY COUNTY ATTORNEY Attorney for Defendants 16
17

X I hereby certify that on July 30, 2007, I served the attached document by First Class Mail on the following, who are not registered 18 participants of the CM/ECF System:
19 20 21 22 23 24 25 26 27 28

None. S/Philip A. Seplow

MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY JUDGMENT STANDARD Plaintiff agrees with the summary judgment standard as set forth in Defendant's Memorandum of Points and Authorities.

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1 II. 2 3

LEGAL ARGUMENT A. Defendant's Statement of Facts Defendant's Statement of Facts is supported solely by the

4 Affidavit of Todd Wilcox, M.D. In said Affidavit, Dr. Wilcox states: 5 "For purposes of this affidavit, I have reviewed the CHS medical 6 records for James John Hadges (DOB: 8/2/61 MCSO Booking #A851943.) 7 Based upon that examination Dr. Wilcox concluded Plaintiff "was 8 provided appropriate medical care in a timely fashion that the 9 standard of care for medical treatment and practice (sic)." However, 10 the Affidavit fails to provide any detail as to which records were 11 provided nor which records were reviewed.

The records provided

12 Plaintiff by Defendants are lacking and if the records that were 13 provided to Dr. Wilcox were similarly lacking, his conclusion is 14 based upon incomplete information. 15 16

B.

Defendant Sheriff Arpaio Even if the Maricopa County Sheriff is not responsible for

17 providing inmate medical care, as the Defendants allege, jail inmates 18 under the care, custody and control of the Sheriff have no choice but 19 to rely upon the Maricopa County Sheriff to transport them to any 20 scheduled

off-site

medical

appointments

and/or

surgeries.

As

21 Defendants' admit in their Memorandum of Points and Authorities, the 22 Sheriff has responsibilities with regard to the jails, and has 23 control over his own employees. 24 not

When those employees fail to act by inmate for his scheduled medical

transporting

an

injured

25 appointments (see section "C" infra) for treatment, then the Sheriff 26 is exhibiting a deliberate indifference to a serious medical need 27 under the Civil Rights Act, 42 U.S.C. §1983. 28 / / /

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1 2 3

B.

Defendant Maricopa County Was Deliberately Indifferent to Plaintiff's Serious Medical Needs

The discovery material provided to the Plaintiff by the Plaintiff has made a

4 Defendants is missing some key information.

5 written request of Defendants' counsel for certain missing doctor's 6 reports, but as of the writing of this Response, said materials have 7 not been received.

However, as this Response is now due, Plaintiff

8 will respond to the best of his ability without all the supporting 9 documentation. 10

On Friday, October 4, 2002, Plaintiff was seen by Dr. Hany It was Dr. Hannallah's medical

11 Hannallah, an orthopaedic surgeon.

12 opinion that immediate surgery ("ORIF") was medically necessary and 13 "After a great deal of effort, Dr. Hannallah arranged to have the 14 patient transferred from the prison [jail] to the hospital on the 15 following Monday; this was done on a Friday."1

Indeed, knowing he

16 was scheduled for surgery the next day, Plaintiff signed a NPO ("no 17 food by mouth") order just before midnight on October 6, 2002. 18 However, jail personnel failed or refused to transport Plaintiff to 19 the hospital for surgery. 20 up

In what appears to be an attempt to cover D. Wright, RN, CPUR, a Utilization

this

failure,

Cynthia

21 Coordinator for Correctional Health Services, authored an undated 22 memo to Dr. J. Gregorio stating: 23 24 25 26 27 28
1

Dr. Gregorio, I spoke with Dr. Hanula (sic) on Friday 10-/4/02

In a Maricopa Integrated Health System Clinic Referral Note authored by David L. Cherney, MD, on October 23, 2002, it states: "By report from the guard here at CHC today, the patient refused to be transferred to the hospital that Monday." However, after a thorough search of the records provided to Plaintiff, no such refusal is noted. Indeed, on October 6, 2002, Plaintiff signed a NPO ("no food by mouth") order and an October 7, 2002, "Nursing Assessment" notes that Plaintiff "Remains NPO for surgery."

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regarding James Hadges and his need for ORIF. Since then I have spoke (sic) to Dr. Steinhauser and to several doctors at Maricopa Medical Center (Dr Kaye, Dr Hall Dr. Schafer, and to Dr. Seltzer. Essentially, they are all in agreement that Mr. Hadges is no longer a candidate for the original surgery, the ORIF. He does not need to be admitted urgently at this time. At this point he needs to heal completely and come into the Ortho Clinic to see Dr Cherney to determine if he needs an osteotomy or what specifically needs to be done. According to the fax information line imprinted at the top of the memo, it was faxed to Dr. Gregorio on October 7, 2002, at 1:37 p.m. It should be noted that no records were provided to Plaintiff

documenting these alleged phone calls. Further, Plaintiff questions how these doctors could render an opinion contradicting Dr. Hannallah (who examined the Plaintiff on October 4) without having recently examined or even spoken with Plaintiff. And finally, it begs the

question: If, indeed, the surgery was canceled as stated in Ms. Wright's memo, then why was Mr. Hadges asked to sign an NPO order just hours before his surgery? When Mr. Hadges finally saw a surgeon (Dr. Felix F. Jabczenski, Jr., in July of 2003, after Mr. Hadges was out of county "care" and placed in the Arizona Department of Corrections, Dr. Jabczenski said, "These problems [Mr. Hadge's broken feet and ankles] are always difficult to correct later." be rewarded for "hiding the ball." The Defendants should not

The Defendants made general

statements as to a guard's assertion that Mr. Hadges refused to be taken to the hospital on October 7, 2002, for his scheduled surgery, but no documentation has been provided to support that assertion.2

2

When inmates refuse medical treatment and/or transportation to receive medical treatment, that refusal is documented by the inmate signing a refusal/denial of medical treatment.

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1 Mr. Hadges never executed any document evidencing his refual or 2 denial of medical treatment.

Further, the defense has not provided

3 the complete medical records of Dr. Hannallah.3 4

Plaintiff asserts that the above alone creates a genuine

5 issue for trial as the "evidence is such that a reasonable jury could 6 return a verdict for the non-moving party [Plaintiff)." 7 8

C.

Respondeat Superior

The Sheriff's office covered up its failure to take Mr.

9 Hadges to the hospital for his scheduled October 7, 2002, operation. 10 Further, there is no way to tell which "imaginary" guard was supposed 11 to take Mr. Hadges to the surgery, or even more crucial, which 12 "imaginary" guard made the false claim that Mr. Hadges did not want 13 to proceed to surgery.

This is indicative of the Sheriff's official

14 policy and/or custom to deny prisoners and detainees proper medical 15 care in violation of 42 U.S.C. § 1893. 16 CONCLUSION: 17

Wherefore, in light of the above, Plaintiff requests that

18 Defendants' Motion for Summary Judgment be denied and that the case 19 be permitted to proceed to trial.

Inferences have been raised that

20 the Sheriff unlawfully refused to allow Mr. Hadges to have the 21 treatment ordered by Dr. Hannallah.

The Defendants are now covering

22 this inhumane action up, in an attempt to disguise and hide its 23 policy and/or custom to deny proper medical care to its inmates when 24 they can wait to pawn the expense off on the State via the Department 25 26 27 28
3

Undersigned counsel's office spoke with Dr. Hany Hannallah's office seeking his complete medical records regarding James John Hadges. Dr. Hannallah's office advised that they attempted to retrieve the documents from the Maricopa Medical Center but were told that they are not available. Counsel's office was directed to try to obtain same from CHS. Counsel's office has thus made a written request to the defense for these records.

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1 of Corrections. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DATED THIS 30th day of July, 2007. PHILIP A. SEPLOW, ESQ.

By: s/Philip A. Seplow Philip A. Seplow, Esq. Attorney for Plaintiff

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