Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Robertson, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Kim Michael Cook, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1100-PHX-ROS (MHB) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JWB

Before the Court are Defendant Benjamin's and Robertson's Motions for Summary Judgment (Doc. ## 64, 66), Plaintiff's Motions to Disallow Alvin B. Elisco and Patricia Stapler as Expert Witnesses (Doc. ## 71, 77), and Robertson's "Motion to Strike Plaintiff's Exhibit 23" (Doc. # 112). The Court will deny all parties' motions to strike, grant Benjamin's Motion for Summary Judgment, and deny Robertson's Motion for Summary Judgment. I. Procedural Background Plaintiff is a prisoner of the state of Alaska and at the time relevant to this lawsuit was housed at the Central Arizona Detention Center ("CADC") and Florence Correctional Center ("FCC") in Florence, Arizona. Plaintiff filed a First Amended Complaint presenting 7 claims for relief against 16 defendants. Upon screening, the Court dismissed several claims and Defendants and ordered Defendants Dr. Matthew Benjamin ("Benjamin") and Dr. John Robertson ("Robertson") to answer Count I.
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In Count I, Plaintiff alleged that while incarcerated at the CADC and FCC, he complained often and regularly of problems with sleep apnea, acid reflux, and a loud snoring problem for which he had not received treatment (Doc. # 10 at 4). Benjamin and Robertson each filed a Motion for Summary Judgment (Doc. ## 64, 66). Benjamin contends that: (1) sleep apnea does not constitute a serious medical need; (2) Benjamin was not deliberately indifferent to Plaintiff's medical needs; (3) Plaintiff has acknowledged that Benjamin was not deliberately indifferent to his medical needs; and (4) Plaintiff failed to plead exhaustion in his First Amended Complaint (Doc. # 64 at 2). Robertson contends that: (1) sleep apnea does not constitute a serious medical need; (2) Robertson was not deliberately indifferent to Plaintiff's medical needs; (3) Plaintiff did not suffer any injuries resulting from a delay in medical treatment; (4) a disagreement between a doctor and patient regarding the appropriate treatment plan is insufficient to rise to the level of a constitutional violation; and (5) Plaintiff failed to exhaust his administrative remedies (Doc. # 66). II. Factual History Plaintiff suffers from Obstructive Sleep Apnea ("sleep apnea") (Doc. # 65, Benjamin's Statement of Facts ("BSOF") ¶ 2; Doc. # 67, Robertson's Statement of Facts ("RSOF") ¶ 1). Sleep apnea is a condition where a patient stops breathing during sleep because enough air cannot flow into a patient's lungs through his mouth and nose. When this occurs, the amount of oxygen in the bloodstream may drop. Untreated sleep apnea can increase the chances of having high blood pressure, a heart attack, or a stroke. Sleep apnea is most commonly treated with a Continuous Positive Airway Pressure ("C-PAP") machine. This machine blows air into a patient's throat and keeps it open during sleep.1 Plaintiff was transferred to CADC on July 8, 2001. On September 20, 2001, Plaintiff had his first medical visit with Benjamin, a physician employed by Corrections Corporation of America ("CCA"), the private corporation that operates CADC and FCC (Doc. # 65, Ex.

Sleep Apnea, Mayo Clinic, http://www.mayoclinic.com/health/sleep-apnea/DS00148 (last visited March 15, 2007). -2Document 129 Filed 03/27/2007 Page 2 of 15

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4 at 1). Plaintiff was examined for complaints of possible sleep apnea and acid reflux problems. Benjamin prescribed reflux medication and instructed Plaintiff to return in approximately one month to determine if the reflux medication improved his sleep pattern (Id.). Plaintiff returned to Benjamin the following month and still presented sleep apnea symptoms (Id. at 2). Benjamin prepared a consultation request for Plaintiff to undergo a sleep study (Id. at 4). In the meantime, Benjamin signed a "Medical Response to Inmate" form to provide Plaintiff with a sleep wedge and a bottom bunk card to attempt to alleviate some of his symptoms (Id. at 3). On October 30, 2001, Robertson, the Medical Director for the Alaska DOC, reviewed the consultation request and deferred it, requiring Benjamin to first perform lab tests on Plaintiff and check his height and weight. Plaintiff's blood tests were performed on November 7, 2001 and Benjamin recorded the results on the sleep study consultation request and sent it back to the Alaska DOC later that month (Id. at 5-6). Meanwhile, Plaintiff complained on November 17, 2001 that he had not yet received the wedge pillow authorized by Benjamin. As a result, the next week, Benjamin completed a "Non-Formulary Request Form" requesting a wedge pillow for Plaintiff, which he subsequently received (Doc. # 65, Ex. 2 at 3; Doc. # 105 at 1). The Alaska DOC authorized Plaintiff's sleep study on January 30, 2002; Plaintiff underwent a sleep study on February 7, 2002 (Doc. # 67, Ex. 7). Benjamin reviewed the report from the sleep study that month. The report indicated that it was "highly suggestive" of a sleep-related breathing problem, but that because Plaintiff was asleep for less than 50% of the night, it was not absolutely diagnostic of a sleep disorder (Id.). Benjamin,

nevertheless, recommended that Plaintiff receive a C-PAP machine and requested that Plaintiff be transferred to a facility where C-PAP machines are permitted (Doc. # 65, Ex. 4 at 21; Doc. # 67, Ex. 8). Plaintiff submitted a grievance in June 2002, requesting that he be transferred to Spring Creek, Alaska, where C-PAP machines are permitted. Plaintiff received a response to his grievance stating that a request for a C-PAP machine was submitted on Plaintiff's
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behalf to the Alaska DOC, but that a response had not yet been received. Plaintiff appealed from that response in July 2002, stating that if he did not receive a C-PAP machine, he would file a lawsuit. Plaintiff further articulated that he knew of several other inmates who had received C-PAP machines and denying Plaintiff a machine was therefore discriminatory. On August 26, 2002, Plaintiff received a response to his appeal from Mel Henry, a Health Care Administrator at the Alaska DOC. Henry stated that the February 2002 sleep study was not diagnostic of sleep apnea and therefore he was not entitled to a C-PAP machine. The response further stated that Plaintiff would have a repeat sleep study for a conclusive diagnosis. In July 2002, Plaintiff was transferred to the FCC where C-PAP machines are permitted (Doc. # 105 at 4). The next month, a staff member at FCC spoke with American Sleep Diagnostics to inquire about performing a second sleep study on Plaintiff. The sleep center recommended that Plaintiff be provided with a C-PAP machine (Doc. # 67, Ex. 11). Benjamin examined Plaintiff for the last time on January 8, 2003, as he left the employ of CCA. On July 17, 2003, Dr. Barnett ("Barnett"), another physician with CCA, evaluated Plaintiff and sent another consultation request to the Alaska DOC for a C-PAP trial (Doc. # 65, Ex. 4 at 24). Barnett articulated that Plaintiff's history is highly suggestive of sleep apnea and that Plaintiff did not present symptoms related to lower or upper respiratory disease as a contributing factor. Barnett concluded that the appropriate course of action was a C-PAP machine (Id.). In August 2003, Robertson denied the request for a C-PAP trial and ordered that Plaintiff see a pulmonary specialist (Id.). Robertson further decided that if a pulmonary specialist recommended that Plaintiff have a second sleep study, he would authorize one (Id.). On December 12, 2003, Plaintiff was examined by Dr. Quan, who recommended that a second sleep study be performed (Doc. # 67, Ex. 17). Plaintiff did not undergo a second sleep study until August 2005 (Doc. # 65, Ex. 4 at 25-26). The sleep study report concluded that Plaintiff suffers from moderately severe
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obstructive sleep apnea (Id.). Plaintiff was issued a C-PAP machine on September 2, 2005 (Id. at 27). III. Motions to Strike Plaintiff filed motions to exclude Drs. Elisco and Stapler, the expert witnesses for Benjamin and Robertson, respectively. Plaintiff's motions do not adduce a legal basis for excluding their affidavits or testimony; rather, Plaintiff simply disagrees with their medical conclusions. The Court will consider Plaintiff's objections, but will otherwise deny his motions. Robertson filed a motion to strike Exhibit 23 of Plaintiff's response to Robertson's Motion for Summary Judgment. The Court will, as with Plaintiff's motions, consider Defendant's objections, but will otherwise deny the motion. The Court is able to determine what is admissible evidence and what is not. IV. Summary Judgment Standard A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When considering a summary judgment motion, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). These inferences are limited, however, "to those upon which a reasonable jury might return a verdict." Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1220 (9th Cir. 1995). Rule 56(c) mandates the entry of summary judgment against a party who, after adequate time for discovery, fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23. Rule 56(e) compels the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial" and not to "rest upon the mere allegations or denials of [the party's] pleading." The nonmoving party must do more than
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"simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477 U.S. at 249. Summary judgment is warranted if the evidence is "merely colorable" or "not significantly probative." Id. at 249-50. V. Exhaustion Benjamin argues in his Motion for Summary Judgment that Plaintiff's claims must be dismissed with prejudice because Plaintiff failed to articulate in his First Amended Complaint that he exhausted his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Benjamin, however, fails to offer any Ninth Circuit support for that proposition. Nor could he--Lira v. Herrera specifically states that § 1997e(a) "is not a jurisdictional requirement that the plaintiff must plead and establish. Instead § 1997e(a) establishes an affirmative defense, waived if the defendant does not raise it." 427 F.3d 1164, 1171 (9th Cir. 2005) (emphasis added). The recent Supreme Court decision in Jones v. Bock reaffirms that proposition. 127 S.Ct. 910, 921 (2007) ("failure to exhaust is an affirmative defense under the PLRA, and [] inmates are not required to specially plead or demonstrate exhaustion in their complaints"). Consequently, Benjamin is not entitled to summary judgment on this issue. Robertson also argues that Plaintiff failed to exhaust his administrative remedies as required by the PLRA. Robertson tepidly advanced this argument in his Motion for

Summary Judgment (Doc. # 66 at 12). In his Reply in support of his Motion for Summary Judgment, however, Robertson materially changed his argument regarding exhaustion, an argument to which Plaintiff has not had an opportunity to respond (Doc. # 110 at 8-9). The Court will not consider an argument raised for the first time in a reply brief. See CedanoViera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir. 2003) (declining to consider an issue raised for the first time in a reply brief). The Court also notes that Robertson did not list exhaustion as an affirmative defense in his Answer (Doc. # 26).

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Neither Defendant has properly presented an argument that Plaintiff has failed to exhaust his administrative remedies. Thus, Defendants are not entitled to summary judgment on the issue of exhaustion. VI. Deliberate Indifference to a Serious Medical Need Defendants seek summary judgment on the basis that sleep apnea does not constitute a serious medical need. Further, they argue that even if Plaintiff has a serious medical need, they have not acted with deliberate indifference to that need (Doc. ## 64, 66). Plaintiff argues that genuine issues of material fact preclude summary judgment (Doc. ## 102, 105). States are prohibited by the Eighth Amendment from incarcerating inmates in conditions that constitute cruel and unusual punishment of confinement. Pursuant to this obligation, state officials who act with deliberate indifference to an inmate's serious medical needs are liable in a § 1983 action. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment also prohibits deliberate indifference that subjects an inmate to an excessive risk of future harm. Helling v. McKinney, 509 U.S. 25, 33 (1993). "[D]eliberate indifference to a prisoner's serious medical needs is the `unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104-05. A state prison official is deliberately indifferent if he both knows of and disregards an excessive risk to an inmate's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to establish deliberate indifference, a plaintiff must establish that the alleged harm was "sufficiently serious" and that the official acted with a "sufficiently culpable state of mind." Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298, 302-3 (1991)). Mere negligence or medical malpractice does not establish a sufficiently culpable state of mind. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). However, a prisoner does not have to prove that he was completely denied medical care in order to demonstrate deliberate indifference. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000). Deliberate indifference may be shown when an official denies, delays, or intentionally interferes with treatment or by the way that a medical professional provided the care. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). "[A] mere `difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi v. Chung, 391
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F.3d 1051, 1058 (9th Cir. 2004) (citations omitted). To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of treatment the doctors chose was medically unacceptable in light of the circumstances and that it was chosen in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). When a prisoner attempts to hold a prison employee responsible for deliberate indifference, the prisoner must establish individual fault. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Sweeping conclusory allegations will not be sufficient to prevent summary judgment. Id. "The prisoner must set forth specific facts as to each individual defendant's deliberate indifference." Id. at 634. He must prove that the specific prison official was deliberately indifferent and that this indifference was the actual and proximate cause of the injury. Id. A. Serious Medical Need

Defendants argue that sleep apnea is not a serious medical need that would trigger Eighth Amendment protection against deliberate indifference. Defendants have not proffered any medical evidence to support their contention that sleep apnea is not a serious medical need. Benjamin argues that because "the description, ramifications, prognosis, and need for treatment of individuals with sleep apnea are not obvious to a lay person" then sleep apnea cannot be a serious medical need (Doc. # 64 at 9). Robertson argues that sleep apnea does not constitute "a condition of urgency, one that may produce death, degeneration, or extreme pain" (Doc. # 66 at 8). Neither argument, however, comports with the Ninth Circuit standard for what constitutes a serious medical need. In the Ninth Circuit, a plaintiff can show a serious medical need "by demonstrating that `failure to treat a [] condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations omitted) (emphasis added).

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Defendants have not meaningfully argued that sleep apnea cannot lead to further significant injury. The Court finds that a reasonable jury could conclude that sleep apnea is a serious medical need. The Court rejects Defendants' arguments that laypersons could not appreciate the seriousness of sleep apnea. Sleep apnea is a disorder causing individuals to stop breathing in their sleep, the potential ramifications of which are certainly obvious to laypersons, and which are detailed above. As a result, summary judgment will be denied with respect to this issue. B. Deliberate Indifference

Deliberate indifference amounts to criminal recklessness; a defendant must have known that a plaintiff was at serious risk of being harmed, and decided not to do anything to prevent that harm from occurring. See Farmer, 511 U.S. at 836-837. A plaintiff does not have to use words like "reckless" or "intentional" to make out a case for deliberate indifference. He must merely plead that a defendant behaved in a way that can be construed to show reckless or intentional conduct. Delay in treating a condition can rise to the level of deliberate indifference. See Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (finding a 3-month dely of treatment to be deliberate in light of prisoner's serious dental problems and repeated complaints); Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (6-day delay in treating prisoner's hepatitis might constitute deliberate indifference). For the purposes of summary judgment, Plaintiff has sufficiently made this showing with respect only to Robertson. 1. Robertson Robertson's arguments as to why he was not deliberately indifferent to Plaintiff's serious medical needs are: (1) a mere delay in medical care is insufficient to show deliberate indifference; (2) a disagreement with medical staff about the course of treatment is insufficient to show deliberate indifference; and (3) Plaintiff cannot demonstrate that he was injured from the delay in receiving a C-PAP machine. For the reasons that follow, the Court finds that material issues of fact exist as to whether Robertson was deliberately indifferent to Plaintiff's sleep apnea and his Motion for Summary Judgment will therefore be denied.
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a. Delay Deliberate indifference may be shown when an official denies, delays, or intentionally interferes with treatment or by the way that a medical professional provided the care. Jett, 439 at 1096 (emphasis added). Here, the evidence demonstrates that Robertson was ultimately responsible for the substantial delay Plaintiff experienced in receiving his C-PAP machine. Robertson was aware of Plaintiff's sleep apnea as early as October 2001, when Benjamin, responding to Plaintiff's "significant sleep apnea symptoms," requested that Plaintiff undergo a sleep study (Doc. # 62, Ex. 6). Robertson denied the initial request for a sleep study, instead requiring that Plaintiff undergo blood tests and that his height and weight be checked. Robertson subsequently authorized Plaintiff's first sleep study which occurred on February 7, 2002. That report, while not absolutely diagnostic, was "highly suggestive" of a sleep related breathing disorder (Doc. # 67, Ex. 7). After reviewing the sleep study report, Benjamin noted in Plaintiff's medical records that "sufficient evidence for sleep apnea" existed and he recommended that Plaintiff receive a C-PAP machine (Doc. # 67, Ex. 8). Benjamin further noted that he discussed this recommendation with Robertson (Id.). Rather than (1) following the recommendation of Benjamin to immediately issue Plaintiff a C-PAP machine or (2) making arrangements to schedule Plaintiff for another sleep study to obtain a conclusive diagnosis, Robertson failed to take any action for over one year. This delay was further compounded when Robertson denied two additional consultation requests submitted in July 2003; one was submitted by Mike Greene, a physician's assistant at CADC, and the other was submitted by Barnett, a physician at CADC (Doc. # 67, Ex. 14; Doc. # 67, Ex. 15). Greene requested that Plaintiff undergo a current sleep study to address his sleep apnea symptoms because Plaintiff was presenting high blood pressure and Barnett recommended that Plaintiff simply be given a C-PAP machine. Both requests were denied; Robertson decided that Plaintiff could receive a C-PAP machine if (1) a pulmonary specialist recommended it and (2) a second sleep study confirmed Plaintiff's sleep apnea diagnosis (Doc. # 65, Ex. 4 at 22).

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Plaintiff saw Dr. Quan, a pulmonary specialist, on December 12, 2003, who documented a diagnosis of obstructive sleep apnea and recommended that Plaintiff undergo a sleep study (Doc. # 67, Ex. 17). Yet, inexplicably, Plaintiff was not scheduled for a follow up sleep study for 16 months (Doc. # 67, Ex. 19). The Court finds that the significant delay Plaintiff experienced in undergoing a second sleep study and receiving a C-PAP machine precludes summary judgment in favor of Robertson. Robertson has made no attempt to explain why it was necessary to require Plaintiff wait nearly four years to finally receive the treatment all of his treating physicians (e.g. Drs. Benjamin, Barnett, and Quan and Physician's Assistant Greene) recommended much earlier. As a result, the Court finds that a reasonable jury could conclude that Robertson was deliberately indifferent to Plaintiff's serious medical need by delaying his medical treatment. Jett, 439 F.3d at 1096. b. Disagreements regarding treatment The Court further finds Robertson's argument that Plaintiff merely disagreed with his treatment plan to be without merit. As articulated above, the record conclusively

demonstrates that every doctor who treated Plaintiff opined that he required the use of a CPAP machine. Robertson required Plaintiff to see a pulmonary specialist; but Barnett had already informed Robertson that upper or lower respiratory disease was not a contributor to Plaintiff's sleep apnea (Doc. # 67, Ex. 15). More importantly, Robertson made no effort to explain why he felt it necessary for Plaintiff to see a pulmonary specialist when his treating physician excluded respiratory disease. This is not a case where only the Plaintiff disagreed with the treatment he received; rather, this is a case where every doctor reached the same conclusion and Robertson ignored them all. In addition, on August 15, 2002, Plaintiff's medical records indicate that American Sleep Diagnosics, the agency that administered the first sleep study, recommended that Plaintiff be provided a C-PAP machine to address his sleep apnea (Doc. # 67, Ex. 11).

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Moreover, Robertson makes much of the fact that Plaintiff was placed on a heart healthy diet in March of 2004. Plaintiff's medical records are devoid, however, of any evidence that weight loss was a prerequisite to having a second sleep study or receiving a CPAP machine.2 Indeed, Benjamin, during Plaintiff's initial examination, noted that Plaintiff was not overweight (Doc. # 67, Ex. 6). Robertson appears to argue that Plaintiff's weight was a significant contributing factor to his sleep apnea, but no other doctor made any reference to Plaintiff's weight.3 And even after Plaintiff lost fifteen pounds and presented sleep apnea symptoms, he still was not scheduled for a follow up sleep study for over one year. If Robertson believed that encouraging Plaintiff to lose weight could alleviate his sleep apnea symptoms, it is unclear why Plaintiff was not placed on a heart healthy diet until March 2004, when Robertson was aware of Plaintiff's sleep apnea symptoms in October 2001. Robertson has submitted evidence that (1) prescribing Plaintiff with a bed wedge and acid reflux medication to alleviate his symptoms and (2) referring Plaintiff for a pulmonary evaluation to determine if Plaintiff's symptoms were the result of a respiratory condition were within the standard of care (Doc. # 67, Ex. 1 at ¶¶ 5-7). What Robertson's evidence ignores, however, is that even after Plaintiff saw a pulmonary specialist on December 12, 2003, Plaintiff still did not receive a C-PAP machine for nearly 20 months. Robertson make no attempt to explain the necessity for such a prolonged delay. Instead, Robertson insists that no harm came to Plaintiff from such a delay. In fact, Robertson articulated that Plaintiff could have a C-PAP machine if a pulmonary specialist recommended it and a sleep study was conclusive for sleep apnea. Weight loss is not detailed anywhere in Plaintiff's medical records. Robertson argues that Plaintiff is obese. But Robertson has submitted two documents into evidence that list Plaintiff's BMI differently although those calculations are based on the same height and weight. See Doc. # 67, Ex. 6 at 3 (listing Plaintiff's BMI at 30.9); Doc. # 67, Ex. 7 at 1 (listing Plaintiff's BMI at 28.7). Robertson avers that a person is obese when his BMI exceeds 30. The Department of Health and Human Services, however, lists Plaintiff's BMI at 28.7 based on a height of 5 feet 11 inches tall and a weight of 200 pounds, which is the height and weight noted on all of Plaintiff's medical records. It is unclear where Robertson derived his calculation of Plaintiff's BMI. Regardless, the record does not support Robertson's determination that Plaintiff is obese.
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Finally, the Court also notes Robertson's repeated use of the phrase "subjective symptoms" to describe Plaintiff's sleep apnea. The Court has not found one shred of evidence in the record to indicate Plaintiff is a malingerer or exaggerated his symptoms. To the contrary, as already articulated, each one of Plaintiff's treating physicians took Plaintiff's sleep apnea seriously except for Robertson, the doctor with the power to provide Plaintiff with his obviously necessary treatment. As stated, a plaintiff may demonstrate deliberate indifference when an official denies, delays, or intentionally interferes with treatment or by the way that a medical professional provided the care. Jett, 439 F.3d at 1096. Here, it is clear from the record that it was Robertson who made the decisions regarding Plaintiff's treatment and, despite the numerous recommendations from all of Plaintiff's treating physicians, failed to take the appropriate steps to treat Plaintiff. Based on the evidence in the record, the Court finds material issues of fact regarding the treatment Plaintiff received for his sleep apnea, as directed by Robertson. c. Injury Robertson also makes much of the fact that Plaintiff has not produced evidence showing an injury as a result of waiting for a C-PAP machine. The Court disagrees for at least two reasons. First, injury is not the only way to demonstrate deliberate indifference. See Hunt, 865 F.2d at 201; Broughton, 622 F.2d at 460. Second, Greene noted in his July 1, 2003 consultation request to Robertson that Plaintiff had a sleep study 18 months prior that suggested sleep apnea and Plaintiff "now has high blood pressure" (Doc. # 67, Ex. 13). The Court finds that there is a material issue of fact whether Plaintiff suffered any injury resulting from the nearly four year delay in receiving a C-PAP machine. In sum, a reasonable trier of fact could infer that Robertson's failure to provide Plaintiff with a C-PAP machine, despite repeated medical findings that he was eligible, and Plaintiff's attempts to obtain such treatment pursuant to those medical findings, amounted to deliberate indifference. Accordingly, the Court finds that a genuine issue of material fact

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exists as to whether Robertson acted with deliberate indifference to Plaintiff's serious medical needs, precluding summary judgment as to him. 2. Benjamin In contrast to Robertson, the evidence in the record demonstrates that Benjamin was not deliberately indifferent to Plaintiff's sleep apnea. During the time Plaintiff was under Benjamin's care he examined, monitored, and treated Plaintiff consistent with the standard of care. Benjamin initially prescribed Plaintiff medication, a sleep wedge, and a bottom bunk to alleviate his sleep apnea symptoms. When Plaintiff did not receive his sleep wedge, Benjamin submitted another request on Plaintiff's behalf. Moreover, Benjamin facilitated Plaintiff's first sleep study, requested that Plaintiff be moved to a facility where C-PAP machines are permitted, and orchestrated all follow up testing as required by Robertson. Further, despite the fact that Plaintiff's first sleep study was not entirely conclusive, Benjamin still recommended that Plaintiff be placed on a C-PAP machine. Robertson's denial of that request does not render Benjamin deliberately indifferent. Rather, Benjamin's actions demonstrate his responsiveness to Plaintiff's sleep apnea. This conclusion is further bolstered by Plaintiff's deposition testimony. Plaintiff acknowledged that he was unaware of many of the actions Benjamin took on his behalf and that ultimately Benjamin acted reasonably and responded to Plaintiff's needs (Doc. # 65, Ex. 2 at 8-11). The objective facts in the record prevent any reasonable finder of fact from drawing the inference that the actions taken by Benjamin in treating Plaintiff were a deviation from the standard of care. To the contrary, the evidence presented by Benjamin conclusively shows that he did not know of and disregard a substantial risk of serious harm to Plaintiff related to his sleep apnea. Accordingly, Benjamin is entitled to summary judgment as a matter of law on this claim. IT IS ORDERED THAT: 1. Plaintiff's Motions to Disallow Alvin B. Elisco and Patricia Stapler as Expert Witnesses (Doc. ## 71, 77) are DENIED.
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2. Defendant Robertson's Motion to Strike Plaintiff's Exhibit 23 (Doc. # 112) is DENIED. 3. Defendant Benjamin's Motion for Summary Judgment (Doc. # 64) is GRANTED. Benjamin is dismissed with prejudice. 4. Defendant Robertson's Motion for Summary Judgment (Doc. # 66) is DENIED. 5. This case will proceed to jury trial as to Plaintiff's claim that Robertson was deliberately indifferent to his serious medical needs.

DATED this 26th day of March, 2007.

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