Bosse v. Dolan

MEMORANDUM DECISION AND ORDER - 1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL E. BOSSE,
Plaintiff,
v.
JAQLYNN DOLAN,
Defendant.
Case No. 1:21-cv-00176-DKG
MEMORANDUM DECISION
AND ORDER
Plaintiff Michael E. Bosse (Plaintiff) is proceeding on his Amended Complaint
(Dkt. 8) against registered nurse Jaqlynn Dolan (Defendant or Dolan), a former Idaho
Department of Correction (IDOC) interstate medical director. Dolan audited medical care
of Idaho prisoners confined in out-of-state facilities. Plaintiff asserts that Dolan is liable
for (1) Texas medical providers’ failure to treat his ear infection, knee problem, wrist
problem, blackout spells, and glaucoma; (2) Arizona medical providers’ failure to treat
his ear infection, knee problem, wrist problem, blackout spells, and glaucoma; and (3)
medical providers’ failure to provide him with proper medical care after his return to an
Idaho facility. See Dkt. 10 at 2, 5.
A court may take judicial notice of matters of public record. Fed. R. Evid. 201. A
court may take judicial notice of facts from other litigations, “depend[ing] in large
measure upon considerations of expediency and justice in the circumstances of the
particular case,” including “where the two cases represent related litigation.” Lowe v.
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McDonald, 221 F.2d 228, 230-31 (9th Cir. 1955); accord, United States v. Vasquez-
Guerrero, 554 F.2d 917 (9th Cir. 1977).
DEFENDANT’S SUMMARY JUDGMENT MOTION
1. Standard of Law and Defendant’s Theories of Defense
Summary judgment may be granted where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Material facts are those “that might affect the outcome of the suit.” Id. at 248.
“Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987).
To show that the material facts are not in dispute, a party may cite the record or
show that the adverse party is unable to produce admissible evidence to support a fact.
Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited materials,” but it
may also consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the parties. Although all reasonable inferences which can be drawn from the
evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec.
Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences
from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
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REVIEW OF RES JUDICATA DEFENSE:
TEXAS CLAIMS (EXCEPT WRIST AND BLACKOUT CLAIMS)
Defendant asserts that Plaintiff already adjudicated his claims of substandard
medical care in an earlier Texas lawsuit, and, therefore, res judicata applies.
1. Standard of Law
Under federal law, a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in that action.”
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Mpoyo v. Litton
Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005).
2. Discussion
A. Adjudication on the Merits
Federal Rule of Civil Procedure 41(b) specifies that all dismissals with prejudice
(except those for lack of jurisdiction, improper venue, or failure to join a party under
Rule 19) operate as an adjudication on the merits. Fed.R.Civ.P. 41. When a pro se
pleading is screened under 28 U.S.C. § 1915(e)(2), “the Court applies the same standard
as that for deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),” and thus, a
case dismissed with prejudice for failure to state a claim “constitutes a final judgment on
the merits.” Phan v. Olive Crest, 2022 WL 17162579, at *5 (C.D. Cal. Nov. 2, 2022),
report and recommendation adopted, 2022 WL 17155761 (C.D. Cal. Nov. 22, 2022),
aff'd, 2023 WL 6875420 (9th Cir. Oct. 18, 2023); Westcott v. Moon, 2024 WL 3379684,
at *2 (N.D. Ca. 2024) (same).
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On September 19, 2019, Plaintiff filed a lawsuit claiming that he received
substandard medical care while he was housed in Texas beginning in October 2018. See
Bosse v. Geo Group Inc., Case No. 2:19-cv-00055-AM-VRG (Case 55), filed in the
Western District of Texas. Case 55 was dismissed with prejudice and a final judgment
was entered on September 16, 2022. See Exhibits to this Order, Order of Dismissal and
Judgment in a Civil Case. The Court concludes that Case 55 is a prior final judgment on
the merits for res judicata purposes.
B. Same Parties or Privies
A person is in “privity” with a litigant when both have the same interests and
rights in the subject matter of a lawsuit. In re Schimmels, 127 F.3d 875, 881 (9th Cir.
1997) (citation and quotation marks omitted). Privity is a “flexible concept dependent on
the particular relationship between the parties in each individual set of cases....” Tahoe–
Sierra Pres. Council, 322 F.3d at 1081–82; see also Va. Sur. Co. v. Northrop Grumman
Corp., 144 F.3d 1243, 1247 (9th Cir. 1998) (“It is the identity of interest that controls in
determining privity, not the nominal identity of the parties.” (quotation marks and citation
omitted)).
The private company “GEO” operates the Eagle Pass Correctional Facility (EPCF)
where Plaintiff was held. GEO had a contract with the state of Idaho to house Idaho
prisoners. Plaintiff sued GEO administrative and medical staff and IDOC supervisory
administrators (Mr. Higgins and Mr. Hansen) for Eighth Amendment and medical
negligence violations. The inadequate supervision claims against the IDOC defendants
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included allegations that their colleague, Defendant Dolan, also inadequately supervised
GEO’s medical care. That Dolan’s work was at issue in Case 55 is clear because Plaintiff
included Dolan’s correspondence to him as an exhibit to his Texas complaint. See Exhibit
to Order, Texas Complaint, at 15.
The Court concludes that Defendants Mr. Higgins and Mr. Hansen in the Texas
suit and Dolan in this suit are privies because their interests and rights are the same: they
were all IDOC supervisory administrators who were overseeing Texas medical care of
Idaho prisoners. Dolan also is in privity with the GEO medical staff defendants to the
extent that Dolan’s liability is derivative of the GEO medical staff defendants’ liability:
Dolan could not have been deliberately indifferent if the GEO medical providers were not
deliberately indifferent.
C. Same Claims or Issues
The claims in the prior lawsuit must be the same claims in the present lawsuit.
Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996). The Court must consider: “(1)
whether rights or interests established in the prior judgment would be destroyed or
impaired by prosecution of the second action; (2) whether substantially the same
evidence is presented in the two actions; (3) whether the two suits involve infringement
of the same right; and (4) whether the two suits arise out of the same transactional
nucleus of facts.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992)
(citation omitted).
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In the Texas suit, Plaintiff’s claims were that the defendants “refused medical
treatment to my ear & legs, neglect, giving me someone else’s medication, gave me
dandruff shampoo for swelling in my legs & body, still sub-standard care for my
glaucoma.” Exhibit to Order, Texas Complaint, at 4. His legal theories included Eighth
Amendment deliberate indifference; mental and physical abuse and torture; malice;
medical negligence; and gross negligence. Id. at 5. He underlined deliberate indifference
in an attachment to his Texas complaint that explained that Eighth Amendment theory.
Id. at 11.
Because Plaintiff filed a motion for a preliminary injunction in the Texas case, he
was given additional opportunity to present evidence at a hearing to support the medical
claims in his complaint. See Exhibit to Order, Texas Motion for Preliminary Injunction.
In the order of dismissal, the Texas court adjudicated the following claims:
“complaints of an ear infection and how long it took to get an appointment with a
specialist; that he received another prisoner’s hydrocortisone cream and received a
medication he claims to be allergic to but that was not noted as an allergy in his medical
file; that he has suffered from an ear infection and leg swelling; that he was refused a
wheelchair; that he believes he received sub-standard care for glaucoma; and that he was
initially instructed to treat his leg swelling with dandruff shampoo.” Exhibit to Order,
Texas Order of Dismissal, at 8-9.
The Texas court concluded:
It is quite evident…that the Plaintiff has received
medical care and responses to his numerous medical requests
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MEMORANDUM DECISION AND ORDER - 7
and that EPCF officials were not deliberately indifferent to
his complaints. The Plaintiff’s allegations amount to nothing
more than disagreements with the treatment provided and
assertions and medical negligence. The Plaintiff himself
admitted at the hearing on his request for a preliminary
injunction that he is receiving medical care and that his claim
is for medical malpractice.
Exhibit to Order, Texas Order of Dismissal, at 9.
After entry of dismissal in Texas, Plaintiff attempted to persuade the court to alter
its judgment so that it would not negatively affect this and other cases. The Texas court
declined to do so. See Exhibits to Order, Texas Motion to Reconsider and Order.
In this action, Plaintiff brought Texas deliberate indifference claims arising from
2018 to August 2020, including complaints of swollen legs, blood and infection in his
inner ear, denial of a wheelchair, that he had been given someone else’s prescription, that
he had been given dandruff shampoo for swollen legs, and that he was past due for a
glaucoma examination. Dkt. 8 at 2.
The Court concludes that the Clark “same claims” factor is met. The IDOC
supervisors, including Dolan, are entitled to rely on the fact that claims against the GEO
medical providers and derivative claims against the IDOC supervisory officials for
Plaintiff’s Texas medical care were finally resolved. Their right to finality would be
impaired by another lawsuit. Substantially the same medical evidence was presented in
the two actions, including the Dolan letter, all of Plaintiff’s written complaints to GEO
and the IDOC, and Plaintiff’s medical records. The two suits are about an identical
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MEMORANDUM DECISION AND ORDER - 8
right—Eighth Amendment medical care. The claims arise out of the same transactional
nucleus of facts and from the same time period—2018 to August 2020.
3. Conclusion
The Court concludes that the Texas court’s decision (Case 55, Dkt. 59) constitutes
a final judgment on the merits of the same claims raised under the same legal theories
between the same plaintiff and defendants who are in privity with each other. If Plaintiff
disagreed with the Texas court’s decision, he had opportunity to appeal it. He did not.
Accordingly, Plaintiff is precluded from pursuing the Texas claims in this action,
including his claims that he is suffering from continuing injuries as a result of the lack of
care in Texas. See Dkt. 118, Plaintiff’s Response to Summary Judgment Motion. The time
to raise permanent injury claims was in the Texas case. The Texas judge did not enter a
final order until September 16, 2022, two years after Plaintiff’s transfer to Arizona.
Plaintiff could have sought leave to amend if he uncovered additional facts, claims, or
injuries. Res judicata applies to all related claims that could have been brought, not just
those that were.
Plaintiff also argues that res judicata should not apply because the Texas judge
“was pissed off and said get this Idaho crap out of my court room.” Id. at 13. But the
Texas judge decided that GEO medical staff were not deliberately indifferent to
Plaintiff’s health; therefore, by derivation, the Idaho defendants could not have been
deliberately indifferent in supervising the GEO medical staff. These Texas claims are
subject to dismissal with prejudice.
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EIGHTH AMENDMENT STANDARD OF LAW
The Eighth Amendment to the United States Constitution protects prisoners from
cruel and unusual punishment. To state a claim a plaintiff must show he was
“incarcerated under conditions posing a substantial risk of serious harm,” which is
analyzed under an objective standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(internal quotation marks omitted). He also must show the defendants were deliberately
indifferent to his needs—analyzed under a subjective standard. Id. at 838. “Deliberate
indifference” exists when an “official knows of and [recklessly] disregards an excessive
risk to inmate health or safety,” which means that an official “must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id.
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Medical negligence or malpractice alone will not support a claim for relief under the
Eighth Amendment. Broughton v. Cutter Lab, 622 F.2d 458, 460 (9th Cir. 1980).
A defendant can be held liable under § 1983 if she “knew of the violations and
failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A
prison administrator shows deliberate indifference to a prisoner’s medical needs if she
“knowingly fail[s] to respond to an inmate’s requests for help.” Peralta v. Dillard, 744
F.3d 1076, 1086 (9th Cir. 2014).
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A mere delay in treatment does not constitute a violation of the Eighth
Amendment, unless the delay causes serious harm. Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990).
REVIEW OF TEXAS EIGHTH AMENDMENT CLAIMS:
WRIST AND BLACKOUT CLAIMS
In Plaintiff’s Amended Complaint, he vaguely asserts that medical providers failed
to treat his wrist pain and blackouts at the Texas facility. Dkt. 8. These claims were not
among those decided by the Texas court and are not subject to res judicata.
Plaintiff has not pointed to anything in the medical records showing that he
brought these medical issues to medical providers’ or Dolan’s attention during his
confinement in Texas. Therefore, there is no genuine dispute of material fact preventing
the Court from concluding that Plaintiff was suffering from a serious medical condition
as to wrist pain and blackouts at that time (the record reflects these conditions occurred
much later, when he was re-housed in Idaho), or that Dolan was deliberately indifferent
to any such condition during his Texas confinement. These claims are subject to
summary judgment.
REVIEW OF ARIZONA EIGHTH AMENDMENT CLAIMS
Dolan contends that, because the Arizona medical care was constitutionally
adequate, she could not have been deliberately indifferent in her supervision of the care.
1. Plaintiff’s Medical Conditions and Claims in Context
Plaintiff developed symptoms of glaucoma in 2004 and was diagnosed by the
Veteran’s Administration in 2007. Dkt. 74 at 13. There is no cure for the disease, but
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glaucoma patients are prescribed eye drops to lower eye pressure on the optic nerve to
stop disease progression. High pressure can cause blindness. Id. The record reflects that
Plaintiff’s eye specialists generally recommended that his eye pressure be checked about
every three (Dkt. 74-8 at 5) to six months (Dkt. 74-5 at 4) and that he should be tested for
peripheral blindless and optic nerve damage annually.
The Court takes judicial notice that, several months before Plaintiff was
transferred from Texas to Arizona, “the World Health Organization (WHO) declared
COVID-19, the disease caused by the SARS-CoV-2, a pandemic.”1
In August 2020, Plaintiff was transferred to the Saguaro Correctional Facility in
Arizona. Dkt. 74-4 at 9. Plaintiff’s Arizona initial intake screening form shows
glaucoma/vertigo as a special health care need and a current medical complaint. Id.
On August 25, 2020, Plaintiff turned in a Health Services Request (HSR) form to
the Arizona medical unit. See reference in Dkt. 74-14 at 6.
On September 1, 2020, Plaintiff saw a doctor, who renewed Plaintiff’s
prescriptions for glaucoma. See Dkt. 74-14 at 6.
On September 4, 2020, Plaintiff wrote a grievance to Arizona staff, stating: “I
have glaucoma disease and will go blind if not maintained. I use eye drops for that to
regulate pressure on my optical nerve, you guys will not give me my eye drops. I asked
8/25/ 26/27 28 29 30 31. I turned in medical request 8/25 that was never answered. I did
see the doctor 9-1 and he said I’ll have the R.X. on Wed. here it is Thurs now looking at a
1 See https://www.yalemedicine.org/news/covid-timeline (accessed 12/20/2026).
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major holiday…. Please medicate me as per your contract and quit trying to kill me.”
Dkt. 74-14 at 6.
On September 11, 2020, Plaintiff wrote a concern form to Dolan: “Well, it has
been three weeks since my arrival @ Arizona, and they refuse to give me any eyedrops.”
Dkt. 74-14 at 21.
On September 22, 2020, the Arizona medical provider requested an “optomology”
[sic] consult to test eye pressures and peripheral. Dkt 75-2 at 31.
On September 26, 2020, Plaintiff’s prescription for Timolol Maleate
ophthalmology solution t was dispensed, refillable for eleven months. Dkt. 74-14 at 21.
On November 3, 2020, Plaintiff filed a concern form addressed to Dolan stating
that he had talked with her about a needed eye appointment, and it had been over a year
with no appointment. “I do realize this COVID is a major obstacle,” he noted. Dkt. 75-2
at 32. The IDOC response was: “You have a pending consult, many things are delayed
due to COVID.” Dkt. 75-2 at 32.
On November 8, 2020, Plaintiff filed a grievance with Idaho officials stating that
Arizona and Idaho officials refused to treat him; his last glaucoma treatment had been in
November 2019; and that the Del Rio, Texas eye doctor’s advice was that he should have
been seen three months after his November 2019 eye examination. He also asked for
reading glasses. Dkt. 74-13 at 16.
On November 23, 2020, Plaintiff mailed a grievance appeal stating he had not had
glaucoma treatment for 12 months, and had not had his glasses or medication updated.
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Dkt. 74-13 at 14.
On November 24, 2020, Arizona or Idaho officials responded to the grievance:
“You have a pending consult. if you would like reading glasses, submit a request to be
seen.” Dkt. 74-13 at 17.
On February 10, 2021, Dr. Kianoush Kian checked Plaintiff’s glaucoma at the
Advanced Laser & Eye Center of Arizona. Dr. Kian noted: “Has been taking glaucoma
drops for 12 years, but has not been given drops for the last ten days. Was stretching it
and ran out yesterday. Reports on Lisinopril tablets and Timolol drops.” Dkt. 75-2 at 29.
A conclusion of “[n]o glaucomatous damage” was noted on the tomography. Dkt. 74-6 at
3. Dr. Kian reported: “Stable glaucoma. Need upcoming visual field. Updated glasses
prescription.” Id. at 4. Dr. Kian further concluded: “His OCT2 does not reveal damage, so
he was caught early in the course of glaucoma.” Dkt. 74-6 at 10.
2. Discussion
A review of the medical treatment Plaintiff sought and received during his 10-
month incarceration in Arizona does not show that Arizona medical providers rendered
2 The Court takes judicial notice of the following definition:
Optical coherence tomography (OCT) and optical coherence tomography
angiography (OCTA) are non-invasive imaging tests. They use light
waves to take cross-section pictures of your retina.
With OCT, your ophthalmologist can see each of the retina’s distinctive
layers and the optic nerve fiber layer. This allows your ophthalmologist
to map and measure their thickness and changes over time. These
measurements help with diagnosis. They also guide treatment for
glaucoma….
See https://www.aao.org/eye-health/treatments/what-is-optical-coherence-tomography (accessed
2/19/2026).
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constitutionally inadequate care. His stay in Arizona was during the COVID-19
pandemic, when many health care visits were delayed as a cautionary effort to prevent
spread of the virus. He arrived in August 2020 and received an annual prescription for
necessary eye drops in September 2020. He was seen by an eye doctor in February 2021,
and his condition was stable; his examination did not reveal damage.
Plaintiff has not shown by a competent medical opinion that his eyesight was
damaged, or, if it was, that it was worsened by Dolan’s or any medical provider’s
personal participation in Plaintiff’s care.
The record does not reflect that Plaintiff contacted Dolan from Arizona about any
of his other medical conditions. Dolan is entitled to summary judgment because her
responses do not show that she drew an inference that her chosen course of action would
result in a serious risk of harm to Plaintiff’s health. The benefits of delaying non-
emergency medical treatment in the United States during the COVID pandemic often
outweighed the benefit of having a follow-up visit that might have caused the patient to
contract COVID-19 and die.
REVIEW OF IDAHO EIGHTH AMENDMENT CLAIMS
1. Overview
Plaintiff was returned to Idaho in March or April 2021, see Dkt. 74-4 at 13, and he
alleges that Dolan left her IDOC employment on April 1, 2021. Dkt. 79-4 at 10. Several
problems are evident with Plaintiff’s complaints from this time period.
Dolan did not work for IDOC after April 1, 2021, and Plaintiff’s Idaho complaints
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arose after April 1, 2021. Therefore, there is no causal connection between Dolan and
Plaintiff’s asserted injuries unless Plaintiff can show that Dolan’s deliberate indifference
from the Texas or Arizona time period caused the later Idaho injuries. As explained
earlier, permanent injuries from the Texas confinement period must have been asserted in
the Texas lawsuit. Ongoing injuries from that time period are barred by res judicata. As
to the Arizona confinement, the Court explained above that Plaintiff failed to provide
sufficient facts showing deliberate indifference to his medical needs; therefore, by
derivation, nothing Dolan did during that time frame could have caused his ongoing
injuries during his later Idaho confinement.
Dolan asserts that she was not responsible for directing Plaintiff’s medical care
once he arrived in Idaho, because her job was auditing out-of-state medical providers.
Dkt. 70-3 at 3. To the extent that Dolan’s last date of IDOC employment overlapped with
Plaintiff’s return to Idaho, Plaintiff has failed to show that Dolan had any personal
participation in his medical care, given that the focus of her work was out-of-state
prisoners’ medical care. A defendant may be held liable as a supervisor under § 1983 if
(1) he or she had “personal involvement in the constitutional deprivation,” or (2) “a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation” exists. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) (punctuation
altered and citation omitted).
Another issue is that, during the course of proceedings, Plaintiff seems to have
expanded the scope of the authorized Idaho claims from only his glaucoma condition (see
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Dkt. 10 at 2, 5) to many other conditions. Nevertheless, the Court will review all of the
medical care presented in the record. In the following timeline, the Court emphasizes
record references to Plaintiff’s loss of vision associated with glaucoma in italics.
2. Timeline of Idaho Complaints and Medical Care
On April 12, 2021, Plaintiff filed an HSR asking that Corizon, the Idaho medical
provider, obtain Arizona records regarding a bottom bunk permit and stating that he has
not been to a glaucoma doctor in 18 months. Dkt. 74-4 at 13. He actually had seen Dr.
Kian on February 10, 2021. At that time, Dr. Kian had renewed Plaintiff’s eyeglasses
prescription and had recommended the next eye pressure check-up be done in three
months. See Dkt. 74-8 at 5; 74-6 at 3; Dkt. 74-6 at 10; Dkt. 75-2 at 26-27. According to
Dr. Kian’s recommendations, May 2021 was the earliest time frame Plaintiff should have
seen an eye doctor for a check of his eye pressure. Other doctors recommend an eye
pressure check every six months (Dkt. 74-5 at 4), rather than every three months.
On May 27, 2021, Plaintiff reported that he had recently returned from Arizona
and had not seen an offsite optometry specialist for over 12 months. Therefore, this
complaint seems to be aimed at the fact he had not been provided the recommended
follow-up eye pressure check-up in May 2021.
Plaintiff asserts that the pressure in his eyes “was in the thirties, 30-32-36-34,”
when he returned to Idaho, causing permanent damage. Dkt. 74 at 13. He provides no
record citation for these figures and no opinion by any treating doctor showing that he
sustained permanent damage to his eyes as a result of the delayed eye pressure check-
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ups. By April 2022 (see below), Plaintiff’s pressure was within normal limits. Dkt. 74-5
at 4.
On June 1, 2021, Plaintiff filed an HSR saying, “I am due to see an eye doctor for
my glaucoma, and don’t have reading glasses for 1½ years now. Due to Mrs. Dolan,
Texas, Arizona being liable for this issue.” Dkt. 75-2 at 23. His current reading glasses
had been issued in 2018. See Dkt. 74-6 at 26.
On June 12, 2021, Plaintiff claimed that his wrist had been broken and healed with
no care from prison medical providers. Examination of the left wrist showed “ROM
stable, equal strengths, no swelling, discoloration loss of sensation or function.” Dkt. 75-
2 at 22.
On July 12, 2021, x-rays of Plaintiff’s right knee showed that his “results were
within acceptable limits” and “[n]o further action is needed.” Dkt. 75-2 at 17.
On August 19, 2021, Plaintiff complained of extreme vertigo and dizzy spells. He
was educated about how to use the Epley Maneuver Reposition exercises to combat
vertigo and will have a hearing test onsite. Dkt. 74-6 at 24.
In September 2021, Plaintiff submitted an HSR, stating he was “still using glasses
from 2018”; he “need[ed] glasses after 3 years”; and he needed a glaucoma visit after 2
years.” Dkt. 74-4 at 20. In addition, he had a physical therapy consult for his dizziness,
and “Dix Hallpike or Epley maneuver did not improve symptoms.” Dkt. 74-6 at 26.
On November 11, 2021, Plaintiff had new glasses ordered. Dkt. 74-4 at 26-27.
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On November 23, 2021, Plaintiff was seen in the sick call clinic for dry, cracked
skin and dizziness. He reported that he had dizzy spells for three years, had subsided to a
“2-3 out of 10” and currently occurred less frequently than they did before. He had dark,
dried cerumen (ear wax) in his right ear. The practitioner’s assessment contained several
potential causes of Plaintiff’s dizziness: secondary to impacted cerumen, chronic
sinusitis, permanent structure damage to inner ear from prior infection, or another cause.
Several solutions were to be tested to try to diagnose the cause and eliminate the
dizziness over the next 10 days. Dkt. 74-3 at 13.
On December 1, 2021, Plaintiff received his new prescription glasses and a case.
Dkt. 75-2 at 11.
On December 12, 2021, Plaintiff appeared in sick call complaining of right ear
pain. He “stated he was given ear drops to soften buildup, stated he had not been using
ear drops.” Dkt. 75-2 at 11. Plaintiff’s ear was flushed out in sick call, and a large amount
of black buildup flushed out. Plaintiff asked to stop the flushing because of pain. He was
encouraged to use ear drops and wash his ears during showering, and he was given a box
of Tylenol tablets for pain. Id.
On December 23, 2021, Plaintiff reported that he finished the antibiotics and had
his ears irrigated, but he still has dizziness and ear pain. He checked on the status of his
hearing test. Dkt. 74-3 at 19.
On January 4, 2022, Plaintiff was seen at Lifetime Optometry. He was prescribed
Latanoprost and Timolol drops indefinitely, and he admitted “to poor compliance.” Dkt.
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74-5 at 4. His intraocular pressures were within normal limits. Id. The provider discussed
the possible ramifications of non-compliance and recommended rechecking intraocular
pressures every six months. Id.
On March 26, 2022, following complaints of wrist pain, Plaintiff received an x-
ray. The left wrist x-ray showed: “No fracture. No dislocation. Normal joint alignment.
Normal joint spaces. Impression: Negative left wrist radiographs.” Dkt 75-2 at 16.
On April 26, 2022, Plaintiff had an eye examination by Richard Murray, an
optometrist at Lifetime Optometry. Dkt. 74-5 at 4. The report shows that Plaintiff’s
diagnosis was Primary Open Angle Glaucoma (POAG), that he was prescribed
Latanoprost and Timolol indefinitely, and that he admitted to poor compliance. Id.
Findings included superior vision field loss consistent with advancing glaucoma, thinning
retina nerve fiber layer, and normal intraocular pressures. Id. The plan was to encourage
compliance with glaucoma medications (Latanoprost and Timolol), and recheck
intraocular pressure every six months and automated visual fields annually. Id.
On May 20, 2022, Plaintiff asked the Idaho prison medical unit to create from his
medical records a comprehensive analysis for his eye damage that occurred between 2020
and May 2022. Dkt. 74 at 5.
On August 19, 2022, Plaintiff had an optometry examination with prison
optometrist Russell Gray. Plaintiff was advised to have his eye pressure checked every
six months and return to Lifetime Optometry once a year for glaucoma specialty testing,
and to continue taking his eye drops. Dkt. 75-1 at 7.
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MEMORANDUM DECISION AND ORDER - 20
On September 8, 2022, he reported recurring “sun poisoning” symptoms. His
request was triaged. Dkt. 74-3 at 24.
On September 12, 2022, Plaintiff consulted with an ENT specialist regarding
chronic dizziness/vertigo; various recommendations were made. Dkt. 74-5 at 14.
On September 20, 2022, Plaintiff reported that he was dizzy, nauseous, and losing
his balance; that meclizine was not working but was prescribed to him again; and that he
would like a different medication instead. His request was triaged. Dkt. 74-3 at 25.
On May 5, 2023, the WHO’s emergency committee on the COVID-19 pandemic
recognized the end of the worldwide pandemic.3
On July 25, 2023, Plaintiff had another glaucoma exam by Dr. Murray at Lifetime
Optometry. Dkt. 74-5 at 7. His retina nerve fiber layer showed thinning; he had
significant superior visual field loss. Id. at 9. His prescriptions were continued
indefinitely. He was advised to have a recheck every six months. Id. Dkt. 74-5 at 9.
On August 14, 2023, Plaintiff had a “normal ear exam,” and it was recommended
that he proceed with VNG testing and an audiogram, and that he have a consultation with
a gastroenterologist regarding his reflux. Dkt. 74-5 at 25.
On August 21, 2023, Plaintiff had an office visit in which Dr. Jacob Majors
removed cerumen from Plaintiff’s ears. Dkt. 74-5 at 22.
3 See https://www.who.int/news/item/05-05-2023-statement-on-the-fifteenth-meeting-of-the-international-
health-regulations-(2005)-emergency-committee-regarding-the-coronavirus-disease-(covid-19)-
pandemic?adgroupsurvey=%7Badgroupsurvey%7D%26gclid=EAIaIQobChMI4Ojtsdbe
_gIVjQRyCh07igt4EAAYASACEgJ9pfD_BwE%26fbclid=IwAR2M8EAyiSrAodhK9p-
X582nHkP2AigpSX8pYIsLsPwqYh4SG26RGokGe7E (accessed 2/17/2026).
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MEMORANDUM DECISION AND ORDER - 21
On December 21, 2023, Plaintiff had another glaucoma exam by Dr. Murray at
Lifetime Optometry. 74-7 at 5. His intraocular pressures were within normal limits. He
had the same diagnosis and prescriptions, and admitted again to poor compliance; the
doctor again discussed the possible ramifications of non-compliance and recommended
checking eye pressure every six months. Dkt. 74-5 at 7.
On October 24, 2023, Plaintiff told the medical provider he had not been seen for
dizziness. The medical provider informed him that he was not seen because he refused to
see another provider for his visit. The medical provider educated him that he is not
allowed to pick which provider to see, and discussed potential vestibular testing to help
determine a cause of his dizziness. Dkt. 75-2 at 13.
On December 17, 2023, Plaintiff had a brain MRI at St. Luke’s regarding his
dizziness and blackouts. No acute intracranial abnormality was found. The report
reflected the following: “Scattered small cerebral white matter lesions nonspecific, but
common incidental finding in this age usually attributable to chronic small vessel
disease.” Dkt. 75-5 at 19.
On December 21, 2023, Plaintiff had a follow-up visit with a doctor at Lifetime
Optometry. “Superior visual field loss OU consistent with advancing glaucoma” was
found. Intraocular pressures were within normal limits. Dkt. 74-5 at 7. Plaintiff admitted
to noncompliance with the medications. Dkt. 74-5 at 6.
On February 2, 2024, Plaintiff had a sick call visit with Chandra King. Plaintiff’s
vertigo condition was “referred to UM Team for review.” Vestibular testing was
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MEMORANDUM DECISION AND ORDER - 22
approved and scheduling started. Dkt. 74-7 at 2.
On February 26, 2024, Plaintiff had a sick call visit with Chandra King. He stated
that his vertigo had increased, and he had used “PO medications, meclizine and
Benadryl,” and he stated that “he probably didn’t give the meclizine time to work as he
had only taken it a few times.” Dkt. 74-6 at 2. King’s notes stated: “reported chronic
vertigo of unknown etiology; DDX of central vertigo vs. peripheral vertigo vs. Meniere’s
vs. Vestibular Neuronitis vs. BPPV.” Dkt. 74-7 at 2.
On March 11, 2024, Plaintiff had a chronic care follow-up visit. The record shows
that he “insisted that we need to continue with the ‘prognosis’ of his vertigo, that he had
been seen by 7 providers and no one can say what is happening to him. He stated he
needed his prescription meclizine to walk, but also reported it was too strong for him and
that it affected him like Haldol. The provider was unable to assess him for vertigo
because his gait was stable and normal entering and exiting the clinic, and his movements
were smooth, and no symptoms were reported during the visit.” Dkt. 74-3 at 17.
On March 21, 2024, Plaintiff went to sick call to discuss his vertigo. He reported
meclizine was not helping reduce his dizziness and asked for it to be discontinued. Dkt.
74-7 at 4. Plaintiff reported, “NP Rogers with Centurion, ISCI, once said he believes
there may be nothing anyone can do with me, and to deal with the damaged crystals.” Id.
In March 2024, Plaintiff reported no recent vision changes, saying “I see black
spot but was told that was glaucoma.” Dkt. 74-8 at 14.
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On May 7, 2024, Plaintiff had a glaucoma examination with optometrist Stephanie
Warden. Dkt. 74-4 at 24; 74-5 at 3. Dr. Warden reported:
Confirmed patient is currently instilling Timolol BID
and ordered Latanoprost QHS OU as notated in previous
consult records. IOP slightly above average today and patient
states no Timolol instilled prior to visit….. Glasses updated
and ordered.
Dkt. 74-5 at 3 (emphasis added). He was also diagnosed with “unspecified separation of
retinal layers.” Id. There is no cause or specific treatment noted in the medical record.
Plaintiff also complained of dry eyes, and the optometrist ordered “AT gel” for him. Id.
In June 2024, Plaintiff saw Dr. Rebecca Ballard, who said that vertigo can be a
chronic problem that is very difficult to treat with medication. She wrote, “Patient was
satisfied with the understanding that he may have to live with it and there was not a good
treatment for it.” Dkt. 74-7 at 10.
3. Discussion
On the foregoing record, Plaintiff has not shown that Dolan had anything to do
with Plaintiff’s Idaho care. Due to no fault of anyone, Plaintiff’s eye care was interrupted
by the COVID-19 pandemic in 2020-2021. Plaintiff has not shown that Dolan acted in a
deliberately indifferent manner that caused Plaintiff’s superior visual field loss that was
consistent with advancing glaucoma detected in 2022, 2023, and 2024. On this record,
Plaintiff’s visual loss could have been caused by the natural progression of glaucoma or
Plaintiff’s failure to use the eyedrops regularly, which is noted in his medical records in
multiple years by different outside providers.
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MEMORANDUM DECISION AND ORDER - 24
The fact that Plaintiff had a difficult-to-diagnose dizziness/vertigo/ blackout issue
does not make the Idaho medical providers’ care deliberately indifferent. Rather, the
record shows that practitioners brainstormed different diagnoses, performed different
tests to try to find a solution to his dizziness and blackouts (including an MRI), and
offered different solutions, including medication and physical therapy. See, e.g., Dkt. 75-
2 at 6-7. No medical opinion in the record shows that any permanent injury resulted from
the timing and manner of treatment for the ear problems that began in Texas (treatment
was requested in October and provided in December), rather than from aging, the effect
of a chronic buildup of cerumen (earwax), or a nonpreventable cause.
As to Plaintiff’s other complaints of lack of care, the Idaho wrist and knee x-rays
showed that no further treatment was indicated.
In fact, the lengthy record and the summary of Plaintiff’s medical care set forth
above shows that Plaintiff received constitutionally adequate care for his other medical
conditions from January 2019 forward. All of Plaintiff’s claims are subject to summary
judgment, and this entire case will be dismissed with prejudice.
ORDER
IT IS ORDERED that Defendant’s second Motion for Summary Judgment (Dkt
113) is GRANTED for the reasons set forth above, and all claims are DISMISSED with
prejudice. The Court will not entertain any further argument on any of these claims.
Plaintiff may file a notice of appeal in this Court if he desires the Ninth Circuit Court of
Appeals to review this case.
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DATED: February 20, 2026
_________________________
Honorable Debora K. Grasham
United States Magistrate Judge
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