Appendix — Bellecourt v. United States

93-622 Rae

Ae OCT 18 1993

OFFICE OF IKE CLERK

No. 92-1818

IN THE SUPREME COURT OF THE»UNITED-..STATES.

October Term 1993

CLYDE BELLECOURT,

Petitioner,

vs.

UNITED STATES OF AMERICA, FEDERAL

BUREAU OF PRISONS, J. MICHAEL QUINLAN,

THE FEDERAL MEDICAL CENTER,

ROCHESTER, MINNESOTA, DR. MICHAEL

TRUJILLO, CLIFF FRIESE, PETER CARLSON,

DR. ALAN WYNNE, AND SARAH URRISTE,

Respondents,

APPENDIX TO PETITIONER’S

PETITION FOR WRIT OF CERTIORARI

LARRY B. LEVENTHAL, ESQ.

Counsel of Record for Clyde H. Bellecourt

Suite 420 ~- Sexton Building

529 South Seventh Street

Minneapolis, Minnesota 55415

Telephone: (612) 333-5747

Douglas Hall

808 Franklin Avenue East

Minneapolis, Minnesota 55404

PUBLISHER'S NOTE:

THE FOLLOWING PAGES WERE UNAVAILABLE FOR FILMING:

Aq- 30, 34, (04

No. 92-1818

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1993

CLYDE BELLECOURT,

Petitioner,

vs.

UNITED STATES OF AMERICA, FEDERAL

BUREAU OF PRISONS, J. MICHAEL QUINLAN,

THE FEDERAL MEDICAL CENTER,

ROCHESTER, MINNESOTA, DR. MICHAEL

TRUJILLO, CLIFF FRIESE, PETER CARLSON,

DR. ALAN WYNNE, AND SARAH URRISTE,

Respondents,

APPENDIX TO PETITIONER’S

PETITION FOR WRIT OF CERTIORARI

—_>—

LARRY B. LEVENTHAL, ESQ. —-

Counsel of Record for Clyde H. Bellecourt

Suite 420 - Sexton Building

529 South Seventh Street

Minneapolis, Minnesota 55415

Telephone: (612) 333-5747

Douglas Hall

808 Franklin Avenue East

Minneapolis, Minnesota 55404

APPENDIX

TABLE OF CONTENTS

Order of May 14, 1993

Order of July 19, 1993

- Denial of Petition

Order of Judge David S. Doty

February 10, 1992 —

Complaint ......

Medical Records ........

Interview of Alan Wynne .

Affidavit of Clyde Bellecourt

Affidavit of Margaret Penn ..

Affidavit of Lynn Solberg

Affidavit of Larry B. Leventhal

Affidavit of Expert Review

Affidavit of Identification

a

Deposition of Juli W. Alba

Deposition of Dr. Daniel Foster

Deposition of John Chreno.. .

PAGE

105

192

233

285

297

303

312

331

333

346

351

387

Affidavit of Ray Howe ...... 399

Supplemental Affidavit of

Eyam SOLbO@rg « «2 -e ese ce $02

Supplemental Affidavit of

Larry B. Leventhal ...... 405

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 92-1818/2002

Clyde H. Bellecourt,

Appellant/

Cross~appellee,

Vv.

United States of

America; Federal

Bureau of Prisons;

J. Michael Quinlan,

Director of Federal

Prisons, Washington,

D.C., in his official

capacity; Federal

Medical Center,

Rochester, Minnesota,

a division of the

Federal Bureau of

Prisons; Peter

Carlson, Warden,

Federal Medical

Center, Rochester,

Minnesota, in his

official capacity;

Dr. Michael Trujillo,

Medical Director,

Federal Medical

Center, Rochester,

Minnesota, in his

+e eee ee eee eee EEE UU Ul ll Oe

Appeals from

the United

States District

Court for the

District of

Minnesota

official capacity;

Cliff Friese,

Lieutenant, Federal

Medical Center,

Rochester, Minnesota,

in his official and

individual capacities;

Dr. Alan Wynne,

Resident Physician, in

his individual capacity

and his official

capacities as resident

physician for Mayo

Foundation and as an

employee of the Federal

Medical Center,

Rochester, Minnesota;

Sarah Urriste,

Physicians’ Assistant,

in her individual

capacity and in her

official capacities as

Physicians’ Assistant

for Mayo Foundation

and as an employee of

the Federal Medical

Center, Rochester,

Minnesota,

Appellees/

Cross~appellants.

+ * £ 4 ££ + FF FF HH HH HH HEE EE RR

Submitted: December 16,

Filed: May 14,

1993

1992

Before McMILLIAN, BOWMAN and LOKEN,

Circuit Judges.

McMILLIAN, Circuit Judge.

Clyde H. Bellecourt appeals from an

order entered in the United States

District Court for the District of

Minnesota’ granting Summary judgment to

appellees in favor of the federal

appellees’ and appellee Dr. Alan Wynne on

his civil rights claims and in favor of

'The Honorable David Ss. Doty, United

States District Judge for the District of

Minnesota.

*The federal appellees were the United

States, the Federal Bureau of Prisons,

J.Michael Quinlan (the director of the

Federal Bureau of Prisons), the Federal

Medical Center at Rochester, Minnesota,

and certain individual staff members at

the Federal Medical Center at Rochester--

medical director Dr. michael Trujillo,

prison officer Cliff Friese, warden Peter

Carlson, and physician’s assistant Sarah

Urriste.

Dr. Wynne on his state medical malpractice

Claim and dismissing his Federal Tort

Claims Act (FTCA) clain. Bellecourt v.

United States, No. 4-89-828, slip op. at 1

(D. Minn. Feb. 10, 1992) (Bellecourt).

For reversal appellant argues the district

court erred in (1) finding he did not

properly present his FTCA claim to the

appropriate federal agency, (2) finding

the federal appellees and Dr. Wynne were

not deliberately indifferent to his

serious medical needs and the federal

appellees did not discriminate against him

o the basis of race or political

affiliation in providing medical treatment

Or in making work assignments, and (3)

finding he did not comply with certain

State law requirements for filing a

medical malpractice claim. For the

reasons discussed below, we affirm the

Order of the district court. Given our

disposition of the appeal (No. 92-1818),

we do not reach the merits of Dr. Wynne’s

self-styled cross-appeal (No. 92-2002) and

accordingly dismiss that appeal as moot.

I.

Appellant, a former inmate of the

Federal Medical Center at Rochester,

Minnesota (FMC), serving a five-year term

for distribution of LSD, on September 16,

1987, at about 12:30 a.m., complained of

chest pains. Dr. Wynne, the doctor on

duty, physically examined appellant and

diagnosed him as having indigestion and

gastritis. Dr. Wynne gave appellant an

antacid and left after the antacid

appeared to relieve appellant’s pain,

advising him to notify an officer if he

needed further attention. An officer

checked on appellant very hour throughout

the night and found appellant Sleeping.

Appellant did not request further medical

assistance.

Appellant appeared for sick call the

next morning where an EKG was run and

blood was drawn. The EKG showed that a

heart attack had occurred earlier that

morning, but was not occurring while he

was in the clinic. Appellant Subsequently

reported for a scheduled dental

appointment in the Outpatient clinic.

Appellant filed suit September 18, 1989,

against the federal appellees and Dr.

Wynne, seeking damages’. for physical

injury, emotional injury, pain and

suffering, medical malpractice, and

unlawful discrimination. Appellant

contended the collective acts and

omissions of the federal appel S and Dr.

Wynne constituted negligence, medica]

malpractice, and deliberate and wilfu]

indifference to his health and safety

resulting in the unnecessary and wanton

infliction of physical injury, permanent

heart damage, pain and suffering.

Appellant also alleged a FTCA clain.

The district court granted the

federal appellees’ motion for dismissal of

appellant’s FTCA clain, granted the

federal appellees’ and Dr. Wynne’s motions

for summary judgment on appellant’s civil

rights claims, and granted Dr. Wynne’s

motion for summary judgment on appellant’s

medical malpractice claim. The district

court found Dr. Wynne to be an independent

contractor rather than a federal employee

and as such, the district court stated Dr.

Wynne was not an appropriate party to the

FTCA claim but was for the civil rights

and medical malpractice claims.

Bellecourt, slip op. at 6. The district

court found appellant had not properly

presented his FTCA claim because he did

not prove his "request for administrative

remedy" had been actually received. Id.

at 9. Regarding appellant’s civil rights

claims, the district court found appellant

did not prove deliberate indifference on

behalf of the federal appellees or Dr.

Wynne. Id. at 24. Appellant’s state law

medical malpractice claim was dismissed

because he failed to Satisfy the expert

affidavit requirements of Minn. Stat. §

145.682 and because he did not demonstrate

excusable neglect for not doing so. Id.

at 25-37. This appeal and cross-appeal

followed.

II.

In reviewing the district court’s

grant of summary judgment for the federal

appellees and Dr. Wynne, we examine the

facts in the light most favorable to

appellant. Our standard of review is de

novo. Fed. R. Civ. P. 56(c); see, e.q.,

Celotex Corp. v. Catrett, 477 U.S. 3

322-23 (1986); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986); St.

Paul Fire & Marine Ins. Co. v. Federal

Deposit Ins. Corp., 968 F.2d 695, 699 (8th

Cars 1992); Get Away Club, ioe,

Coleman, 969 F.2d 664, 666 (8th Cir.

1992). With regard to the FTCA claim, the

district court granted the federal

appellees’ motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(1), for lack of

jurisdiction. Because jurisdiction is a

threshold issue for the _ court, the

district court has "broader power to

decide its own right to hear the case than

it has when the merits of the case are

reachec." Osborn v. United States, 918

F.2d 724, 729 (8th Cir. 1990). In the

present case, the attack on jurisdiction

was factual and this court must review the

district court’s findings under’ the

clearly erroneous standard. Id. at 730.

Appellant first contends the district

court erroneously dismissed his FTCA claim

against the federal appellees for

inadequate presentment because he failed

to show the federal appellees actually

received his administrative claim.

Appellant argues the district court

improperly placed the burden of proving

presentment on him and failed to follow

the rule that a letter when placed in the

mail is presumed to be delivered and

received. The presumption of receipt can

be rebutted by evidence of non-receipt,

which appellant argues should have been

required of the federal appellees.

The federal appellees argue that

appellant failed to comply with

jurisdictional requirements of the FTCA

and did not use the appropriate forms for

filing an administrative claim. The FTCA

is a limited waiver of sovereign immunity

which requires compliance with the

conditions enacted by Congress. These

conditions are construed Narrowly and

include the requirement that before filing

an FTCA action the claimant "present" an

administrative claim requesting a sum

certain in damages to the appropriate

federal agency and that the claim be

finally denied. 28 U.S.c. § 2675(a).

Presentment of an administrative

claim is jurisdictional and must be

pleaded and proven by the FTCA claimant.

See, e@.g., Bailey v. United States, 642

F.2d 344, 347 (9th Cir. 1981); Melo vy.

United States, 505 F.2d 1026, 1028-29 (8th

Cir. 1974). In the present case it is

undisputed that (1) appellant sent a

"request for administrative remedy" to the

associate warden at FMC; (2) appellant

intended to comply with the FTCA despite

the use of the incorrect form for a FTCA

Claim; (3) the "request for administrative

remedy" was not mailed by certified mail;

(4) the "request for administrative

remedy" was not received by the Federal

Bureau of Prisons; and (50 the "request

for administrative remedy," although

prepared by counsel, did not request money

damages.

The district court found that

appellant failed to establish actual

presentment and dismissed the FTCA claim

against the federal appellees for lack of

jurisdiction, Bellecourt, Slip op. at 9;

we hold the district court’s finding was

not clearly erroneous.

III.

Appellant next contends that the

district court misapplied the standard for

finding Fifth and Eighth Amendment

violations and erred in finding the

federal appellees and Dr. Wynne were not

deliberately indifferent to his serious

medical needs and the federal appellees

did not discriminate against him on the

basis of race or political affiliation in

providing medical treatment or in making

work assignments. Id. at 17-24.

Appellant argues the district court

improperly assumed that’ the alleged

instances of inattention to his medica]

needs amounted to professional decisions

constituting proper treatment. Appellant

contends the district court erred by not

considering the combination of actions by

the federal appellees and Dr. Wynne as

constituting deliberate indifference.

Appellant also alleges the federal

appellees violated his due process and

equal protection rights because he is a

Native American and a_ known political

activist who, even though he was over the

age of 50, was assigned to work in food

service at FMC in violation of FMC policy.

In addition, appellant claims medica]

treatment at FMC was administered in a

discriminatory manner.

The federal appellees argue that the

district court correctly found that

appellant failed to provide specific proof

of purposeful discrimination in the

provision of medical treatment. They also

contend appellant’s conclusory allegation

regarding his work assignment is

inadequate to prevent entry of summary

judgment and in any event appellant has no

constitutional right to a particular work

assignment in prison. The federal

appellees also argue appellant failed to

specifically allege prison officials

conspired to deprive appellant of equal

protection of the laws as required by 42

U.S.C § 1985(3).

The district court found the record

showed that the federal appellees and Dr.

Wynne were not deliberately indifferent to

appellant’s serious medical needs.

Bellecourt, slip op. at 23. We agree.

The fact that Dr. Wynne misdiagnosed the

appellant’s condition, that his method of

physical examination and treatment may not

have followed community standards, or that

he disagreed with appellant’s suggested

course of treatment does not amount to

deliberate indifference in violation of

the Eight Amendment. Estelle v. Gamble,

429 U.S. 97, 106 (1976); Smith v. Jenkins,

919 F.2d 90, 93 (8th Cir. 1990); Randall

Vv. Wyrick, 642 F.2d 304, 308 (8th Cir.

1981). The district court also found that

beyond bare allegations of violations of

his civil rights because appellant is a

Native American and politically active,

appellant provided no facts to support his

claims of discrimination or conspiracy.

We hold the district court did not err in

granting summary judgment in favor of the

federal appellees and Dr. Wynne on

appellant’s civil rights claims.

Iv.

Appellant next argues the district

court improperly dismissed his pendent

state law medical malpractice claim

against Dr. Wynne. The district court

found that appellant did not present an

expert affidavit within the time limits of

Minn. Stat. § 145.682,) and failed to

‘The statute has two specific expert

affidavit requirements--the first expert

affidavit must accompany the service of

neil

establish excusable neglect; therefore,

the district court dismissed the Claim

with prejudice. Bellecourt, Slip op. at

25-34. Appellant argues the state law

does not require an expert affidavit if

expert testimony is not necessary to

establish liability, and that expert

testimony was not needed in the present

case because the symptoms and treatment

for a heart attack are well known. See

Miller _v. Raaen, 139 N.W.2d 877, 880

(Minn. 1965) (summary of medical

malpractice cases were expert testimony

the medical malpractice summons and

complaint, the second expert affidavit

must be served within 180 days of the

commencement of the lawsuit. Minn. Stat.

§ 145.682. The statute specifically

informs litigants that unexcused

noncompliance will lead to dismissal with

prejudice of each cause of action as to

which expert testimony is necessary to

establish a prima facie case.

- 18 -

not needed to- establish liability).

Appellant further contends that his

noncompliance can be remedied by extending

the time to file an expert affidavit.

Dr. Wynne argues the district court

correctly decided that appellant did not

establish excusable neglect for his

failure to timely file the required expert

affidavits and that expert testimony was

necessary for appellant to pursue this

action. We agree. Appellant’s claim that

Dr. Wynne failed to properly diagnose his

heart attack is not the kind of case where

the alleged negligence "speaks for itself"

without expert medical Opinion. See Todd

Vv. _Eitel Hospital, 237 N.W.2d 357, 361

(Minn. 1975) (Distinguishing failure to

properly diagnose malignancy, which would

require expert testimony, from having a

Sponge inside body following surgery,

which would not). We hold the district

court did not err in dismissing

appellant’s medical malpractice claim with

prejudice.

V.

Appellant also argues that the

federal appellees and pr. Wynne violated

the requirements of Minn. Stat. § 144.651,

the state medical "bill of rights." He

argues summary judgment was not

appropriate because genuine issues of

material fact existed. The district court

found that summary judgment was warranted

because, beyond a general allegation that

the federal appellees and pr. Wynne had

violated this Statute, appellant neither

Stated which provision of the Statute was

violated nor provided any specific facts

Supporting his allegations. Bellecourt,

Slip op. at 25. We agree that appellant

did not establish sufficient facts to

raise a genuine issue for trial, and hold

the district court did not err in granting

summary judgment in favor of the federal

appellees and Dr. Wynne.

Accordingly, we affirm the Order of

the district court dismissing appellant’s

FTCA claims, and granting summary judgment

On appellant’s other claims. Given our

disposition of the appeal (no. 92-1818),

we do not reach the merits of pr. Wynne’s

self-styled cross-appeal (No. 92-2002) and

dismiss that appeal as moot.

A true copy.

Attest:

CLERK, U.S. COURT OF

APPEALS, EIGHTH CIRCUIT.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-1818MNMI

Clyde H. Bellecourt, *

”

Appellant, * Order Denying

* Petition for

vs. * Rehearing and

* Suggestion for

United States of * Rehearing En

America, * Banc

+

Appellees. *

The suggestion for rehearing en banc

is denied. The petition for rehearing is

also denied.

July 19, 1993

Order Entered at the Direction of the

Court:

/S /

Clerk, U.S. Court of Appeals, Eighth

Circuit

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Clyde H. Bellecourt, Civil No. 4-8

Vv.

Plaintiff,

United States of America, et al.,

Defendants.

Larry B. Leventhal, Esq., Suite

420 Sexton Building, 529 South

Seventh Street, Minneapolis, MN

55415 and Douglas Hall, Legal

Rights Center, 808 Franklin

Avenue East, Minneapolis, MN

55404, counsel for plaintiff.

Thomas Heffelfinger, United

States Attorney and Lonnie F.

Bryan, Assistant United States

Attorney, 234 U.S. Courthouse,

110 South Fourth Street,

Minneapolis, MN 55401, counsel

for federal defendant.

Leo G. Stern, Esq., Laurie J.

Miller, Esq. and Fredrikson &

Byron, P.A. 1100 International

Centre, 900 Second Avenue South,

Minneapolis, MN 55402, counsel

for defendant Wynne.

9-828

ORDER

This matter is before the court on

the federal defendants’ motion for

dismissal or, in the alternative, for

summary judgment and on defendant Wynne’s

motion for partial summary judgment.

Based on the files, records and proceeding

herein, the federal defendants’ motion for

dismissal on plaintiff’s federal tort

Claim will be_- granted, the federal

defendants’ motion for summary judgment on

plaintiff’s other claims against the

federal defendants will be granted and

defendant Wynne’s motion for summary

judgment will be granted.

BACKGROUND

Plaintiff Clyde H. Bellecourt asserts

causes of action for negligence, medical

malpractice, violation of due process,

cruel and unusual punishment, civil rights

- 24 -+

violations under 42 U.S.C. § 1981 and 42

U.S.C. § 1985(c), Statutory violations,

and violation of various duties owed to

him. Those causes of action stem from two

alleged incidents of mistreatment

plaintiff claims occurred while he was

incarcerated in the Federal Medical Center

in Rochester, Minnesota ("FMC") in 19867.

First, plaintiff, who is over fifty years

Old, claims that he was assigned to work

in the FMC kitchen in contravention of a

prison policy that states that persons

over fifty are not required to work in the

kitchen. Second, plaintiff claims that he

Suffered a heart attack on September 16,

1987, and that prison officials and the

physician at FMC deliberately ignored his

requests for treatment of his painful

ailment.

Defendant Dr. Wynne moves for summary

judgment on all claims of medical

malpractice against him on the grounds

that plaintiff failed to submit timely

affidavits of expert review as required by

Minn. Stat. § 145.682. The federal

defendants move for dismissal on various

grounds or, in the alternative, for

Summary judgment on all claims against

them.

The court heard oral arguments on

those motions on March 1, 1991. On March

6, 1991, the court issued a preliminary

order regarding plaintiff’s negligence

claims against the government.! The court

ruled that before it could consider

defendants’ motions as they applied to the

‘See Bellecourt v. United States, No.

4-89-828 (D. Minn. Mar. 6, 1991).

- 26 -

merits of plaintiff’s Claims, the court

had to decide the threshold jurisdictional

issue of whether piaintiff properly

presented his negligence claims to the

appropriate federal agency, as required by

the Federal Tort Claim Act ("FTCA"). The

FTCA requires that a plaintiff Satisfy the

presentment requirement before the court

may exercise jurisdiction over the Claim.’

°28 U.S.C. § 2675(a) provides in

pertinent part that:

An action shall not be

instituted upon a claim against

the United States for money

damages for injury or loss of

property or personal injury or

death caused by the negligent or

wrongful act or omission of any

employee of the Government while

acting within the scope of his

office or employment, unless the

Claimant shall have first

presented the claim to the

appropriate Federal Agency and

his claim shall have been

finally denied by the agency in

writing and sent by certified or

- 27 -

See Melo v. United States, 505 F.2d 1026,

1028-29 (8th Cir. 1974). The presentment

requirement is satisfied Only when the

appropriate federal agency actually

receives the clainm.?

registered mail.

“ae ©... § 14.2(a) entitled

"Administrative Claim; When Presented"

Supplements 28 U.S.C. § 2675(a) and

provides in pertinent part:

For purposes of the provisions

of 28 U.S.C. 2401(b), 2672, and

2675, a claim shall be deemed to

have been presented when a

Federal Agency receives from the

Claimant, his duly authorized

agent or legal representative,

an executed Standard Form 95 or

other written notification of an

incident....

See also Drazan v. United States, 762 F.2d

56, 58 (7th Cir. 1985) (citing 28 C.F.R. §

14.2(a); 28 C.F.R. § 14.604(b)) (finding

that for purposes of the Federal Torts

Claims Act, "mailing is not presenting;

there must be receipt."); Murray v. United

States, 604 F. Supp. 444 (E.D. Pa. 1985)

(same); Barlow v. Avco Corp., 527 F. Supp.

269, 273 (E.D. Va. 1981) (Same).

- 28 -

That discovery has not been completed.

DISCUSSION

tatus of Defendant Dr. Wynne

As a preliminary matter, the court

must determine whether Dr. Wynne is a

federal or private sector employee. The

United States Attorney’s office originally

represented defendant Dr. Wynne because

the Department of Justice and the Bureau

of Prisons considered him a. federal

employee. In August, 1990, the Department

of Justice reversed its position and

determined that Dr. Wynne was an

limiting the length of briefs submitted in

this case, the court finds that

plaintiff’s latest submission constitutes

a flagrant violation of the court’s

previous order requesting a memorandum

solely on the issue of presentment.

Accordingly, the court will consider only

that portion of plaintiff’s September 4,

1991, memorandum of law that discusses the

issue of presentment.

independent contractor with FMC.

Thereafter, Dr. Wynne retained private

counsel to represent him in this matter.

On May 30, 1991, the federal defendants

moved the court to amend its answer in

order that it might reflect that Dr. Wynne

was an independent contractor and that he

was represented by private counsel. Dr.

Wynne did not file an objection to the

government’s motion and plaintiff had no

objection to the government’s motion.

The contract between Dr. Wynne and

the Bureau of Prisons repeatedly describes

Dr. Wynne as a contractor. The contract

States that Dr. Wynne’s position with FMC

"ie coe contractual and not an

appointment.... Contractor shall not be

subject to government supervision."

Exhibit C to federal defendant’s motion to

iii

dismiss or, in the alternative for summary

judgment at 1. The contract further

specifies that the "[g]overnment will not

withhold any taxes an the contractor is

not entitled to any fringe benefits." DF

Other documents submitted with the federal]

defendants’ motions also allude to the

contractual nature of Dr. Wynne’s

employment with FMC. The court finds that

Dr. Wynne was an independent contractor

with FMC at the time of the alleged

malpractice and grants the federal

defendants’ May 30, 1991, motion to amend

their answer to reflect Dr. Wynne’s

independent contractor status. Because

Dr. Wynne was an independent contractor at

the time of the alleged malpractice, the

court concludes that Dr. Wynne is not an

appropriate party to plaintiff’s federal

marries

attributable to the State, and that ...

[the doctor] acted under color of state

law for purposes of § 1983. Id. at $7.

"The fact that the State

employed respondent pursuant to

a contractual arrangement that

did not generate the same

benefits or obligations

applicable to. other ‘state

employees’ does not alter the

analysis. It is the physician’s

function within the state

system, not the precise terms of

his employment, that determines

whether his actions can fairly

be attributed to the State....

Contracting out prison medical

care does not relieve the State

of its constitutional duty to

provide adequate medical

treatment to those in its

custody, and it does not deprive

the State’s prisoners of the

means to vindicate their Eighth

Amendment rights."

Id. at 55-56. The holding in West is

instructive to the determination to be

made in the case at hand because a Bivens

claim is analogous to a § 1983 claim.

"The effect of Bivens was, in essence, to

- 35 -

create a remedy against federal officers,

acting under color of federal law, that

was analogous, to the § 1983 action

against state officials." Dean __v.

Gladney, 621 F.2d 1331, 1336 (Sth Cir.

1980); see also Schowengerdt v. General

Dynamics Corp., 823 F.2d 1328, 1337-38

(9th Cir. 1987) (finding that the private

Status of a defendant will not serve to

defeat a Bivens claim for violation of

constitutional rights provided that

defendant engaged in federal action).

Therefore, the court concludes that Dr.

Wynne is an appropriate party to

plaintiff’s Bivens claims.

Presentment of the Administrative Claim

Whether plaintiff properly presented

his administrative claim is a

jurisdictional issue. The federal

defendants move the court for an order

dismissing plaintiff’s federal tort action

pursuant to Fed. R. Civ. P. 12(b) (1).

Rule 12(b) (1) "(jjurisdictional issues,

whether they involve questions of law or

of fact, are for the courts to decide."

Osborn v. United States, 918 F.2d 724, 729

(8th Cir. 1990). The court may consider

matters outside the pleadings in a

challenge to subject matter jurisdiction.

Id. at 728 n.4 (citations omitted).

Plaintiff continues to allege that he

properly presented an administrative claim

under 28.-U.S.C. § 2675(a). First,

plaintiff alleges a presumption of

receipt. Plaintiff submitted affidavits

stating this his claim was mailed to the

FMC. Second, plaintiff claims that

deposition testimony indicates that FMC

- 37 -

received plaintiff’s administrative Claim,

thereby supporting the presumption of

receipt and satisfying plaintiff’s burden

of establishing presentment. Plaintiff

alleges that the depositions of Dr. Daniel

Foster, Chief Psychologist at FMC, and

John Chreno, coordinator of social

services at FMC when plaintiff had his

hart attack, provide sufficient evidence

that FMC received plaintiff’s clain.

Plaintiff cites a portion of Dr. Foster’s

deposition in which the doctor states that

he overheard a _ conversation regarding

plaintiff’s claim shortly after plaintiff

allegedly mailed the claim. Plaintiff

also cites a portion of Chreno’s

deposition in which he states that he

remembered a discussion about the claim at

a department head _ meeting. Chreno

attributed that discussion to a newspaper

article. Plaintiff also submitted the

affidavit of Ray Howe, Director of

Research Unlimited in Rochester,

Minnesota, in which Howe states that no

Minnesota daily newspaper carried an

article on plaintiff’s lawsuit between

October 1988 and January 1989. Based on

that evidence, plaintiff claims that FMC

officials must have received plaintiff’s

administrative claim.

The court finds that plaintiff has

not satisfied his burden of showing that

FMC actually received his administrative

claim. Presumption of receipt is not

sufficient to withstand the federal

defendants’ motion to dismiss. Plaintiff

must show that FMC actually received his

claim and the deposition testimony that

plaintiff relies on to establish

presentment is too speculative to prove

that FMC actually received his claim.

Plaintiff draws his inference of

receipt from the following portions of Dr.

Foster’s and John Chreno’s testimony:

Dr. Foster

Q. I want to focus on this

conversation you overhead for a

couple of seconds, okay?

| Yes.

Q. As I understand it one, you

cannot tell us who made the

statement?

A. That’s correct.

Q. Okay. You cannot tell us

who was present when the

statement was made, is that

correct?

A. That’s correct.

Q. You cannot tell us with any

precision when the statement was

made, is that correct?

A. That’s correct.

- 40 -

*k*

Q. Okay. And it is your -- Do

I also understand that it is

your characterization of the

conversation, that it did not

reference any formal complaint

Or written claim having been

received on that subject?

A. My characterization or my

recall, vague as it is, was to

anticipate a lawsuit. It

certainly was not clear whether

there was anything formal

written or it was just something

verbalized. It was a

Speculative type of comment,

from my perspective. I didn’t

know it was a fact or had

substance to it.

Q. Okay. One of the things I

am trying to get at with the

question is, in the Federal Tort

Claim Procedures, as you may

know, one of the steps that a

person has to follow to get into

court is to have filed a formal

written administrative claim

with FMC Rochester prior to

filing the lawsuit. Okay. Can

your characterization of the

conversation that you overheard,

okay, was it your understanding

that any formal written

administrative claim had been

received at FMC Rochester at

that time?

A. I have no recollection of

such a statement or of reference

to such a filing.

x**k*

A. I couldn’t say it’s likely.

I could say it’s possible. I

don’t know. I was not -- I did

not hear mention of a written

claim.

Foster Dep. at 12, 16-18.

John Chreno

Q. And do you recall any

discussion in that period in

1988 in the executive group

regarding Mr. Bellecourt and the

heart attack situation?

A. I don’t have any specific

independent recollection of

that. Other than I recall that

there were -- I do remember

being involved in general

discussions about the claim when

the newspaper article came out.

But again, I don’t know exactly

when that came out.

x*k*

Q. (Mr. Hall) In October,

November or December of 1988,

was there a discussion in the

executive group about a BP-9

submitted by Clyde Bellecourt

concerning a heart attack?

A. Not that I can recall.

Chreno Dep. at 12-13. Although the

deposition testimony raises the inference

that some FMC officials were aware of a

potential or pending Claim against

defendants, the deposition testimony does

not provide sufficient evidence from which

the court can determine that FMC actually

received plaintiff’s claim.

The federal defendants submitted

additional deposition testimony on the

mail receipt procedure that Supports the

court’s finding. FMC receives its mail in

a central mail room. Mail room employees

sort the mail into departments’ and

department employees pick up the mail.

- 43 -

Logs are kept for legal and certified

mail, but not for Ordinary mail. Because

plaintiff sent his alleged claim through

Ordinary mail, mail room employees would

not have recorded receipt of plaintiff’s

claim.

Plaintiff addressed his Claim to

Associate Warden Olson. If FMC had

received the Claim, the associate warden’s

secretary would have picked up his mail

from the mail room, taken the mail to the

associate warden’s office and Opened and

reviewed the mail before passing it on to

the associate warden. The associate

warden’s secretary at the time plaintiff

allegedly sent his Claim, Kathy Leighton,

testified that she did not see the letter

until it was shown to her shortly before

her deposition.

- 44 -

i

Associate Warden Olson testified that

the claim would have come to his attention

because it was addressed to him. However,

Olson testified that he did not see the

claim until it was shown to him shortly

before his deposition. Likewise, Timothy

Ondahl, who was acting associate warden

between December 5 and 19, 1988, while

Warden Olson was away from FMC, testified

that he would have read mail addressed to

Warden Olson during his absence. Mr.

Ondahl testified that he did not see the

Claim until it was shown to him a few

weeks before his deposition.

Plaintiff’s claim is a BP-9 Request

for Administrative Remedy ("BP-9") which

is used for inmate grievances occurring

during an applicant’s imprisonment. When

a BP-9 is received, the associate warden’s

secretary gives it to the case management

coordinator. If the case management

coordinator determines that utilization of

a BP-9 is the proper remedy for the relief

requested, the associate warden’s

secretary notes the receipt of the BP-9 in

a log book. The log contains the

administrative case number, the name of

the inmate, the assignment to prison staff

and a brief description of the claim.

When the case management coordinator

determines that a BP-9 is an improper

request, receipt of the BP-9 is not marked

in the log book. Instead, the case

management coordinator prepares a

memorandum rejecting the BP-9. The BP-9

is then returned to the applicant with a

copy of the memorandum. The case

management coordinator also keeps a copy

of the memoranda rejecting the BP-9.

At the time plaintiff allegedly filed

his administrative claim plaintiff was not

an inmate. Consequently, filing a BP-9

was not the appropriate method by which

plaintiff should have filed his claim.

Therefore, the case management coordinator

would have prepared a memorandum rejecting

the BP-9. Julie Alba, the case management

coordinator at the time of the alleged

filing, testified that she did not prepare

a memorandum rejecting plaintiff’s claim.

She further testified that, given the

nature of plaintiff’s allegations, his

claim would have been forwarded to her and

she would have remembered it. Alba

testified that she did not see plaintiff’s

ie aR

alleged claim until shortly before her

deposition.

Plaintiff argues that the BP-9 should

have been construed as a valid

notification of a claim under the FTCA.

Assuming that an FMC employee would have

treated plaintiff’s claim as a claim

arising under the FTCA, receipt of the

palin Dis 1 dima Kinane

Claim would have been forwarded to FMC’s

attorney advisor for analysis. Daryl

Kosiak, FMC’s attorney advisor at the time

plaintiff allegedly mailed his clain,

testified that he did not see plaintiff’s

alleged claim until it was shown to him

after initiation of this lawsuit.

Accordingly, the court finds that

plaintiff has failed to satisfy his burden

of establishing actual presentment and

plaintiff’s negligence claim against

- 48 -

federal defendants is dismissed pursuant

to Fed. R. Civ. P. 12(b) (1).

Other Claims Against Federal Defendants

The court also dismisses plaintiff’s

eighth, ninth, and tenth counts in which

plaintiff alleges that J. Michael Quinlan,

Director of Federal Bureau of Prisons,

Peter Carlson, Director of FMC, and Dr.

Michael Trujillo, Medical Director of FMC,

violated various duties owed to plaintiff.

Plaintiff proffers no evidence to support

those claims and the court holds that

those claims fail to state a claim upon

which relief may be granted. The court

grants summary judgment on those claims

pursuant to Fed. R. Civ. P. 56(c).

Constitutional Claims

The federal defendants move to

dismiss plaintiff’s constitutional claims

- 49 -

ave SOS a ee ae oe

pursuant to Fed. R. Civ. P. 12(b) (6) or,

in the alternative, for summary judgment

on those claims. On a motion to dismiss,

the "court may dismiss a complaint only if

it is clear that no relief could be

granted under any set of facts that could

be proved consistent with the

allegations." Hishon v. King & Spalding,

467 U.S. 69, 73 (1984) (citing Conley v.

Gibson, 355 U.S. 41, 45-56 (1957)).

Defendants have submitted additional

documents with its motion. Because the

court relies on those additional documents

in making its determination, defendant’s

motion will be treated as a motion for

summary judgment. See Fed. R. Civ. P.

12(b) (6) & 56.

Rule 56(c) of the Federal Rules of

Civil Procedure provides that summary

- 50 -

judgment "shall be rendered forthwith if

the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judgment as a matter of

law." This standard mirrors the standard

for a directed verdict under Federal Rule

of Civil Procedure 50(a), which is that

the trial judge must direct a verdict if,

under the governing law, there can-be but

one reasonable conclusion as to _ the

verdict. ders v. Libert obb Inc.,

477 U.Ss~ 242, 250 (1986). Stated in the

negative, summary judgment will not lie if

the evidence is such that a reasonable

jury could return a verdict for the

nonmoving party. Id. at 248. In order

- 51-

for the moving party to prevail, it must

demonstrate to the court that "there is a

genuine issue as to any material fact and

that the moving party is entitled to

judgment as a matter of law." Celotex

Corp. vv. Catrett, 477 U.S. Lp ty 325

(1986); Fed. R. Civ. P. 56(c). A fact is

material only when its resolution affects

the outcome of the case. Anderson, 477

U.S. at 248. On a motion for summary

judgment, all evidence and inferences are

to be viewed in a light most favorable to

the nonmoving party. id. at 250. The

nonmoving party, however, may not rest

upon mere denials or allegations in the

pleadings, but must set forth specific

facts sufficient to raise a genuine issue

for trial. Celotex, 477 U.S. at 324.

Moreover, if a plaintiff cannot support

- 52 =

each essential element of its claim,

summary judgment must be granted because a

complete failure of proof regarding an

essential element necessarily renders all

other facts immaterial. Id. at 322-23.

With this standard at hand, the court will

consider federal defendants’ motion.°®

As his third and fourth causes of

action, plaintiff alleges a violation of

his fifth and eight amendment rights. See

Bivens v. Six Unknown Agents, 403 U.S. 388

(1971). Plaintiff alleges that because he

is Native American, defendants failed to

fairly apply the laws and regulations

governing his incarceration, violating his

fifth amendment rights. Plaintiff further

alleges that defendants’ actions

‘This summary judgment standard also

applies to defendant Dr. Wynne’s motion

for partial summary judgment.

- 53 -

individually and in concert constituted

cruel and unusual punishment in violation

of his eighth amendment rights.

A plaintiff whose clearly established

constitutional rights are violated by

federal officials may sue them directly,

even though no legislation by Congress

exists specifically authorizing such a

remedy. See Bivens, 403 U.S. at 396-97;

Arcoren v. Peters, 811 F.2d 392, 393 (8th

Cir. 1987). Caution is observed in

granting a Bivens remedy. Arcoren, 811

F.2d at 393. Courts should hesitate when

factors, such as the existence of another

equally effective remedy, exist. Id.

(citing Bivens, 403 U.S. at 397). "A

Bivens action must be founded upon

disregard of requirements established by

the Constitution. Mere ultra vires action

- 54 -

in excess of the officer’s lawful

authority does not suffice." Id. at 393-

94 (citing Bivens, 403 U.S. at 396-97).

Erroneous decisions do not provide a basis

for a Bivens. action. Id. at 394

(citations omitted).

A. Fifth Amendment

Beyond bare allegations of race

discrimination, plaintiff has failed to

allege any other facts Supporting his

Claim. In a recent case regarding

constitutional claims brought under 42

U.S.C. § 1983, Chief Judge Alsop warned

plaintiffs that constitutional claims

"should not be pled in ... [a] shotgun

manner." Liggins v. Morris, 749 F. Supp.

967, 971 (D. Minn. 1990).

Almost invariably, complaints

using this format are met with

motions to dismiss or for

Summary judgment .... It is

Id.

left to the court to divine what

discrete constituti «al

violations are in luct

legitimate and proper ... as

against each defendant. The

court must and does ferret out

and dismiss those alleged

constitutional violations that

patently cannot be maintained.

The process is time consuming,

fraught with frustrations for

both the court and counsel, and

disrupts the orderly processing

of legitimate claims.... The

time has come for practitioners

in this district to prepare

complaints alleging

[constitutional] violations

in a fashion that will identify

the specific constitutional

violations as against only

culpable defendants. This court

is no longer disposed to perform

what should be the

responsibility of diligent

counsel in that regard.

at 971. The court finds

that

admonition equally apropos to a Bivens

claim.

Plaintiff’s assertion that he will

fill in the details of his complaint with

additional discovery is inappropriate and

insufficient to withstand defendant’s

- 56 -

motion. Accordingly, because defendant

has failed to withstand defendant’s

motion. Accordingly, because defendant

has failed to provide facts that

sufficiently demonstrate discriminatory

treatment, defendants’ motion for summary

judgment on plaintiff’s fifth amendment

Claim is granted.

B. Eighth Amendment

Plaintiff’s eighth amendment claim

also suffers from a vague’ factual

predicate. However, because of the

serious allegations of alleged

indifference to plaintiff’s medical needs,

and because the court has plaintiff’s

medical records and other documents before

it, the court will attempt to ferret out

plaintiff’s claim.

- 57 -

Prison employees violate a prisoner's

eighth amendment right to be free from

cruel and unusual punishment if they are

deliberately indifferent to a prisoner’s

serious medical needs. Estelle v. Gamble,

429 U.S. 97, 104-05 (1976); Smith v.

Jenkins, 919 F.2d 90, 92-94 (8th Cir.

1990). "This is true whether’ the

indifference is manifested by prison

doctors in their response to the

prisoner’s needs or by prison guards in

intentionally denying or delaying access

to medical care or intentionally

interfering with the treatment once

proscribed." Estelle, 429 U.S. at 104-05

(footnotes omitted).

5. upervi so : i t

M WwW ° M

Pet edical Director

of FMC, Dr. Michael Trujillo

In a Bivens action, ae federal

official cannot be held vicariously liable

for the acts of his subordinates under the

doctrine of respondeat superior, unless he

was personally involved in or participated

in the unconstitutional acts. Rizzo v.

Goode, 423 U.S. 362, 371, 376-377 (1976);

Tallman _v. Regan, 846 F.2d 494, 495 (8th

Cir. 1988). Unless plaintiff pleads an

"affirmative link" between the

Supervisor’s "personal participation, his

exercise of control or direction, or his

failure to supervise," dismissal is

appropriate. McKay v. Hammock, 730 F.2d

1367, 1374 (10th Cir. 1984). Beyond bare

allegations, plaintiff has not alleged

- 59 -

a

:

facts linking the supervisory personnel to

the alleged unconstitutional acts.

Neither has plaintiff produced evidence

that the supervisory personnel maintained

discriminatory policies, failed to provide

adequate instruction or failed to

Supervise in a fashion that could link

them to a deprivation of constitutional

rights. Accordingly, the court finds that

Summary judgment is appropriate for J.

Michael Quinlan, Peter Carlson and Dr.

Trujillo on plaintiff’s eighth amendment

claim.

, # Lieutenant Cliff Friese

Plaintiff admits that Lieutenant

Friese, along with several other guards,

responded to his call for help and that

defendant Friese radioed for medical

assistance after plaintiff said he was in

pain. Plaintiff contends that during his

examination he repeatedly told the doctor

that his condition was serious, and that

in response, defendant Friese warned

plaintiff that he "should be quiet and not

make trouble, or else ... [he] would risk

being sent to the ‘“‘hole’". Plaintiff

further contends that Dr. Wynne told

plaintiff to contact him if he had a

reoccurrence of pain during the night and

that Lieutenant Friese failed to check on

his condition during the night and that

Lieutenant Friese failed to check on his

condition during the night to determine if

he needed further assistance.

The court finds that plaintiff does

not have a valid eighth amendment claim

against Lieutenant Friese. Plaintiff has

not alleged sufficient facts indicating

- 61 -

o_o AD =

that Lieutenant Friese "intentionally

denied or delayed" plaintiff’s access to

medical care. First, plaintiff admits

that defendant Friese immediately

responded to his call for assistance and

shortly thereafter obtained medical care

for plaintiff. Second, although

Lieutenant Friese himself may not have

checked on plaintiff during the night,

documents submitted to the court indicate

that other prison guards did check

plaintiff’s status during the course of

the night. See Exhibit L to federal

defendant’s Motion to Dismiss or for

Summary Judgment. Third, plaintiff has

not provided the court with sufficient

evidence indicating that he attempted to

obtain additional medical care and was

deliberately denied that care.

Plaintiff stated that he "stayed

awake in continuous pain throughout most

of the night and considered calling for

the doctor but did not do so because he

thought the doctor would not listen to

him." Plaintiff also claims that he did

not call for the doctor because Lieutenant

Friese "had told him [during Dr. Wynne’s

examination] not to make a disturbance and

(p]laintiff believed that if he did call

for a guard again, that he might be placed

in solitary confinement without access to

medical personnel." Plaintiff’s

Memorandum in Opposition at 3. Even

assuming that plaintiff believed as he

did, plaintiff’s subjective determination

that further requests for assistance would

be ignored or cause him to be placed in

solitary confinement is not sufficient to

Support his claim. Lieutenant Friese had

no reason to believe that plaintiff

required additional assistance after the

doctor’s examination and treatment, and

"deliberately denied" him nothing.

Therefore, plaintiff’s eighth amendment

Claim against Lieutenant Friese fails.

: F Medical Personnel: Physician

Assistant Urriste and Dr. Wynne

The eighth amendment is violated if

medical care is so grossly incompetent or

inadequate that it amounts to deliberate

indifference. Smith, 919 F.2d at 93

(citations omitted). A doctor’s decision

to take an easier or less efficacious

course of treatment, refusal to provide

essential care, or care so inappropriate

as to evidence intentional maltreatment

violates the eighth amendment. Id.

However, the indifference to medical needs

- 64 -

must be substantial. Mere negligence,

inadvertent failure to provide adequate

medical care and gross negligence do not

Support a claim of medical mistreatment

under the eighth amendment. Estelle, 429

U.S. at 106. Likewise, a difference of

Opinion between an inmate and _ prison

medical personnel regarding appropriate

medical treatment does not suffice,

Randall v. Wyrick, 642 F.2d 304, 308 (8th

Cir. 1981), neither does a delay in

providing medical treatment unless the

delay causes substantial harm. Wood _v.

Housewright, 900 F.2d 1332, 1334 (9th Cir.

1990).

a. Physician Assistant Urriste

Plaintiff claims that he reported to

Sick call at 7:20 a.m. on September 16,

1987, told Physician’s Assistant Urriste

that he was having chest pains and that

she told him to wait in the waiting room

and that someone would like at him

immediately. Plaintiff contends that he

was not examined until 9:15 a.m., and that

this delay in treatment constitutes a

violation of his eighth amendment rights.

The court finds, however, that the

medical records submitted by the federal

defendants indicate that plaintiff

received some medical care between 7:20

a.m. and 9:15 a.m. on September 16, 1987.

An electrocardiogram ("EKG") printout

Shows that an EKG was taken at 7:48 a.m.

On September 16, 1987. Another medical

document indicates that a blood test was

performed at 8:10 a.m. Accordingly, the

court finds that plaintiff has not shown

that defendant Urriste was deliberately

indifferent to plaintiff’s medical needs.

b. Dr. Wynne

Plaintiff asserts that Dr. Wynne’s

examination so greatly deviated from the

medical norm that it constituted an eighth

amendment violation. In support of that

contention, plaintiff submitted an

affidavit of expert review. The expert

Stated that Dr. Wynne deviated from the

normal standard of care in attending to

plaintiff’s reported condition. See

Affidavit of Identification of Expert at

: The expert stated that reports of

pressure and pain in the chest area and

Shortness of breath should have led an

examining physician to Suspect a heart

attack. Id. According to the expert,

given the potential danger to both life

- 67 -

and vital organs posed by a heart attack,

the normal standard of medical care

dictates precautions, such as

hospitalization and an EKG to determine if

a heart attack was occurring. Plaintiff

also asserts that he told pr. Wynne that

he was having a heart attack and needed

hospitalization and an EKG.

The court finds that Dr. Wynne did

not violate defendant’s eighth amendment

rights. The facts indicate that Dr. Wynne

arrived at defendant’s cell within a

reasonable time after receiving word that

plaintiff was having chest pains. Medical

records indicate that Dr. Wynne thoroughly

examined plaintiff and from his

examination determined that plaintiff

likely was suffering from severe

indigestion. Dr. Wynne gave plaintiff

antacid and observed that plaintiff’s pain

seemed to subside. Therefore, Dr. Wynne

believed that a heart attack was not the

cause of plaintiff’s pain and determined

that an EKG was unnecessary at that time.

Dr. Wynne did make a notation in his

medical notes that he would get an EKG of

plaintiff if he continued to experience

chest pain. The fact that Dr. Wynne

misdiagnosed the source of plaintiff’s

pain, that his method of examination and

treatment may not have followed community

Standards, or that he disagreed with

plaintiff’s suggested course of treatment

does not amount to an eighth amendment

violation. Estelle, 429 U.S. at 106.

Accordingly, the court finds that Dr.

Wynne’s exercise of medical judgment was

not deliberately indifferent to

plaintiff’s medical needs and that

plaintiff’s eighth amendment claim with

respect to Dr. Wynne is denied.

Civil Rights Claims

As his fifth and sixth causes of

action, plaintiff asserts violations of

his civil rights pursuant to 42 U.S.C. §

1981 and 42 U.S.C. § 1985(c). Plaintiff

contends that because of their racial

animus, defendants treated him differently

than other prisoners through failure to

provide reasonable, competent, and

Standard medical care, in violation of §

1981. Plaintiff also contends that

defendants conspired to violate his civil

rights, in violation of § 1985(c).

As with his Bivens claim alleging

violation of his fifth amendment rights,

plaintiff must allege sufficient facts

- 70 -

indicating defendants actions were

motivated by discriminatory animus to

Survive federal defendants’ motion for

summary judgment on the alleged civil

rights violations. See Runyon v. McCrary,

427 U.S. 160 (1976). In addition, for his

§ 1985(c) Claim to survive federal

defendants’ motion for Summary judgment,

plaintiff must also allege sufficient

facts that shows defendants reached an

agreement and directed themselves toward

an unconstitutional action by virtue of

mutual understanding. See City of Omaha

Employees Betterment Assoc. v. City of

Omaha, 883 F.2d 650, 652 (8th Cir. 1989).

Beyond bare allegations of a

conspiracy to violate his civil rights

because he is Native American, plaintiff

has provided no facts of racial animus or

a conspiracy to act because of racial

animus. Accordingly, federal defendants’

motion for summary judgment on plaintiff’s

civil rights claims is granted.

tatu m: Patient’s Bill of Right

Plaintiff’s seventh cause of action

alleges a violation of Minn. Stat.

144.651, a medical "Bill of Rights" for

patients. Beyond a general allegation

that defendants violated this statute,

plaintiff did not state which provision of

the statute was violated or provide any

facts supporting his allegations. Because

plaintiff has not set forth sufficient

facts to raise a genuine issue for trial,

summary judgment is appropriate on this

statutory cause of action.

AS a preliminary matter, the

government contends that the court should

decline to exercise jurisdiction over

plaintiff’s state law medical malpractice

Claim against defendant Dr. Wynne. Under

Eighth Circuit law, the decision to

dismiss plaintiff’s pendent state law

Claims is discretionary. See e.g. Curtis

Vv. Sears, Roebuck & Co., 754 F.2d 781, 785

(8th Cir. 1985). The court has determined

that it will exercise jurisdiction over

plaintiff’s medical malpractice claim. If

jurisdiction is not examined, plaintiff’s

state law claim may be barred by the

Minnesota statute of limitations.

Significant delay in this case has already

occurred as it is approximately two and

one-half years old. Deciding this issue

- 73-

a ea.

also favors judicial economy because there _

has been a significant investment of ie

judicial time and resources, and the court

is familiar with the complex fact issues

involved.

Dr. Wynne contends that summary

judgment on plaintiff’s medical

malpractice claim is appropriate because

(1) plaintiff did not timely file two

affidavits that are necessary to sustain a

medical malpractice claim under Minn.

Stat. § 145.682, thereby warranting

dismissal, (2) this is the type of case

where expert testimony is necessary to

establish liability, and therefore,

plaintiff may not avail himself of an

exception to § 145.682 excusing compliance

with the affidavit requirement when expert

testimony is not necessary to prove

- 74 -

Sails 2S 8 anal

oo at Ant nl ‘

as = Agi ae uct ty eile ne as =

liability, and (3) plaintiff cannot

establish excusable neglect for the late

filing of expert affidavits. Plaintiff —

contends that he did not have to comply

with Minn. Stat. § 145.682 because (1)

this is the type of case where expert

testimony is not necessary to establish

liability, and (2) even if the court

determines that expert testimony is

necessary to establish liability,

plaintiff filed an expert affidavit and

filed it late because of excusable

neglect.

Minn. Stat. § 145.682 requires a

plaintiff bringing a medicai malpractice

Claim to submit two affidavits supporting

the claim. The first affidavit ("expert

review affidavit") must be submitted with

the complaint and state that before

- 75 -

a ) ene

commencing the lawsuit, plaintiff's

attorney reviewed the facts of the case

with a medical expert who believed that at

least one defendant named in the suit

deviated from the applicable standard of

care and thereby injured the plaintiff.

Minn. Stat. § 145.682, subd. 3(a). In

lieu of submitting the affidavit,

plaintiff’s attorney may state that the

required expert review could not be

obtained in time to file the suit within

the statute of limitations. Id., subd.

3(b). If the latter option is selected,

plaintiff’s attorney, within 90 days of

filing the complaint, must. submit an

affidavit stating that he has reviewed the

case with an expert who believes the

Standard of care was breached. Id.

- 76-

The second affidavit ("expert

disclosure affidavit") must be served upon

the defendant within 180 days after

commencement of the suit and identify each

expert plaintiff intends to call at trial,

disclose the substance of the facts and

opinions to which the expert will testify,

and provide a summary of the grounds for

each opinion. Minn. Stat. § 145.682,

subd. 4. Answers to interrogatories may

Substitute for the expert disclosure

affidavit, as long as they are provided

within the requisite 180 days and contain

the required information. Id.

The penalty for noncompliance is set

forth in Minn. Stat. § 145.682, subd. 6.

With respect to the expert review

affidavit, failure to comply within 60

days after demand for the affidavit

— ee

Bi th, wes Pe dit

AD ~ SOE hae.

"results, upon motion, in mandatory

dismissal with prejudice of each cause of

action as to which expert testimony is

necessary to establish a prima facie

case." Id. With respect to the expert

disclosure affidavit, no demand is

necessary to trigger the noncompliance

penalties. Rather, the statute simply

provides that failure to Supply the

affidavit within 180 days "results, upon

motion, in mandatory dismissal with

prejudice of each cause of action as to

which expert testimony is necessary to

establish a prima facie case." Id.

There are two methods through which a

plaintiff may escape dismissal for

noncompliance. First, the court may

extend the time for serving the

affidavits, even after the time limits

have expired, upon a showing of excusable

neglect. Stern v. Dill, 442 N.W.2d 322,

324 (Minn. 1989). To claim excusable

neglect, Minnesota courts require a

plaintiff to satisfy four factors: (1)

plaintiff has a reasonable case on the

merits; (2) plaintiff has a reasonable

excuse for his failure to meet the

Statutory time limits; (3) plaintiff has

proceeded with due diligence after notice

of statutory time limits; and (4) no

Substantial prejudice will result to

defendant by the extension of time. See

Parker _v. O’Phelan, 414 N.W.2d 534, 537

(Minn. Ct. App. 1987), aff'd by equally

divided court, 428 N.W.2d 361 (Minn.

1988).

Second, a plaintiff need not submit

expert affidavits if liability may be

- 79 =

a *

established without expert testimony. _

Minnesota courts hold that "[e)xpert

testimony is not necessary where the facts

to be determined are within the common

knowledge of the jury and where the

results of surgical or medical treatment,

viewed in_- the light cf all the

circumstances, provide a sufficient

evidentiary basis to support an inference

of negligence." Bauer v. Friedland, 394

N.W.2d 549, 553 (Minn. Ct. App. 1986); see

Ctr., 457 N.W.2d 186, 191 (Minn. 1990).

It is undisputed that plaintiff did

not file either of the expert affidavits

in a timely manner. Plaintiff commenced

this lawsuit against Dr. Wynne. on

September 18, 1989. With his summons and

complaint, plaintiff served an affidavit

- 80 -

ode. elie beet uid , <

*

of counsel stating that an affidavit of

expert review could not be obtained before

commencing the action because the statute

of limitations was about to expire. On

October 9, 1989, plaintiff was served with

a demand for compliance with Minn. Stat. §

145.682.’ Plaintiff did not comply with

‘This demand was made by the Mayo

Foundation, who at the time was a

defendant in this lawsuit. Pursuant to a

Stipulation by the parties, the court

dismissed the Mayo Foundation on July 16,

1990. Plaintiff argues that because the

Mayo Foundation is no longer a party, its

October 9, 1989, demand has no statutory

Significance. Therefore, plaintiff argues

that Dr. Wynne cannot use plaintiff’s

failure to comply with that demand as a

defense, even though the 60 day limit to

respond to the Mayo Foundation’s demand

for expert review expired well before the

Mayo Foundation was dismissed. The court

finds that it does not need to determine

whether Dr. Wynne may use plaintiff’s

failure to comply with the Mayo

Foundation’s October 9, 1989, demand as a

defense because plaintiff also failed to

satisfy the 180 day limit for submission

of an expert identification affidavit.

Dr. Wynne does not have to make a demand

- 81-

this demand. Allegedly, on April 4, 1990,

plaintiff requested an extension of time

through June 7, 1990, to comply with the

statute.* Apparently, plaintiff did not

request that the motion be set on for a

hearing and he never obtained an order

authorizing any extension of the time

limits. June 7, 1990, passed without any

expert disclosure by plaintiff.

On or about November ah; 1990,

plaintiff served answers to federal

defendant’s interrogatories. The

interrogatories included an expert

interrogatory asking for the information

that Dr. Wynne contends plaintiff should

on plaintiff to use plaintiff’s failure to

comply with that later submission as a

defense to the malpractice claim. See

Minn. Stat. § 145.682, subd. 6.

"No record of any such motion is

contained in the Clerk of Court’s file.

- 82 -

bat ain aS ns the

have supplied in the required affidavits.

In answer, plaintiff acknowledged: "To

date expert witnesses have not been

identified, apart from the physicians who

rendered treatment to Plaintiff." See

Exhibit C to Miller Aff. Plaintiff then

named his two treating physicians but did

not state that either physician would

render an opinion regarding the claim for

malpractice. id. Plaintiff finally

Submitted an affidavit on February 7,

1991, that identified a medical expert and

stated his opinions on the propriety of

Dr. Wynne’s examination of plaintiff.

Thereafter, on February 20, 1991,

plaintiff filed a motion seeking an

extension of the § 145.682 time limits to

excuse his late February 7, 1991, filing.®

That affidavit was filed well beyond the

60 day limit for demand of expert review

and approximately 11 months after

expiration of the 180 day limit for filing

the expert identification affidavit.

Therefore, dismissal of plaintiff’s

malpractice claim with prejudice is

appropriate unless plaintiff can establish

that expert testimony is not necessary to

establish negligence or excusable neglect

kept him from timely filing his

affidavits.

A. Expert Testimony

In medical malpractice cases,

Minnesota courts hold that to establish a

°The court did not rule on this

motion. By filing this order, the court

hereby denies plaintiff’s February 20,

1991, motion for an extension of time in

which to file an expert affidavit.

- 84 -

prima facie case of negligence against a

doctor a plaintiff must demonstrate:

(1) the standard of care

recognized by the medical

community as applicable to the

particular defendant’s conduct,

(2) that the defendant in fact

departed from that standard, and

(3) that the defendant’s

departure from the standard was

a direct cause of (plaintiff’s}]

injuries.

Plutshack v. University of Minnesota

Hospitals, 316 N.W.2d 1, 5 (Minn. 1982).

Generally, expert testimony is needed to

prove a prima facie case of medical

malpractice. Sorenson, 457 N.W.2d at 191;

Plutshack, 316 N.W.2d at 5.

Expert testimony is. particularly

necessary in cases involving a failure to

diagnose. For example, in Todd v. Eitel

Hospital, 237 N.W.2d 357 (Minn. 1975),

plaintiff alleged a negligent failure to

diagnose a malignancy and the court found

- 85 -

that expert testimony was required to

prove the claim. The court reasoned that:

This is distinctly not the kind

of case where the negligence

"speaks for itself" without

expert medical opinion, such as

where a surgeon leaves a sponge

in the body or where there is

unexplained injury to a healthy

part of the body remote from the

treatment area. Where, as here,

the conduct of the physician

involves the complexities of

pathological diagnosis, we are

not persuaded that nonmedically-

trained jurors are competent to

pass judgment.

Id. at 361 (footnote omitted); See also

Sorenson v. St. Paul Ramsey Medical Ctr.,

444 N.W.2d 848, 852 (Minn. Ct. App. 1989)

(expert testimony needed to establish

negligent failure to diagnose placenta

abruptio), aff’d 457 N.W.2d 188 (Minn.

1990); Smith v. Knowles, 281 N.W.2d 653,

655 (Minn. 1979) (expert testimony was

crucial to the plaintiff’s claim where the

- 86 -

plaintiff alleged a negligent failure to

timely diagnose and properly treat

eclampsia, leading to the death of the

mother and child during delivery).

Cases involving a failure to properly

diagnose bear little relationship to the

cases in which Minnesota courts have

permitted medical malpractice cases to go

forward without expert testimony. In such

cases, the assessment of negligence has

not required any specialized medical

knowledge or evaluation of medical

judgment. For instance, expert medical

testimony has been found unnecessary where

medical clips were left in a body after

Surgery, a surgeon failed to remove a

sponge after surgery, a dentist let a

grinding disc slip and cut a patient’s

tongue, administration of an anesthetic

- 87 -

continued after cyanosis appeared, an x-

ray burn resulted from an improper x-ray,

and a chemical burn resulted from improper

application of a chemical. Miller v.

Raaen, 139 N.W.2d 877, 880 (Minn. 1966)

(summary of medical malpractice cases

where expert testimony was not needed to

establish liability); see also Bauer v.

Friedland, 394 N.W.2d 549, 554 (Minn. Ct.

App. 1986); Hestbeck v. He ’

212 N.W.2d 361, 364-66 (Minn. 1973). The

Minnesota Supreme Court summarized the

principles underlying those precedents as

follows:

All these cases involved

situations where there was no

doubt about the cause of the

result complained of, and the

result would not have followed

in the absence of a breach of

duty, the establishment of which

- 88 -

did not involve any scientific ‘:

knowledge. : Pes.

Miller, 139 N.W.2d at 880.

Plaintiff’s case is unlike any of the

exceptional cases summarized in Miller.

The essence of plaintiff’s malpractice

claim against Dr. Wynne is his alleged

failure to test for and diagnose a heart

attack and a belief that a jury could

determine on its own that Dr. Wynne’s

diagnosis and treatment were medically

negligent because Dr. Wynne failed to

obtain an EKG of plaintiff. The result

plaintiff complains of is a damaged heart,

the cause of which is unknown. Evaluating

Dr. Wynne’s examination, diagnosis, and

treatment of plaintiff will require

knowledge of internal medicine and

cardiology that lay jurors cannot be

———————EeEeEeEeEeEeE—E—EeEEEEEEEEEEEEEE

expected to have. Lay jurors do not

- 89 -

possess the knowledge to differentiate

between a heart attack and other potential

causes of chest pain. Therefore, the

court finds that a lay jury will require

expert assistance to establish the

standard of care for diagnosing a heart

attack and to determine whether Dr.

Wynne’s actions failed to meet that

standard.

This is not a case of abandonment, in

which a lay person might decide that a

doctor’s actions in completely ignoring a

patient were negligent. Plaintiff

admitted that Dr. Wynne responded promptly

to his call for assistance, examined him,

made a diagnosis, and prescribed a

treatment. Plaintiff also admitted that

after treating him, Dr. Wynne advised him

that if his pain recurred, he should call

- 90 -

for assistance. Plaintiff admitted that

he did not summon Dr. Wynne again that

night, but waited until the morning sick

call to seek further medical attention.

Even if plaintiff could establish the

applicable standard of care and show Dr.

Wynne’s departure from that standard, the

court finds that plaintiff cannot prove

the third Plutshack factor, causation and

damage, without expert testimony.

Plaintiff suffered a heart attack and

alleges that Dr. Wynne’ should have

diagnosed the heart attack sooner by

obtaining an EKG. To establish causation

and damage, plaintiff must prove that the

alleged delay in diagnosis caused injury

beyond the injury caused by the heart

attack itself, and he must provide some

- 91-

basis for the jury to quantify

injury. r¢

The court finds that a lay jury has

no basis for making such a sophisticated

medical judgment. Whether plaintiff’s

health would have been any better if the

diagnosis had been made earlier is

questionable. Accordingly, the court

finds in this case that expert testimony

is necessary to prove a prima facie case

of medical malpractice and that plaintiff

did not present an expert affidavit within

the time limits of Minn. Stat. § 145.682.

Therefore, unless plaintiff can establish

excusable neglect for the late filing of

his expert affidavit, plaintiff’s claim

must be dismissed with prejudice.

- 92 - Si

eS Ce

B. Excusable Neglect

The court finds that plaintiff has

not satisfied Parker’s four factor test

for excusable neglect. To establish

excusable neglect under Parker, plaintiff

must demonstrate that (1) he has a

reasonable malpractice claim on the

merits, (2) he has a reasonable excuse for

failing to comply with the affidavit

requirements of § 145.682, (3) he

diligently attempted to comply § 145.682

after notice of the statutory time limits,

and (4) defendant will not be

substantially prejudiced by an extension

of time to comply with the statutory time

limits. Parker, 414 N.W.2d at 537.

1. s e eri

Plaintiff does not have a reasonable

case on the merits. Even if his belated

- 93 -

expert’s affidavit were deemed suff ¢

to establish the standard of care ‘enike at

Wynne’s departure from that standard, =

provides little insight into the causa‘ 4

and damage factor of a prima facie case of _

medical malpractice.

2. and 3. Reasonable Excuse and Due

Diligence |

Plaintiff’s showing is also deficient

as to the reasonable excuse and due

diligence elements. Plaintiff has not

shown a reasonable excuse for failing to

comply with § 145.682. He was aware of

the statute from the outset of this

litigation, as evidenced by his counsel’s

preliminary affidavit under § 145.682. He

was aware of the statute from the outset

of this litigation, as evidenced by his

counsel’s preliminary affidavit under §

145.682, subd. 3(a), claiming that the

- 94 -

imminent expiration of the statute of :

limitations precluded prior expert review.

Plaintiff failed to respond to defendant's _

requests for compliance. Specific demand 4

for the expert review affidavit was made 3

in October 1989, and interrogatories

seeking the required expert disclosure

information were served in March 1990.

Plaintiff apparently sought an extension

of time to satisfy the statutory

requirements, but failed to obtain a

hearing on that motion.

Plaintiff’s counsel asserts that he

had to consult eleven cardiologists before

finding an expert who was willing to

testify on behalf of plaintiff. Plaintiff

provided no evidence as to when he

consulted those cardiologists, who they

were, how diligently he followed up on his

- 95 -

quest for an expert, and what sourc

consulted in his search. Plaii if

counsel claimed that several of ¢t

doctors were reluctant to testify against

a fellow physician. Such an occurrence is

quite common in medical malpractice suits

and if such ae claim constituted a

reasonable excuse, few plaintiff’s

attorneys would need to worry about

complying with § 145.682. Accordingly,

the court finds that plaintiff has not

satisfied the reasonable excuse or due

diligence factors of excusable neglect.

4. eju a

The court finds that Dr. Wynne will

be substantially prejudiced if plaintiff

is permitted to avoid the § 145.682 time

limits. It is almost two and one-half

years since the suit was filed and almost

- 96 -

four and one-half years since the alleged

malpractice occurred. The lapse of time

would cause substantial difficulty for Dr. ‘3

Wynne to prepare to meet the opinions |

contained in the belated affidavit of

plaintiff’s expert.

Similar circumstances were presented —

in Maloney v. Fairview Community Hospital,

451 N.W.2d 237 (Minn. Ct. Ap. 1990).

There, the court dismissed Maloney’s

medical malpractice claim against

defendant doctors because Maloney did not

prove excusable neglect. Id. at 240.

Maloney submitted answers to

interrogatories identifying expert

witnesses approximately six months after

expiration of the 180 day limit although

he never requested an extension of time

within which to Satisfy the statute. The

- 97 -

the beginning of the lawsuit ond? bes a

represented by the same attorney since

before expiration of the statutory time

limits, Maloney could not show a

reasonable excuse for his failure to

comply. Id. In addition, the court found

that an extension of time would result in

prejudice to the doctors because more than

three years had passed since the alleged

injury and treatment occurred and more

than two years had passed since

commencement of the lawsuit. Id.

In the present case, plaintiff

submitted his expert affidavit

approximately eleven months after

expiration of the 180 day limit and

approximately three and one-half years

- 98 -

ee ee aS ee I

after the alleged malpractice and mo re

than one and one-half years after |

commencement of the lawsuit. Plaintiff :

allegedly made one request for an

extension of time but failed to obtain a

hearing on that motion. Plaintiff made

another belated attempt to extend the

statutory time limit on February 20, 1991,

in response to Dr. Wynne’s motion for

summary judgment and failed to obtain a

hearing on that motion. In addition,

plaintiff was aware of the statutory time

limits and has been represented by the

same counsel from the beginning of this

case. Therefore, the court finds that

plaintiff cannot use the justification of

excusable neglect to avoid the mandatory

dismissal provision found in Minn. Stat. §

145.682, subd. 6.

- 99 -

In determining that plaintiff has no

Satisfied the requirements for excusable

neglect, thereby causing plaintiff’s suit

to be dismissed on procedural grounds, the

court is mindful that malpractice claims,

if possible, should be decided on the

merits. Sorenson, 457 N.W.2d at 192.

However, the court finds that plaintiff’s

failure to comply with Minn. Stat. §

145.682 was sufficiently egregious to

Warrant dismissal on procedural grounds.

Accordingly, plaintiff’s medical

malpractice claim is dismissed with

prejudice.

IT IS HEREBY ORDERED that:

i. The federal defendants’ motion

to dismiss plaintiff’s federal tort claim

for lack of jurisdiction is granted;

- 100 -

2. The federal defendants’ motion

for summary judgment on all other claims

is granted;

a Defendant Dr. Wynne’s motion for

summary judgment on plaintiff’s medical

malpractice claim is granted;

4. The federal defendants’ motion

to amend its answer is granted;

5. Plaintiff’s February 20, 1991,

motion to extend the time in which to

comply with Minn. Stat. § 145.682 is

denied;

6. Plaintiff’s October 2, 1991

motion for oral reargument is denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: February 10, 1992

/s/

David S. Doty, Judge

United States District Court

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CIVIL COVER SHEET, CONT. CLYDE Ht, BELLECOURT VV. UNITED STATES, ET AL.

14.4) DEFENDANTS, coont boned:

Federal Medical Center, Rochester

Federal Medical Center, Rochester

Veter Curlsun, Warden

Federal Medical Center, Rochester

Dr. Michael Trujillo, Medical Director

Federal Medical Center, Rochester

CVitf Petlece, Cheuteucnt

Muyy Foundation

Federal Medical Center, Kochester

Dr. ALan Wynne

Federal Medical Center, Rochester

Sara Urriste, Physicians’ Assistant

104

a

DISTRICT OF MINNESOTA

HIRD DIVISION

CIVIL ACTION

Clyde H. Bellecourt,

Plaintiff,

COMPLAINT

vs. Court File No.

the United States of America,

and

the Federal Bureau of Prisons,

and

J. Michael Quinlan, Director of

Federal Prisons, Washington, BiGay

in his official capacity,

the Federal Medical Center,

Rochester, Minnesota, a division of

the Federal Bureau of Prisons,

and

- 305 =

Pete

ae PPR MCR TTI CS ME ITI ITE POR EONS

oo 2 ee) i el eee ee ee 4

> “pee bie tee is NEL Ati te. |

Peter Carlson, Warden

Federal Medical Center,

Rochester Minnesota, in his

official capacity,

and

Dr. Michael Trujillo, Medical

Director, Federal Medical

Center, Rochester, Minnesota

in his official capacity,

and

Cliff Friese, Lieutenant,

Federal Medical Center, Rochester,

Minnesota, in his official and

individual capacities

and

the Mayo Foundation, a Minnesota

Non-Profit Corporation,

Rochester, Minnesota,

and

Dr. Alan Wynne, Resident Physician,

in his official capacities as

resident physician for Mayo

Foundation, and as an employee of the

Federal Medical Center and

individually,

and

Sarah Urriste, Physicians’ Assistant,

in her official capacities as

Physician’s Assistant for Mayo

Foundation and as an employee of the

Federal Medical Center and

individually,

Defendants.

Plaintiff, Clyde H. Bellecourt, for

his cause of action alleges:

I. NATURE OF CLAIM

1.

Plaintiff Clyde H. Bellecourt, by and

through his undersigned attorneys, seeks

damages for physical injury, emotional

injury, pain and suffering, medical

malpractice, and discrimination from the

Federal Medical Center, Rochester,

Minnesota, (hereinafter "Federal Medical

Center"), a division of the Federal Bureau

- 107 -

NU So SES a AID Ee te ee ea

of Prisons, an agency of the United

States, from Mayo Foundation, a Minnesota

Corporation doing business in Rochester,

Minnesota, and others so named. Due to

the deliberate indifference of the

Defendants to Plaintiff’s serious medical

needs including life-threatening medical

and psychological needs, Plaintiff,

suffering a heart attack, was

misdiagnosed, given the wrong course of

treatment by Defendant Alan Wynne, who

then abandoned Plaintiff without any

medical care or institutional care for

over nine hours in the midst of a life-

threatening heart attack and further that

such negligent care constitutes medical

malpractice. Due to further deliberate

indifference of Defendants to Plaintiff’s

serious medical needs, Plaintiff was

- 103 =

abandoned without medical or institutional

care by Defendant Federal Medical Center,

Defendant Lieutenant Friese, and Defendant

Sarah Urriste for over nine hours in the

midst of a life-threatening heart attack

and further that such actions constitute

negligence. Such abandonment and lack of

institutional care were directed and/or

encouraged by the policies implemented by

Defendants United States, Federal Bureau

of Prisons, J. Michael Quinlan, Warden Dr.

Joseph B. Bogen, and Medical Director Dr.

Martha Grogan.

Plaintiff reported his heart attack

at approximately 12:30 a.m. on September

16, 1987, receiving antacid for treatment

by Defendant Dr. Alan Wynne. Plaintiff

was thereafter abandoned in his cell

despite pleas for medical treatment and

- 109 =

received no reasonable, competent or

meaningful medical attention until

approximately 9:45 a.m. the following

morning.

The Defendants’ individual and

collective acts and omissions constituted

negligence, medical malpractice, and

deliberate and wilful indifference to the

health and safety of Plaintiff and

resulted in the unnecessary and wanton

infliction of physical injury and

permanent damage, and pain and suffering

including, but not limited to, permanent

heart damage.

Such shocking and heinous conduct by

government authorities and other named

Defendants deprived Plaintiff of rights

guaranteed by the Fifth and Eighth

= 41310 -

Amendments to the United States

Constitution and Minnesota law.

II. JURISDICTION

This action is brought pursuant to

the Federal Tort Claims Act, Sections 2671

through 2680 of Title 28 of the United

States Code (28 U.S.C. §§ 2671-2680) and

to Title 42 U.S.C. §§ 1981, 1985(c), and

1986 to redress the deprivations or rights

secured by the Fifth and Eighth Amendment

to the Constitution of the United States.

This is a civil action for damages and

declaratory relief.

3.

This Court has jurisdiction of these

claims pursuant to Title 28 U.S.C. §

1346(b) and § 1331 , and Title 42 U.S.c.

- £65 °

"ee ee

jurisdiction of this Court with respect to

several state law claims.

4.

Damages sustained by Plaintiff exceed

$10,000.00.

S.

That Plaintiff, in compliance with

all requirements of the Federal Tort

Claims Act (28 U.S.C. §§ 2671-2680),

properly presented to the appropriate

agency, Federal Bureau of Prisons, full

notice of claim and the claim for injury

and damages on November 29, 1988, by

submitting a Request for Administrative

Remedy to the Federal Medical Center,

Rochester, Minnesota. Attached as Exhibit

1.

$1988, and Plaintiff invokes the pendent

6.

That Plaintiff’s Request for

Administrative Remedy, submitted on

November 29, 1988, was in full compliance

with all instructions, procedures, and

forms according to the instructions in the

Memorandum of Warden Dr. Joseph B. Bogen,

then Warden of the Federal Medical Center,

Rochester, Minnesota. Attached as Exhibit

2.

Ve

That Plaintiff’s claim, Request for

Administrative Remedy, was presented to

the administrative agency, Federal Bureau

of Prisons through the Federal Medical

Center, in a timely manner, the November

29, 1988 claim occurring within two years

of the September 16, 1987 injury.

- 433 =

8.

That said federal agency, Federal

Bureau of Prisons, has rejected

Plaintiff’s notice of claim and Claim, as

filed in the Administrative Remedy

Request, by inaction in that no response

to Plaintiff’s Request for Administrative

Remedy was received within six (6) months

Or has been received to date.

9.

That this action is timely filed

within the proper period following the

lack of response by the administrative

agency.

III. PARTIES

10.

Plaintiff Clyde Bellecourt resides in

the City of Minneapolis, County of

- 114 -

Hennepin, State of Minnesota, which is

within the District of the State of

Minnesota.

il.

At all times material herein,

Plaintiff Clyde Bellecourt was an inmate

of the Federal Medical Center, a federal

prison, located at Rochester, Minnesota,

County of Olmstead, State of Minnesota,

located within the District of Minnesota.

12.

The term "Defendants" as used herein

refers to the named Defendants who were

responsible for the particular acts and

omissions specified in the Complaint.

13.

At all times material herein,

Defendant United States of America, by and

through the Defendant Federal Bureau of

- 115 <-

Prisons, a federal agency of the United

States, did then and now owns and operates

the Defendant Federal Medical Center, a

federal medical facility/prison located in

the City of Rochester, State of Minnesota.

14.

Defendant J. Michael Quinlan,

Washington, D.C., is the Director of

Federal Prisons at all relevant times. As

such, he is officially responsible for

overseeing the enforcement of the laws and

regulations governing federal

correctional/penal institutions in the

United States and the overall supervision,

care and treatment of all inmates confined

at the institutions operated by the

Federal Bureau of Prisons. Defendant J.

Michael Quinlan is sued in his official

Capacity. seeiiiatal

- 336 =<

15.

Defendant Peter Carlson is currently

the Warden of the Federal Medical Center,

Rochester, Minnesota. His predecessor, Dr

Joseph B. Bogen was officially responsible

for care and treatment of all inmates

confined at the Federal Medical Center at

the time events specified herein occurred.

Defendant Peter Carlson is sued in his

official capacity.

16.

Defendant Dr. Michael Trujillo is

currently the Medical Director of the

Federal Medical Center, Rochester,

Minnesota. His predecessor, Dr. Martha

Grogan was officially responsible for the

overall operation of the medical

facilities operating within the

institution as well as for the care and

a7 =

RG

treatment of those inmates who come in

contact with such facilities at the time

events specified herein occurred.

Defendant Dr. Michael Trujillo is sued in

his official capacity.

17.

Defendant Cliff Friese was a

Lieutenant employed by the Federal Medical

Center and a staff supervisor on duty at

the time Plaintiff first experienced

symptoms of the heart attack. Defendant

Friese was charged with responsibility for

the general safekeeping of Plaintiff, as

well as for obtaining immediate care and

treatment of Plaintiff when he _ was

stricken with a heart attack while

Defendant Friese was on duty from midnight

to 7:00 a.m., while Plaintiff was confined

to his cell without access to medical

- 349 =

staff. Cliff Friese is sued in his

official and individual capacities.

18.

Defendant Mayo Foundation is a non-

profit corporation, duly licensed to do

business in the State of _Minnesota.

Defendant Mayo Foundation, by an agreement

Or contract the details of which are not

known to Plaintiff, provides medical

personnel and equipment to the Federal

Medical Center.

19.

Defendant Dr. Alan Wynne was and is a

Resident Physician who is employed by the

Federal Medical Center and/or the Mayo

Foundation. Defendant Dr. Alan Wynne was

officially responsible for the immediate

medical care and treatment of inmates,

including Plaintiff, and for providing or

» £29 =

obtaining further necessary care while he

was at the Federal Medical Center

particularly on September 16, 1987 when he

was stricken with a life-threatening heart

attack shortly after midnight. Dr. Alan

Wynne is sued in his official capacity as

an employee of the Federal Medical Center

and/or Mayo Foundation and individually.

20.

Defendant Sarah Urriste was and is a

Physician’s Assistant employed by the

Federal Medical Center and/or the Mayo

Foundation. Sarah Urriste was officially

responsible for the immediate medical care

and treatment of inmates including

Plaintiff while he was at the Federal

Medical Center particularly on September

16, 1987, when he was stricken a life-

threatening heart attack. Sarah Urriste

~ 120 -

is sued in her official capacity as an

employee of the Federal Medical Center

and/or the Mayo Foundation and

individually.

IV. STATEMENT OF FACTS

21.

Plaintiff was confined to the custody

of the Federal Bureau of Prisons in July

of 1986 by virtue of conviction of

violation of a federal criminal law.

22-

Plaintiff was originally confined in

July of 1986 at the Springfield Federal

Medical Center in St. Louis, Missouri,

after being designated to be placed at the

Federal work camp in Duluth, Minnesota.

Said designation was withdrawn after the

United States District Court permitted

= i253 °

0 NE ES rae ee SS RRL A ge te

: bi

Plaintiff’s attendance at ceremonies at

Big Mountain in Arizona. Plaintiff's

assigned duties at Springfield Medical

Center were as a first class painter.

23.

Plaintiff, upon information and

belief, states that he was confined at

Springfield Medical Center in order to

isolate him because of his political

beliefs as a leader of the American Indian

Movement and his work as an Organizer in

the Indian community. While confined

there, Plaintiff actively expressed his

political and religious beliefs relating

to his right as a Native American to have

access to the sweatlodge and to have

Indian religious leaders come into the

prison and achieved reform and change in

the right of Indian prisoners to practice

- 142°

their traditional Native

religion.

24.

Plaintiff was informed, while at

Springfield Federal Medical Center, that

he would be transferred to the federal

prison near Duluth, Minnesota. In May,

1987, Plaintiff was transferred to the

Federal Medical Center in Rochester,

Minnesota where he was an inmate at all

times material herein.

25.

Within one day of arriving at the

Federal Medical Center, Plaintiff was

assigned to work in the kitchen where the

temperature ranged from ninety (90) to one

hundred and twenty (120) degrees where he

worked until several weeks before his

heart attack. Plaintiff, upon information

* tas *

and belief, states that such treatment

constituted different and discriminatory

treatment of him because of his race,

Native American, and his political and

religious beliefs relating to the American

Indian Movement in that the policy was

that prisoners, such as Plaintiff, over

the age of fifty were not assigned to work

in the kitchen. Such an assignment was

improper under the normal policies of the

Federal Medical Center and such was made

with the knowledge that it constituted a

health risk to Plaintiff.

26.

Defendant Federal Medical Center is a

federal prison specifically equipped with

the medical personnel and equipment

necessary to provide special medical care

to federal inmates. Defendant Mayo

- 1424 =

Foundation, by agreement and/or contract

with the Federal Medical Center, is

specifically equipped with the medical

personnel and equipment necessary to

provide full medical care and treatment to

inmates in life-threatening crises such as

Plaintiff’s heart attack.

27.

Defendant Dr. Alan Wynne, M.D., at

all times material herein, was a

physician, duly licensed to _ practice

medicine in the State of Minnesota, and

there existed between Plaintiff and

Defendant Dr. Alan Wynne a doctor-patient

relationship.

28.

Defendant Dr. Alan Wynne was

negligent and careless in breaching the

standard of care practiced by other

- 445 -

a te BIDEN Ls Jeet i pe se: re Se

\ $ -

members of the medical profession in his

medical treatment of Plaintiff in several

respects including, but not limited to:

A. Failing to diagnose a

serious medical crisis, a heart

attack in progress;

B. Failing to adequately and

competently perform necessary

and prudent tests;

C. Failing to give credence to

the description of symptoms,

complaints, request for

assistance, and request’ for

further testing of his patient,

Plaintiff;

D. Wrongfully prescribing

improper and inadequate

medication for Plaintiff’s

- 126 -

physical symptoms and serious 4

medical crisis; )

E. Effectively denying

Plaintiff the benefit . of

meaningful and competent medical

services by himself or other

medical personnel; and

F. Abandoning Plaintiff without

access to further medical care

in the midst of a life-

threatening crisis and after

having failed to provide

meaningful and competent medical

care and treatment to address

Plaintiff’s life-threatening

medical crisis.

29.

At various times during the period of

confinement, medical doctors and/or

- 127 -

’Seae

personnel employed by Defendants examined

Plaintiff to determine his general health.

30.

Plaintiff on September 16, 1987, at

approximately 12:30 a.m. while confined to

his cell, Plaintiff was stricken with a

heart attack, experiencing severe pain in

his chest and right arm, and was unable to

close his right hand. Plaintiff

instructed inmate Charles Whalen, who was

also living in the cell, to notify the

Lieutenant’s office that Plaintiff was

having a heart attack.

31.

Defendant Lieutenant Cliff Friese,

along with several guards, came to

Plaintiff’s cell in response to his call

for help. Plaintiff informed Defendant

Friese that he was experiencing severe

- 4128 -

pain in his chest and right arn and having

problems closing his right hand and that

he was certain he was having a heart

attack. Lieutenant Friese then radioed

for Defendant Dr. Alan Wynne.

32.

Defendant Dr. Alan Wynne arrived

shortly in response to Lieutenant Friese’s

radio call for help. Plaintiff informed

Dr. Wynne that he was having a heart

attack, the severity of his pain, and the

symptoms. Defendant Wynne sent a guard to

a separate building to obtain two

nitroglycerin tablets which he then

administered to Plaintiff. Defendant

Wynne then diagnosed Plaintiff as having

indigestion and gastritis and ignored

Plaintiff’s explanation that he had no

Stomach problems, repeated statements of

- i2Z3 =

OES! OREN | f. ty

intense pain, and declarations that he was

suffering a heart attack. Defendant Wynne

ignored Plaintiff’s request that he be

taken to the hospital on site at the

Federal Medical Center for an

Electrocardiogran, gave Plaintiff an

antiacid, and left Plaintiff’s room.

Defendant Wynne did not return or in any

way foliow up during the night to check on

Plaintiff’s condition, thus abandoning him

without medical assistance.

33.

Defendant Lieutenant Friese did not

return or in any way check on Plaintiff

during the course of the night’ to

determine Plaintiff’s condition or to

determine if further assistance was

needed. Plaintiff remained in severe pain

- 7320 -

ee

Lo ee eee Bs a ry ?

SRS he Re ae

“: ces fina)

throughout the night, assisted only by his

cellmates.

34.

At 7:00 a.m. sick call, a guard on

duty allowed Plaintiff to go to Sick Call

at the Hospital. Plaintiff arrived at

7:20 a.m. met with Defendant Sarah

Urriste, Physician’s Assistant who was

taking appointment for the morning.

Plaintiff informed Defendant Urriste of

the pain and the symptoms he was having.

Defendant Urriste told Plaintiff to sit in

the waiting area and left Plaintiff

sitting for two hours without rendering

him assistance in any manner. Defendant

Urriste allowed Plaintiff to be removed

from the hospital waiting area at 9:15

a.m. to be taken to a dentist appointment.

The dentist, however, refused to see

~ 333 °

Plaintiff because he looked very ill, and

sent him back to the hospital waiting

area. Defendant Urriste continued to

allow Plaintiff to sit unattended upon

being sent back from the dentist

appointment.

35.

Defendants refused and failed to

properly assess Plaintiff’s medical

condition, to properly diagnose the heart

attack, or to administer the proper course

of treatment and/or medication.

Defendants further abandoned Plaintiff

unattended for a period of over nine hours

in the middle of a life threatening heart

attack without returning to in any manner

ascertain his physical condition.

- i132 =

36.

Defendants knew or should have known

the symptoms which Plaintiff exhibited

evidenced a heart attack which was life-

threatening, yet refused and failed to

diagnose and treat the heart attack and/or

to obtain competent medical personnel to

administer reasonable, competent and

meaningful medical care to Plaintiff.

37.

As a direct result of the failure to

diagnose, misdiagnosis, failure to

prescribe the proper course of treatment,

failure to order proper testing,

prescribing improper treatment, and

abandonment of Plaintiff without rendering

reasonable, competent, or standard medical

treatment, Plaintiff has suffered

- 133 -

permanent damage and injury to his heart,

his arteries, and his general health.

38.

The Defendants’ acts and omissions

constituted deliberate indifference and

conscious disregard for the care and

safety of Plaintiff and thus prolonged the

life-threatening medical crisis and

greatly aggravated the physical damage

caused to Plaintiff by the heart attack.

39.

In doing and omitting to do all of

the actions alleged herein, the above-

named and described employees of

Defendants United States of America,

Federal Bureau of Prisons, Federal Medical

Center, and Mayo Foundation were acting

within the scope of their respective

- 134 =<

employments and with the permission and

consent of Defendants.

40.

Defendants Federal Bureau of Prisons,

J. Michael Quinlan, Director of the

Federal Bureau of Prisons, the Mayo

Foundation, the Federal Medical Center at

Rochester, Minnesota, Warden Peter

Carlson, and Dr. Michael Trujillo, Medical

Director, failed to take the necessary

steps to prepare, administer, and

implement proper and adequate policies to

assure that reasonable, competent, and

meaningful medical personnel and equipment

would be available for medical emergencies

such as Plaintiff suffered, despite the

fact that the institution within which

Plaintiff was confined was designated a

federal medical facility which had

- 135 -

recently been renovated with state of the

art diagnostic and treatment equipment

41.

Defendant Dr. Alan Wynne was a

resident physician employed by Defendants

Federal Medical Center and/or Mayo

Foundation who responded to an emergency

medical call to administer to Plaintiff

when he was stricken with the heart attack

in the early morning hours of September

16, 1987. Dr. Wynne was aware of

Plaintiff’s serious condition, and was

deliberately indifferent to Plaintiff’s

serious medical needs by failing or

refusing to properly evaluate and treat

Plaintiff which resulted in physical

injury and permanent damage, emotional

suffering, pain and suffering. Dr. Alan

Wynne, with negligence and deliberate

- 136 -

indifference to the serious medical needs

of Plaintiff, proclaimed Plaintiff’s heart

attack to be "gastritis", ignored

Plaintiff’s medical symptoms and

complaints, ignored Plaintiff’s request

that an Electrocardiogram be performed,

and abandoned Plaintiff while he was in

serious need of medical treatment in the

midst of a life-threatening crisis, and

when Plaintiff had no access to other

medical treatment.

42.

Defendant Sarah Urriste was a

physician’s assistant employed by Federal

Medical Center and/or Mayo Foundation and

responsible for administering care and

treatment and obtaining immediate medical

Or physicians’ assistance in medical

emergencies. Defendant Urriste was

- 137 -

responsible for intake on the morning of

September 16, 1987, when Plaintiff

presented himself for treatment.

Defendant Urriste was deliberately

indifferent to Plaintiff’s medical needs

by failing or refusing to provide or

obtain necessary care and treatment for

Plaintiff and directing that he keep a

pre-existing dental appointment located

away from the hospital area rather than be

seen by a doctor. Such hegligent and

deliberately indifference by Defendant

Urriste conduct resulted in physical

injury and permanent damage, emotional

suffering, pain and suffering experienced

by Plaintiff.

43.

Defendant Lieutenant Cliff Friese was

employed as lieutenant on the correctional

- 136 -

staff of the Federal Medical Center on

September 16, 1987, and was the supervisor

on duty when Plaintiff’s medical crisis

occurred. Defendant Friese was aware of

or should have been aware of Plaintiff’s

condition and was deliberately indifferent

to Plaintiff’s needs by failing or

refusing to provide or obtain reasonable,

competent or meaningful assistance for

Plaintiff resulting in physical injury and

permanent damage, emotional suffering, and

pain and suffering experienced by

Plaintiff. Defendant Lieutenant Friese

Knew or should have known that Defendant

Dr. Alan Wynne was not providing

reasonable, competent or meaningful

medical assistance, and was deliberately

disregarding and belittling Plaintiff’s

concerns, thus placing his life in

- 139 =

jeopardy. Defendant Lieutenant Friese was

negligent in not relating the urgency of

Plaintiff’s medical crisis, in not

transferring Plaintiff to available on

site medical facilities for complete

diagnosis and such medical treatment as

thereby shown to be warranted, in failing

to obtain reasonable, competent and

meaningful medical assistance during

Plaintiff’s continuing serious medical

crisis once Defendant Dr. Wynne had

abandoned Plaintiff, and failing to alert

a physician whose training and practice

was appropriate and competent to diagnose

and treat the serious medical crisis of

Plaintiff.

44.

Defendant Mayo Pounlistics, on

information and belief, during all times

- 140 =

herein material, employed Defendant Dr.

Alan Wynne as a resident physician and

supervised his specialized medical

studies. On information and belief, the

services of Dr. Alan Wynne and others were

provided by Defendant Mayo Foundation to

Defendant Federal Medical Center,

Rochester, Minnesota, under a contractual

arrangement. Defendant Mayo Foundation

breached its duty and obligation to

properly train and supervise Defendant Dr.

Alan Wynne and to assure that medical care

being provided by said doctor and within

said institution constituted reasonable,

competent and meaningful medical care.

45.

Defendants Bureau of Prisons and

Federal Medical Center had adopted as an

institutional policy, within which

- 141 -

Defendant Dr. Wynne operated, ignoring the

medical emergencies of persons which

occurred during the night in cases where

the medical condition cannot be

immediately ascertained thus exposing

inmates, including Plaintiff, to risk of

greater physical injury and damage,

deterioration of their physical condition,

escalation of the severity of the medical

Crisis, and pain and suffering.

46.

Defendants Federal Bureau of Prisons,

Federal Medical Center, and Mayo

Foundation had in place reasonable and

proper medical equipment, and competent

professional medical personnel immediately

available, capable of immediately

diagnosing the serious medical needs and

condition of Plaintiff but under the

- 142 <=

policies of the Federal Medical Center

Plaintiff was denied access to and the

facilities and personnel.

47.

During the early morning hours of

September 16, 1987, Defendants knew or

Should have known that Plaintiff was in a

helpless condition, yet they failed and

refused to diagnose or treat Plaintiff.

AS a result of Defendants’ acts and

omissions, Plaintiff suffered unnecessary

physical injury and permanent damage,

emotional suffering, and sein and

suffering.

48.

Defendant Federal Medical Center is a

federal prison deliberately established

and equipped as a medical hospital for the

care and treatment of medical needs and

- 143 -

had all proper and adequate facilities on

site at the prison to treat Plaintiff's

medical crisis properly and/or to initiate

diagnosis and treatment before

transferring Plaintiff to Mayo Foundation

and/or its affiliates. Defendants,

however, refused and failed to place

Plaintiff in these proper facilities,

instead abandoning him for over nine hours

without medical care after his initial

contact with a physician, Defendant Wynne.

As a result, Plaintiff did not receive

adequate care and treatment of his serious

and life-threatening medical needs and was

permanently injured.

49.

At all times during Plaintiff’s

medical crisis, his care and custody was

entrusted to the designated correctional

- 144 -

POT rere rn

ees. Maccunleadaie ot

officers, particularly Defendant

Lieutenant Friese, and medical personnel

of Defendants, particularly Defendant Dr.

Wynne, resident physician, and Defendant

Sarah Urriste, physician’s assistant.

Defendants Friese, Wynne and Urriste, via

their acts and omissions, exhibited a

deliberate indifference and conscious

disregard of the known andi life-

threatening condition of Plaintiff. Asa

result of the acts and omissions of

Defendants Friese, Wynne, and Urriste,

Plaintiff’s condition went unattended and

Plaintiff suffered permanent injury.

50.

Defendants, in their acts and

omissions, were further negligent and

further breached their duty of care owed

to Plaintiff in that had a dentist not

- 443°

etl sti neat celal

MAA. ED SE Cos Ee MED SERS FP A,

SPAWAR OTH + AA ee

recognized that Plaintiff was experiencing

a serious medical crisis and arranged for

medical treatment for Plaintiff, the

negligence of Defendants would have led to

further denial of medical care and

attention to Plaintiff in the midst of a

life-threatening crisis.

51.

Defendants and their employees owe a

duty of care to provide reasonable medical

care to Plaintiff as an inmate

incarcerated by Defendants in order to

prevent physical and mental damages and

loss to Plaintiff as an incarcerated

inmate.

52.

Defendants and their employees

negligently breached the duty of care owed

to Plaintiff to provide reasonable medical

- 146 =

care, specifically Plaintiff, in the midst

of a heart attack, was so casually

observed and ignored by Defendants that he

was is diagnosed and thereafter abandoned

to languish for over nine hours before

Plaintiff received any treatment for or

attention to his medical crisis.

$3.

That among the reasons for

Defendants’ indifference to the safety,

well-being, and physical health and needs

of Plaintiff was Defendants’ knowledge

that Plaintiff is an American Indian, is a

founder of the American Indian Movement,

had been an outspoken advocate on behalf

of American Indian rights for over two

decades, and was an advocate for the

rights of American Indian prisoners within

~ 147 =

st ie eta i ihe oy

7a ae 1 - =

) aan a

. - jn } . a,

_ aa as, 7 one

a ” as 7"

a aes

the institution into which he was

confined.

54.

As a direct and proximate cause of

the acts and omissions of the Defendants,

Plaintiff suffered physical injury and

permanent damage, emotional suffering, and

pain and suffering, including but not

limited to a severely damaged heart and

blocked artery. Plaintiff has required

extensive hospitalization and has and will

in the future require medical care and

attention and pharmaceuticals, all arising

from the negligence of Defendants and each

of them.

55.

Plaintiff has and in the future will

be required to restrict and limit his

daily activities.

- 148 -

56.

All of the foregoing acts and

omissions constituted deliberate and

wilful indifference of the Defendants to

the serious and life-threatening medical

needs of Plaintiff and resulted in the

unnecessary and wanton infliction of pain

and suffering upon Plaintiff and

ultimately resulted in permanent physical

injury and damage occurring as a result of

the acts and omissions of Defendants on

September 16, 1987, while still in the

care, custody, and control of the

Defendants.

S7.

Plaintiff, as A result of the

Defendants breach of the duties owed to

him, including but not limited to

negligence, medical malpractice, and

- 149 -

beet ta etc as eae

deliberate indifference to his serious

medical needs, suffered physical injuries

including, but not limited to, permanent

damage to his heart and the almost

complete closure of a major artery to the

heart, all of which damage imposes

continuing physical limitations upon

Plaintiff and places him in continuing

risk of further episodes of heart attack

Or serious irregularity endangering his

life.

58.

That the negligence and wrongful

conduct as set forth above of Defendants

and their employees is the direct and

proximate cause of injury and damages

suffered by Plaintiff.

- 3350 =

ees

V. CAUSES OF ACTION

59.

Paragraphs 1 through 58 above are

incorporated herein by reference as to

each of the causes of action specified

below.

60.

With respect to each of the causes of

action, Defendants knew or should have

known of Plaintiff’s condition; knew or

should have known the generally recognized

standards of medical care; and knew or

should have known the consequences to

Plaintiff of their acts and omissions as

described in paragraphs 1 through 52 above

and chose with negligence and _ gross

indifference to proceed despite such

consequences.

= 3234 *

61.

FIRST CAUSE OF ACTION

Negligence

Plaintiff repeats and realleges. the

allegations as set forth herein above

within paragraphs 1 through 60.

By reason of the individual and

collective negligence of each Defendant

and as a direct and proximate result of

such negligence, Plaintiff has suffered

Serious and permanent physical and

emotional injury, including but not

limited to permanent heart and artery

damage, together with associated pain and

suffering, mental distress and physical

limitations.

Plaintiff has required extensive

Surgery and hospitalization and has and

will in the future require medical care

- i324 *

and attention and pharmaceuticals,

together with limitation of his daily

activities, all arising from the

negligence of Defendants and each of them.

62.

SECOND CAUSE OF ACTION

Medical Malpractice

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

The acts and omissions set forth

above occurring within the doctor-patient

relationship between Plaintiff and

Defendant Dr. Alan Wynne, M.D., operating

through his employer the Mayo Foundation,

constitute gross negligence and medical

malpractice in that said Defendant was

negligent and careless a the

standard of care practiced by other

= 353 -

a eS -Na

eRNpES Ss wr POLED ee: oN hoy Raton,

members of the medical profession in his

care and treatment of Plaix» ff as

specified above.

As a direct and proximate result of

Defendants’ negligence, medical

malpractice, and breach of the standard of

care practiced by other members of the

medical profession, Plaintiff has suffered

serious and permanent heart and artery

damage together with other physical and

emotional injury with associated pain and

suffering and mental distress. Further,

as a direct and proximate result of such

negligence, medical malpractice, breach of

the standard of care, and malfeasance,

Plaintiff has required extensive surgery

and hospitalization and has and will the

future require medical care and attention

and pharmaceuticals, together with

- 456 ©

limitations of his daily activities, all

arising from the negligence of Defendants

Dr. Alan Wynne, M.D. and the Mayo

Foundation.

63.

THIRD CAUSE OF ACTION

Fifth Amendment Claim

Plaintiff repeats and realleges the

allegations as set forth herein above

within paragraphs 1 through 60.

The Defendants’ acts and omissions,

taken individually and in theiretotality,

constituted deliberate indifference to

Plaintiff’s serious medical needs and

constituted violations of the Fifth

Amendment to the Constitution of the

United States, which prohibits

discrimination and/or unequal treatment

- 135 ~

ieee Oo et coc ee

nee .

based upon race, color, religion, or

political belief.

64.

FOURTH CAUSE OF ACTION

Eighth Amendment Claim

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

The Defendants’ acts and omissions,

taken individually and in their totality,

constituted deliberate indifference to

Plaintiff’s serious medical needs and

constituted violations of the Eighth

Amendment to the Constitution of the

United States, which prohibits cruel and

unusual punishment.

- i136 «

A see hile Sain Pat Dd my A ee eh wie

65.

FIFTH CAUSE OF ACTION

Civil Rights Violation

42 U.S.C. §1981

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

Plaintiff while confined within the

care, custody and control of the Defendant

Federal Bureau of Prisons had a right to

the full and equal benefit and protection

of all laws and regulations as is enjoyed

by white citizens and had a right to equal

treatment and not to be made to suffer

punishment or pain of a greater or

different kind than that suffered by white

citizens.

Defendants treated Plaintiff

differently than other prisoners through

- 3137 =

—-S = Se ee ee er a ee Te oe SS pw wore eee ce sh er Oe ee ee

failure to provide reasonable, competent,

and standard medical care because of their

bias against Plaintiff based upon his race

the fact he is a leader of the American

Indian Movement, an Indian community

organizer, and an advocate on behalf of

political beliefs and ‘religious rights for

American Indians both outside of and

within the prison system, all in violation

of 42 U.S.C. §1981. Plaintiff was further

treated differently to his disadvantage

through prison and work duty assignment

exposing him to otherwise unacceptable

medical health risk.

Plaintiff suffered permanent physical

and emotional injury, including permanent

heart and artery damage, together with

pain and suffering all as described herein

above, arising from the unequal treatment

“. 308°

by Defendants biased against him because

of his race and color - American Indian,

and political and religious beliefs.

That as a direct and proximate result

of such violation of Plaintiff’s Civil

Rights, Plaintiff has suffered permanent

physical and emotional injury, including

but not limited to permanent and disabling

heart and artery damage, together with

pain and suffering and has and will

further experience physical limitations

and the need for continuing medical care,

pharmaceuticals and hospitalization.

66.

SIXTH CAUSE OF ACTION

Civil Rights Violation

42 U.S.C. §1985(c)

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 56.

Defendants by and among themselves

conspired to and violated Plaintiff’s

civil rights by depriving him, either

directly or indirectly, of the equal

protection of the laws and/or of equal

privileges and immunities under the laws

as set forth above, all in violation of 42

U.S.C. § 1985(c).

Plaintiff suffered permanent physical

and emotional injury including permanent

heart and artery damage, together with

pain and suffering, as described

- 160 -

hereinabove arising as a direct and

proximate result from such denial of his

civil rights.

That as a direct and proximate result

of such violation of Plaintiff’s Civil

Rights, Plaintiff has suffered permanent

physical and emotional injury, including

but not limited to permanent and disabling

heart and artery damage, together with

pain and suffering and has and will

further experience physical limitations

and the need for continuing medical care,

pharmaceuticals and hospitalization.

67.

SEVENTH CAUSE OF ACTION

Statutory Claim

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

- 16] =

ER Tr OE PP TELE

Defendants had a duty under Minnesota

Statute §144.651 and federal law, to

protect Plaintiff against abuse and to

prohibit cruel treatment. Defendants

failed to carry out their duty.

That as a direct and proximate result

of such deliberate conduct and/or

deliberate indifference of Defendants to

Plaintiffs medical needs, Plaintiff

suffered physical injury, permanent

damage, emotional suffering, and pain and

suffering as described hereinabove.

- 162 -

ti ee a Ne ee eh) te ee el

68.

EIGHTH CAUSE OF ACTION

Violation of Duty, Director

Federal Bureau of Prisons

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

Defendant J. Michael Quinlan, as

Director of the Federal Bureau of Prisons

owec a duty to Plaintiff under the laws

and regulations of the United States

government to oversee the enforcement of

the laws and regulations governing penal

institutions within the United States and

to oversee the Supervision of the

institutions where Plaintiff was confined.

Defendant violated his duty to

Plaintiff since he knew or should have

known of the acts and omissions which

- i163 °

caused Plaintiff’s physical injury,

permanent damage, emotional suffering, and

pain and suffering, and failed or refused

to take precautionary measures to prevent

injury, damage and harm to Plaintiff, or

failed in his duty’ to promulgate

regulations or issue directives or take

Such actions as would have prevented

injury, damage and harm to Plaintiff.

That as a direct and proximate result

of such violation of duty, Plaintiff has

suffered permanent physical and emotional

injury, including but not limited to

permanent and disabling heart and artery

damage, together with pain and suffering

and has and will further experience

physical limitations and the need for

continuing medical care, pharmaceuticals

and hospitalization.

- 164 -

69.

NINTH CAUSE OF ACTION

Violation of Duty, Warden of

Federal Medical Center, Rochester

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

Defendant Peter Carlson and his

predecessors, as Warden of the Federal

Medical Center, owed a duty to Plaintiff

and other similarly situated under the

laws and regulations of the United States

government to oversee the enforcement of

the laws and regulations governing penal

institutions within the United States and

to oversee the supervision of the

institutions where Plaintiff was confined.

Defendant Peter Carlson’s

predecessor, Dr. Joseph B. Bogen, violated

- 365 =

the duty of the office to Plaintiff since

he knew or should have known of the acts

and omissions which caused Plaintiff's

physical injury, permanent damage,

emotional suffering, and pain and

suffering, and failed or refused to take

precautionary measures to prevent injury,

damage and harm to Plaintiff, or failed

in his duty to promulgate regulations or

issue directives or take such actions as

would have prevented injury, damage and

harm to Plaintiff.

That as a direct and proximate result

of such violation of duty, Plaintiff has

suffered permanent physical and emotional

injury, including but not limited to

permanent and disabling heart and artery

damage, together with pain and suffering

and has and will further experience

- 166 =<

wr es

physical limitations and the need for

continuing medical care, pharmaceuticals

and hospitalization.

70.

TENTH CAUSE OF ACTION

Violation of Duty, Medical Director,

Federal Medical Center

Plaintiff repeats and realleges the

allegations as set forth herein within

paragraphs 1 through 60.

Defendant Dr. Michael Trujillo and

his predecessors, as Medical Director for

the Federal Medical Center, owed a duty to

Plaintiff under the laws and regulations

of the United States government to oversee

the enforcement of the laws and

regulations governing pénal institutions

within the United States and to oversee

- 167 -

a ae BET et) et te, fe

eee as a AP age

the supervision of the institutions where

Plaintiff was confined.

Defendant Dr. Michael Trujillo’s

predecessor, Dr. Martha Grogan, violated

her duty to Plaintiff since she knew or

Should have known of the acts’ and

omissions which caused Plaintiff’s

physical injury, permanent damage,

emotional suffering, and pain and

Suffering, and failed or refused to take

precautionary measures to prevent injury,

damage and harm to Plaintiff, or failed

in her duty to promulgate regulations or

issue directives or take such actions as

would have prevented injury, damage and

harm to Plaintiff.

That as a direct and. proximate result

Of such violation of duty, Plaintiff has

Suffered permanent physical and emotional

- 168 -

injury, including but not limited to

permanent and disabling heart and artery

damage, together with pain and suffering

and has and will further experience

physical limitations and the need for

continuing medical care, pharmaceuticals

and hospitalization.

VI. RELIEF REQUESTED

WHEREFORE, Plaintiff prays for and

requests this Court grant him the

following relief:

1.

That this Court award the Plaintiff

the full value of the damage and injury he

has suffered as a result of the Defendants

acts and omissions, as against the

Defendants jointly and severally in the

amount of $5,000,000.00.

- 169 =

2

That this Court enter a declaratory

judgment, pursuant to 28 U.S.C. $2201,

2202, and Rule 57 of the Federal Rules of

Civil Procedure, declaring that the acts

and omissions of Defendants violated the

right of Plaintiff to be free from

discrimination and _ unequal treatment

because of his race, color, religious

beliefs, and political beliefs as

guaranteed by the Fifth Amendment to the

Constitution of the United States, and

violated Minnesota law.

Se

That this Court enter a declaratory

judgment, pursuant to 28 U.S.C. §2201,

2202, and Rule 57 of the Federal Rules of

Civil Procedure, declaring that the acts

and omissions of Defendants violated the

- 170 -

lS eae es oe a ek oe ee

> . Si, Le ee

right of Plaintiff to be free from cruel

and unusual punishment as guaranteed by

the Eighth Amendment to the Constitution

of the United States, and violated

Minnesota law.

4.

That this Court order the Defendants

tc pay the Plaintiffs costs, expenses, and

attorney’s fees for this action; and

- 171 -

5.

That this Court grant such other and

further relief as this Court deems just

and proper.

Dated: this 18th day of September, 1989.

Respectfully submitted,

LS/

Larry B. Leventhal

Leventhal and Associates

Attorney I.D. # 62534

Suite 420, Sexton Building

529 South Seventh Street

Minneapolis, Minnesota 55415

Phone: 612/333-5747

LS/

Douglas Hall

Legal Rights Center

Attorney I. D. # 39688

808 East Franklin Avenue

Minneapolis, Minnesota 55406

Phone: 612/871-4886

Counsel for Plaintiff

~ 2a *

~_ a Me ws

a ee ~ MJ Le,

9, \5> | ee eas :

> ae i se

VERIFICATION

I, Clyde Bellecourt, the Plaintiff

herein, being first duly sworn upon oath,

declare and allege that I have read the

above and foregoing Complaint, know the

contents herein, and that the same is true

to the best of my knowledge and belief.

LS/

Clyde Bellecourt, Plaintiff

Subscribed to and sworn to before me

this 18th day of September, 1989.

LS/

Notary Public

- 173 -

CLYDE H. BELLECOURT, #02501-041

2419 18th Avenue South,

Minneapolis, MN 55404

November 29, 1988

Associate Warden (Programs)

Federal Medical Center, Rochester

U.S. Department of Justice

Federal Bureau of Prisons

Rochester, MN 55901

RE: Request for Administrative Remedy

Dear Associate Warden Olson:

I am enclosing herewith, a Request

for Administrative Remedy on form BP-DIR-

9, with an attached account specifically

setting forth the circumstances of which I

make complaint.

It is my view that while I was an

inmate at the Federal Medical Center,

Rochester I suffered extensive medical

deterioration due to the fact that I did

not receive timely treatment for a heart

attack while it was in progress. In fact,

as is elaborated upon in my account, I

first alerted appropriate prison personnel

to my medical emergency at 12:30 a.m. on

September 16, 1987. However, I received

no bona fide medical attention until

approximately 9:45 a.m. the following

morning.

- 4176 =

ts tence

I have presented my complaints

seeking an appropriate rememdy to various

prison personnel including Keith Farrell,

my counselor; Paul Schultz, my case

manager; Associate Warden Helman; and

Hospital Administrator Dr. P. Benantz.

The matter, however, has not been resolved

and I am therefore addressing to you the

attached formal Request for Administrative

Remedy.

You may contact me at the above

address. My telephone is (612) 722-4423.

Alternatively you may contact me through

one of my attorneys, Larry Leventhal, 420

Sexton Building, 529 S. 7th Street,

Minneapolis, MN 55415 or Douglas Hall,

Legal Rights Center, 808 E. Franklin Ave.,

Minneapolis, MN 55404.

Thank you for your attention to this

matter.

Very truly yours,

Clyde H. Bellecourt

- 173.°

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BP-DIR~-9 REQUEST FOR ADMINISTRATIVE REMEDY

PRISON FORM NUMBER: RCH 1330.7

CLYDE H. BELLECOURT, #02501-041

While an inmate at the Federal

Medical Center, Rochester, Minnesota, the

undersigned Clyde Bellecourt, Registration

Number 02501-041, suffered a severe heart

attack on September 16, 1987. The medical

treatment given myself while suffering

this heart attack indicated gross

indifference to my serious medical needs.

As a result, I suffered pain and mental

anguish, and am now permanently physically

disabled, and subject to loss of ability

to fully lead my life as prior to the

substandard and negligent care I received.

The Federal Medical Prison at

Rochester, Minnesota, owes all prisoners

- 177 -

including myself a duty to provide

reasonable medical services particularly

in that prisoners do not have access to

physicians of their own choosing. The

care I received from prison staff was

substandard and evidenced gross

indifference to my well-being in a life-

threatening situation. Specific staff

members from whom I requested an

explanation regarding the lack of medical

attention I received include: Warden

Joseph B. Bogan and Lieutenant Friese.

Further, the institution in which I

was held at the time I suffered the heart

attack is a Federal Medical Center with

facilities available to render’ the

treatment I was denied.

- 176 =

On September 16, 1987, at about 12:30

a.m. I instructed Inmate Charles Whalen,

who was living in my room, to notify the

Lieutenant’s Office that i felt that I was

having a heart attack. At that time I was

experiencing severe pain in my chest, my

right arm, and I was unable to close my

right hand.

Lieutenant Friese, who was on duty,

did respond to my call for help, long with

several guards. Mr. Friese asked me what

the problem was. I informed Mr. Friese

that I was experiencing severe pain in my

chest, arm, and having problems closing my

right hand, and I was sure that I was

having a heart attack. The Lieutenant

immediately radioed for help, and shortly

- 179 =

thereafter resident physician Dr. Alan

Wynne arrived.

Dr. Wynne examined me and kept asking

me the following question: On scale of 0-

10 what would I say the severity of my

present pain was? I told him I would to

rate it a 10. He then asked me if I had

experienced pain like this before? I told

him that I had been shot just below the

heart in 1973. He then asked me if the

present pain that I was experiencing was

any comparison to that. I informed Dr.

Wynne that my present pain was much worse

than the pain of being shot. Dr. Wynne

having no nitroglycerin with him sent a

guard to another building to get some.

Two tablets were than given to me, but

they only relieved the pain partially for

- 160 -

ee re

ec fre

just a few seconds. After further

examination Dr. Wynne began to diagnose my

pain as indigestion and gastritis. At

this point I began to get very upset with

the type of treatment I was receiving

because I was sure that I was having a

very serious heart attack. However, I was

unable to convince Dr. Wynne that I was

having a heart attack. I told him several

times that I had no problems digesting

food. I could eat just about anything,

and have no stomach problems. I have no

medical history of stomach problems. It

was about eight hours after I had dinner

that these pains began, and I was not

constipated. It was my feeling, which I

expressed, that I should be taken to the

hospital for an Electrocardiogram.

However, Dr. Wynne stated I only had

- 181 -

Wis shat) PMNS dato 1 ei

gastritis and gave me an antacid. Dr.

Wynne then advised me that if I still had

this problem later on I should put in

another call.

My roommates lent me some pillows so

I could arch my back in a setting

position, as this was the only way I could

relieve some of the pressure and pain. I

was in continuous pain throughout the

night. At about 4:30 a.m. the pain got

even worse, and I became very dry. Since

I was having a hard time breathing, I got

out of bed to get a drink of water. I had

a very hard time just walking to the

drinking fountain about 30 yards from my

room, and barely made it. back. I thought

of calling for the Doctor once again, but

also felt that they would not listen to

- 182 -

me, nor believe me in any war. I was even

afraid to go to sleep at this point in

fear that I would never wake up. However,

I was so exhausted that I eventually

blacked out.

I awoke again in severe pain and

Sweat at 6:30 a.m., and made up my mind

that I would stay awake until 7:00 a.n.

Sick Call and that perhaps then I might be

able to convince someone at the hospital

to check my heart, or maybe I could at

least contact the Warden, and ask for

help. Shortly after 7:00 a.m. the Officer

On duty came by to check on me. He told

me that I looked very bad and should go

over to the hospital. I had a very

difficult time just getting dressed. It

was very hard just to walk. About halfway

- 163 -

to the hospital I had to rest momentarily

on some benches. I then proceeded to the

hospital.

I arrived at the hospital about

7:20 a.m. and I met with Physician’s

Assistant Sarah Urriste who was making

appointments that morning. I informed

here of the pain I was having. She

realized at that point that I was the same

person having chest pains earlier in the

morning. She asked me the same standard

questions, on a scale of 0-10 where would

I put my present pain in comparison to

earlier in the morning when I _ was

diagnosed by Dr. Wynne. I told her that I

would have to rate my present pain at an

11, because it was bad at this point. She

informed me that I should not go to work,

- 184 -

and I should have a seat in the waiting

room and they would take care of me

—_ >

immediately.

I sat in the waiting room for almost

two hours, until 9:15 a.m., with no

assistance at all. During the same period

several other inmates with minor colds

were being taken care of. At 9:15 a.m. I

had a previously scheduled dental

appointment, and dental personnel came and

got me to take a mold for a partial

denture. I was in the dental office for

just a few minutes, when Dr. Soddard, the

Dentist and his Assistant Michelle sent me

back to the waiting room, stating that I

looked really bad health wise.

- 165 -

a te ot ES

At about 9:45 a.m. Dr. Thorne came

into the hospital. I was taken into the

examining room and hooked up to the

Electrocardiogram machine. It was then

confirmed that I had a heart attack, and

was still having a heart attack. An

ambulance was called from St. Marys

Hospital in Rochester. When they arrived

I was given shots to relieve the pain,

hooked up to IV’s and rushed downtown.

I spent nine days at St. Marys

Hospital at which time an Angiogram was

taken, which was able to pinpoint the

exact damage to my heart. One of my main

arteries in the front of my heart, half-

way down, was completely closed, another

artery, which branched off from this

artery, is 80% closed.

» 336 <

I was discharged from St. Marys

Hospital on September 24, 1987, and was

placed in the Medical Surgical Unit at the

Medical Center.

I believe that there was outright

negligence by the staff of the Federal

Medical Center. This negligence has

caused irreparable damage to my heart, and

my future health.

Specific staff, under the direction

of the Federal Medical Center, who proved

grossly indifferent to my medical crisis

include Resident Physician Dr. Alan Wynne,

and Sarah Urriste, Physician’s Assistant.

Dr. Alan Wynne failed to take prompt

action in a medical crisis by

- 7 <=

cl lie is a

misdiagnosing the heart attack as

"gastritis", by ignoring medical symptoms,

by not taking my complaints seriously and

by abandoning me while I was in need of

medical treatment in the midst of a life-

threatening crisis with no access to other

medical assistance.

Sarah Urriste, Physician’s Assistant,

failed to fulfill her duties by ignoring

me while I was in the midst of a heart

attack, leaving me unattended while she

Saw o it that patients with complaints of

colds and other less serious symptoms were

treated, and by allowing me to be taken

off for a dental appointment while in the

midst of a heart attack.

- 166 <

sii liad

sn. <Ciapk ds. pet ee ee

i ie ea

These staff persons acting on behalf

of the Federal Medical Center failed to

provide me with proper medical care as was

their duty, and as a result of their

negligent breach of their duty for care

and their gross indifference to my medical

needs in the middle of a life-threatening

crisis, I suffered needless physical pain,

mental anguish, and have been permanently

disabled because of permanent damage to my

heart.

Associate Waraden Mr. Helmen and Dr.

P. Benantz, Hospital Administrator, came

to see me and asked me many questions

shortly after I was released from St.

Marys Hospital. I assume that they were

investigating the charges of negligence

that I made, both publicly and to Federal

- 169 =

Medical Center officials, or at least

trying to determine what happened to me.

I discussed my complaints both with Paul

Schultz, my case manager, and with Keith

Farrell, my counselor, neither of whom had

any resolutions to offer.

As resolution to this matter, I seek

an investigation into the substandard

medical care which I received and a full

explanation of the causes. I also request

compensation for the pain and suffering I

endured, for the permanent injury to my

health arising form damage to my heart

which would not have occurred had I

received timely medical care during the

crisis I was suffering.

- 4190 =

I further believe that the

indifferent medical care to which I was

subjected may have been the result of

prejudice against me as an American Indian

and/or due to my leadership role in the

American Indian Movement.

Respectfully submitted,

Clyde H. Bellecourt

#02501-041

2429 18th Ave. S.

Minneapolis, MN 55404

cc: Douglas Hall, Esq.

Larry B. Leventhal, Esq.

- 3193 =

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KEVERRAL SUMMARY

VEDERAL MEDICAL CENTER

ROCHESTER, MINNESOTA

INMATE NAME: BELLECOURT, CLYDE

REG. WO: 02501-04/

DOB: 05-08-1936

DATE: October 27, 1987

Admission Diagnosis: Status post anterior wall MI.

History of Present Illness: The patient is a 5l-year-old Native American, who

Geveloped substernal chest pressure on early a.m. Of 09-16-1987. That morning

he was admitted to St. Mary's Hospital and found to have had an acute anterior

wall MI. His hospital course vas complicated by continuing angina on @

Nitroglycerine drip. He had a coronary angiogram done during this hospital-

ization that showed his left ventricular ejection fraction was 56%. He had

100Z mid LAD lesion, 30% stenosis of the first obtuse marginal, 80Z stenosis

of the second obtuse marginal and 50Z stenosis of the left posterior descend-

ing artery. He also had 302% stenosis of the mid right coronary artery. He

completed his anterior wall MI and his course was uncomplicated after that

except for what was felt to be some wild chest pressure, possibly angina that

was relieved once he was started on Isordil.

The patient underwent an exercise MUGGA test prior to his discharge and was

found to have apical dyskinesis with no change in his wall motion as exercise

continued. His left ventricular ejection fraction went up from 50Z to 572%

with exercise. He was discharged to the Federal Medical Center on 09-24-1987,

The patient's risk factor for coronary artery disease were positive for family

history in both his mother and his father. He also had positive smoking

history and s moderately elevated cholesterol.

Past Medical History: Past medical history is significant for gonorrhea that

was treated in 1948. He was involved in a motor vehicle accident in 1959

which resulted in a broken hand and head injury. He had hepatitis A in 1960.

He suffered a gunshot wound to the abdomen in 1973. The bullet was removed

in Winona, South Dakota. He had a transfusion during that surgery. He had a

history of alcohol abuse and has had none in 16 years. <

Medications at Time of Bospital Discharge:

Cardiazem 30 mg four times daily.

Isordil 5 mg four times daily.

Sublingual Nitroglycerine as needed.

if

Admission Physical Exam: Physical exam at the time of admission showed him to

have a blood pressure of 94/66, a pulse of 64 which was regular.

HEENT: Unremarkable. His neck was supple. He had no carotid bruits. His

196

Bellecourt, Clyde #6 _:-04) OGcteber 27, 107 Te

Referral Summary ae

juguler venous pressure vas norma).

Lungs: Clear to auscultation and percussion.

Weart: Wormal S$, with'ne $.. S or mureurs. The patient had norms] pulses

peripherdily. Me hoe on echymosis in the left groin status post his

coronary angiogras.

Abdomen: Soft, nontender vith normal bowel sounds. There were no masses

present. He has « well healed midline surgical scar.

Rectal: Exam showed no prostatic nodules and was gusisc negetive.

Admission Laboratory: Showed that the patient's electrolytes were vithin

normal limits a:d his potassium was 4.4. His white count was normsl. His

hemoglobin was 14.4 with « normal differential. His urinalysis was clear.

His chest x-ray showed changes consistent with an“anterier leteral syocardia!

infarct, but showed no scute ischenic events at the time of his return. Chest

x-ray showed thet the heart was normel in size and thet the pulmonary

vasculature was normal in sise and distribution. Be had evidence of old

healed rib frectures. There was no sign of acute pulmonary disease. His KIV

status is negative and his hepatitis B surface antigen is negative.

Boepitel Course: Hr. Bellecourt returned from St. Mary's on 09-24-1987. ie

was admitted to the Med/Surg Unit for post MI care. Since he hed « subeaxina)

stress test at the Mayo Clinic without signs of further ischemia it was

decided to stop his Cardiases and Isordil because he was complaining of head-

aches with Isordil. Be was placed on SO mg of Atenolol. This was

individuals efter recent myocardial infarctions. Ower the next few days

developed some chest discomfort that was vague and difficult to pin down

occurred usually postprandially. Ke continued on an exercise program of

walking and eventually elec complained of some vague syuptomatology after one

or two laps that would go away if he continued to work. It was difficult to

decide whether this was actually chest pressure versus shortness of

to deconditioning.

- It

Because of the above concerns that suggested the possibility of post

myocardial infarction angina he was restarted on the Cardiases. He was

maintained on the Atenolol. This created another problem in that the petient

tended to have blood pressures that ran around 100 systelic to 108 systolic

before his myocardial infarction. On the above medications the patient's

systolic blood pressures vere running in the 90's. Because he continued to

have some of the above complaints his Cardiasem was eventually increased to

60 mg four times a day. On this dose the patient was having systolic blood

pressures in the 80's. While this did not cause his major problems with

dizziness he did feel generally fatigued and did at various times complain of

some orthostatic hypotension symptoms. Also, increased doses of medication

had no effect on his symptoms with exercise.

Because of these problems the patient's Cardiazes was eventually tapered and

discontinued. Ha AA BO Rae treme “with-ttypotension. His symptous

that suggested the possibility of post MI angina in retrospect were apparently

due to deconditioning. They became less and less frequent as his exercise

197

> —--

Belleceurt, Clyde #8 -O4!

Referral Swumary

increased to greater levels. At this point he is able te

miles around the track twice « day and is having no 2 eae mms

suggestive of angine. EKG's obtained with these symptoms also showed no signs

of acute ischemia or changes from his post MI EEG.

i:

| Currently the patient is on 25 mg of Atenolol orally every day and has blood

pressures Chat run in the upper 90's systolically. Me denies symptoms of

| orthostatic hypotension.

Working Diagmosis: Status post myocardial infarction. It is doubtful that

the patient has had post myocardial infarction angine. Most likely his

symptomatology was due to deconditioning and breathlessness. With increased

exercise the patient's symptomatology has progressively improved.

Current Medications:

1) Atenolol 25 mg orally every day. 2

Plan: The patient is doing remarkably well post anterior wall myocardial

\ infarction. The plan at this time is to have a standard Bruce strass test

~~, Gone six weeks after his myocardial infarction. Specifically we are looking

to be able to tell the patient specific exercise limitations. What his target

heart rate showld be when he exercises. This will give us an ides of what

of work he can do and vhen he can go back to work. Also since the

@ Mative American part of his religious ceremonies include spending

DD: 10-27-1987

DT: 10-28-1987/enp

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Monday Oct. 30, 1989

K: Present are Daryl Kosiak, Dr. Alan

Wynne and Dr. Michael Trujillo.

Discussion of Mr. Clyde Bellecourt who

alleges that on Sept. 16, 1987 he suffered

a heart attack and about the treatment

that carried on thereafter. The purpose

of this conversation is to send it on to

Mr. Lonnie Bryant, an Assistant United

States Attorney, to give him a better

feeling of what happened. So,

This text is long and has been trimmed here. Open the source document for the complete record.