Fagundes v. Digiulio et al, No. 3:2012cv01202 - Document 66 (D. Or. 2014)
Court Description: OPINION & ORDER: The Court hereby Orders as follows: 1) in accordance with Defendants' counsel's representations to the Court, the ODOC shall compensate Plaintiff for the value of the wheelchair within thirty (30) days of this Opi nion and Order; and 2) Defendants' Motion for Summary Judgment 49 on Plaintiff's remaining Eight Amendment claim is Granted and this action is Dismissed with prejudice. The Clerk of Court is directed to correct, on this Court's docket, the spelling of Dominic Fagundes's name and Chris Digiulio's name, as reflected in this Opinion and Order. Signed on 12/3/14 by Magistrate Judge Dennis J. Hubel. (gm)
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Fagundes v. Digiulio et al Doc. 66 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF OREGON 9 PORTLAND DIVISION 10 11 12 DOMINIC FAGUNDES, 13 14 15 Plaintiff, No. 3:12-cv-01202-HU OPINION AND ORDER v. DR. CHRIS DIGIULIO, and MS. CAZIER, 16 Defendants.1 17 18 19 Dominic Fagundes 45500 Hebo Rd. P.O. Box 68 Grand Ronde, OR 97347 20 Pro Se Plaintiff 21 22 24 Robert E. Sullivan Oregon Department of Justice Trial Division 1162 Court Street NE Salem, OR 97301-4096 25 Attorney for Defendants 23 26 27 28 1 The Clerk of Court is directed to correct, on this Court’s docket, the spelling of Dominic Fagundes’s name and Chris Digiulio’s name, as reflected in this Opinion and Order. Page 1 - OPINION AND ORDER Dockets.Justia.com 1 HUBEL, Magistrate Judge: 2 Plaintiff Dominic Fagundes (“Plaintiff”) brings this 42 U.S.C. 3 § 1983 action against Defendants Chris Digiulio (“Digiulio”) and 4 Ellen Cazier (“Cazier”) (collectively, “Defendants”), a physician 5 and 6 respectively, 7 inadequate prison medical treatment. 8 claims that Defendants exhibited deliberate indifference to his 9 serious medical needs by confiscating his wheelchair. As explained 10 further below, Plaintiff has not presented evidence that raises a 11 genuine 12 Plaintiff’s medical 13 Accordingly, Defendants’ 14 judgment is granted and this action is dismissed with prejudice. 15 I. FACTS AND PROCEDURAL HISTORY nurse at Deer Ridge alleging issue of Correctional an fact Eighth suggesting needs was motion Institution Amendment claim (“DRCI”), based on Specifically, Plaintiff Defendants’ deliberately (Docket No. 49) response to indifferent. for summary 16 In December 2008, Plaintiff was involved in a motor vehicle 17 accident and sustained numerous injuries, including fractures of 18 both legs and his pelvis necessitating open reduction and internal 19 fixation (“ORIF”) surgery. 20 94-95, 248.) 21 Plaintiff was transferred to the Coffee Creek Correctional Facility 22 (“CCCF”) from the Polk County Jail, where had he been imprisoned 23 since April 2010. 24 cautionary note on [Plaintiff]’s problem list upon transfer from 25 county jail to the [CCCF] Intake Center indicate[d] he received (Digiulio Decl. Attach. 2 at 4-5, 92, Over a year and a half later, on July 14, 2010, (Digiulio Decl. ¶ 3, Attach. 2 at 382.) 26 27 28 Page 2 - OPINION AND ORDER “A 1 methadone while at [the] county jail and [that he] is prone to seek 2 more and more methadone.”2 (Digiulio Decl. ¶ 7, Attach. 2 at 1.) 3 Immediately upon his arrival at the CCCF on July 14, 2010, 4 Plaintiff reported mobility issues, chronic pain and an inguinal 5 hernia, and his treating physician “ordered restrictions of low 6 bunk, no stairs, and the use of a wheelchair for one year.” 7 (Digiulio Decl. ¶¶ 6-7, Attach. 2 at 50.) 8 on September 3, 2010, Plaintiff was transferred to DRCI in Madras, 9 Oregon. (Digiulio Decl. ¶ 3.) About two months later, Plaintiff submitted an inmate 10 communication form that same day, stating: “I have . . . approval 11 for [the] Shutter Creek [Alternative Incarceration Program or] AIP 12 [p]roviding I get your approval as its [sic] not wheelchair 13 friendly, [and] I can walk on a cane.” 14 at 382.) 15 inmate communication form or “kyte” on or before September 7, 2010, 16 when it made a note in Plaintiff’s medical file. 17 Attach. 2 at 10.) (Digiulio Decl. Attach. 2 The medical department at DRCI received Plaintiff’s (Digiulio Decl. 18 The next day, on September 8, 2010, the chief medical officer 19 at DRCI, Digiulio, examined Plaintiff based on reports of chronic 20 pain. 21 22 23 24 25 (Digiulio Decl. ¶¶ 1, 9.) According to Digiulio, the examination revealed that [Plaintiff’s] vital signs were stable, his lower back contained a surgical scar in a vertical fashion over the lumber region and he had a horseshoe-shaped scar over his left hip. There were a few scars along his left lower extremity. He had muscle atrophy in the left lower calf and scarring over the anterior surface of the shin. The quadriceps musculature and hamstring were intact. The left leg full range of motion was asymmetrical compared to the right side hip and knee and was neurovascularly intact. 26 27 2 28 The medical records reveal that Plaintiff also has a history of heroin addiction. (Digiulio Decl. Attach. 2 at 30.) Page 3 - OPINION AND ORDER 1 (Digiulio Decl. ¶ 10.) Digiulio’s “assessment was that [Plaintiff] 2 was given morphine and Vicodin at the CCCF Intake Center with very 3 little in terms of objective findings or history documentation,” 4 and “his pain management regimen between the time of his accident 5 in 2008 and his incarceration [wa]s sketchy at best.” 6 Decl. ¶¶ 11-12, Attach. 2 at 10.) 7 plan of care to discontinue the wheelchair [in order to improve 8 Plaintiff’s 9 [Plaintiff] on Naprosyn, increase Elavil to 75 m[illigrams] and 10 11 mobility by walking obtain old [medical] records.”3 (Digiulio Digiulio thus “recommended a and using a cane], continue (Digiulio Decl. ¶¶ 12, 14.) Digiulio also discussed the need to discontinue the use of a 12 wheelchair with Plaintiff during their September 8, 2010 13 consultation, and Digiulio’s treatment notes include a reference to 14 “DC wheelchair.” 15 Decl. ¶¶ 7, 11.) Digiulio, however, concedes that he did not write 16 “an order discontinuing the wheelchair” until October 13, 2010. 17 (Digiulio Decl. ¶ 15, Attach. 2 at 52.) 18 “was able to walk with the aid of a cane [which was already in his 19 possession] and [he] had left the wheelchair unattended on two or 20 more occasions creating a security concern.” 21 Attach. 2 at 12-13; see also Cazier Decl. ¶¶ 8-9.) 22 confiscated Plaintiff’s wheelchair on the same day Digiulio issued 23 his written order, and two days later, on October 15, 2010, 24 Digiulio wrote “an order authorizing the use of a cane for three (Digiulio Decl. ¶ 14, Attach. 2 at 10; Cazier At that time, Plaintiff (Digiulio ¶ 15, Cazier 25 26 3 27 28 An ODOC technician was ultimately unable to obtain preincarceration medical records regarding Plaintiff’s pain management based on the information provided by Plaintiff. (Digiulio Decl. Attach. 2 at 275-76, 371-72, 375.) Page 4 - OPINION AND ORDER 1 months.”4 2 ¶¶ 13-14.) 3 (Digiulio Decl. ¶ 16, Attach. 2 at 12, 369; Cazier Decl. On October 25, 2010, Plaintiff “was seen by nursing staff for 4 medication and requested his wheelchair be returned. 5 instructed to sign up for sick call but did not follow up with this 6 request.” 7 a month later, on December 4, 2010, Plaintiff informed a registered 8 nurse at DRCI that he “want[ed] clearance to do stairs [because he] 9 want[ed] to go to [Shutter Creek] AIP.” (Digiulio Decl. ¶ 17, Attach. 2 at 13.) He was A little over (Digiulio Decl. Attach. 2 10 at 14.) Then on December 29, 2010, Cazier sent Plaintiff an inmate 11 communication 12 expired in October and that “[t]he only notations on [his] Health 13 Statute [we]re for lower bunk and a cane.” (Digiulio Decl. Attach. 14 2 at 367.) 15 response explaining that his stair restriction On February 2, 2011, Plaintiff followed up with the medical 16 staff regarding his inguinal hernia. 17 14.) 18 response stating: “[Y]our low-bunk status and use of the cane ha[d] 19 be[en] re-ordered for [one] year. 20 a follow-up appointment with the [d]octor regarding your hernia.”5 21 (Digiulio Decl. Attach. 2 at 363.) (Digiulio Decl. Attach. 2 at That same day, Cazier sent Plaintiff an inmate communication You will also be scheduled for Six days later, on February 8, 22 23 24 25 26 27 28 4 As discussed infra Part III, portions of Cazier’s declaration not cited by the Court in this background section include typographical errors regarding the date of confiscation. Nonetheless, Plaintiff’s amended complaint and other record evidence reveal that his wheelchair was indeed confiscated in midOctober 2010. 5 Plaintiff ended up using a cane throughout the remainder of his period of incarceration at DRCI, which ended on November 19, 2013. Page 5 - OPINION AND ORDER 1 2011, Digiulio wrote an order authorizing Plaintiff to perform 2 “light duty work for one year with no lifting over twenty pounds 3 and no hurrying required.” (Digiulio Decl. ¶ 20.) 4 Nearly two months later, on March 30, 2011, Plaintiff was seen 5 by Rodney Buzzas (“Buzzas”), M.D., regarding his hernia and elected 6 to have it surgically repaired. 7 235.) 8 muscle cramps, or back pain during his consultation with Buzzas. 9 (Digiulio Decl. Attach. 2 at 236.) (Digiulio Decl. Attach. 2 at 231, Notably, Plaintiff denied any painful or stiff joints, On April 10, 2011, Plaintiff 10 sent an inmate communication form to the medical staff at DRCI 11 indicating that his pain medication was no longer sufficient and 12 that he “continue[d] to have exc[r]uciating pain in [his] legs 13 [and] ankles.” 14 told to sign up for a “sick call,” but it does not appear that he 15 did so. (Digiulio Decl. Attach. 2 at 360.) Plaintiff was (See Digiulio Decl. Attach. 2 at 18, 360.) 16 On May 6, 2011, Plaintiff’s hernia surgery was performed by 17 Buzzas and “[t]here were no identifiable complications.” (Digiulio 18 Decl. Attach. 2 at 240.) 19 2011, Plaintiff continued to complain about the ineffectiveness of 20 his pain medication and that his wheelchair had been confiscated. 21 (Digiulio Decl. Attach. 2 at 20.) 22 Plaintiff’s leg measurements three days later, on August 15, 2011, 23 which showed a one-inch discrepancy between Plaintiff’s left and 24 right leg. About three months later, on August 12, The medical staff at DRCI took (Digiulio Decl. Attach. 2 at 20.) 25 On September 9, 2011, Plaintiff sent a kyte to the medical 26 staff asking whether Digiulio had ordered a medical shoe and heel 27 lift for his right leg. 28 Plaintiff reported that he had been using a cane and performing Page 6 - OPINION AND ORDER (Digiulio Decl. Attach. 2 at 351.) 1 “some exercise.” 2 later, on September 13, 2011, Plaintiff sent a kyte to the medical 3 staff asking to cancel the weekly weight sessions ordered by his 4 physician because he had only lost three pounds and because he 5 thought 6 (Digiulio Decl. Attach. 2 at 350.) 7 would have to sign a refusal of treatment in order to cancel his 8 workout sessions. he (Digiulio Decl. Attach. 2 at 351.) might slip and fall once it became Four days icy outside. Plaintiff was informed that he (Digiulio Decl. Attach. 2 at 350.) 9 On February 15 and February 27, 2012, Plaintiff reported 10 chronic pain in his legs that was exacerbated by the winter 11 conditions. 12 complaints continued throughout the coming months and were often 13 times accompanied by requests to alter his pain medications. 14 (Digiulio Decl. Attach. 2 at 23-25, 337.) 15 Plaintiff 16 (Digiulio Decl. Attach. 2 at 25, 334.) 17 continued to reflect that a wheelchair was not medically necessary. 18 (Digiulio Decl. Attach. 2 at 27.) (Digiulio Decl. Attach. 2 at 23.) received orthotics and a leg Plaintiff’s In late May 2012, brace from Digiulio. The medical records also 19 On June 5, 2012, Plaintiff reported that his leg “brace d[id] 20 not fit in [his] tennis shoe” and, at sometime prior to July 9, 21 2012, an order was placed for medical shoes that would accommodate 22 Plaintiff’s brace. 23 16, 2012, Plaintiff sent a kyte to medical staff requesting that 24 his wheelchair be returned because he continued to have increased 25 leg pain. 26 registered nurse informed Plaintiff that Tramodol was strongest 27 medication Digiulio was willing prescribe for Plaintiff’s chronic 28 pain. (Digiulio Decl. Attach. 2 at 26-27.) (Digiulio Decl. Attach. 2 at 332.) (See Digiulio Decl Attach. 2 at 330.) Page 7 - OPINION AND ORDER On June On June 27, 2012, a Two days later, on 1 June 29, 2012, Plaintiff was provided with the names of the 2 physicians on the Therapeutic Level of Care (“TLC”) Committee 3 (Digiulio et al.), per his request. (Digiulio Decl. Attach. 2 at 4 329.) 5 On July 1, 2012, Plaintiff requested that his wheelchair be 6 returned because his was having increased pain and swelling in his 7 legs. 8 that needed to sign up for a sick call if he was experiencing 9 worsening symptoms. (Digiulio Decl. Attach. 2 at 328.) Plaintiff was informed (Digiulio Decl. Attach. 2 at 328.) Four days 10 later, on July 5, 2012, Plaintiff filed this § 1983 action against 11 Defendants 12 (“DeCamp”), 13 inadequate prison medical treatment. (Compl. at 4-7; Order Proceed 14 IFP & Dismiss at 2-3.) 15 Plaintiff’s progress notes stating that he would not authorize the 16 use of a wheelchair at that time. 17 28.) and the superintendent alleging three Eighth at the DRCI, Amendment Joe claims DeCamp based on On July 30, 2012, Digiulio made entry in (Digiulio Decl. Attach. 2 at 18 On August 1, 2012, Plaintiff reported continuing pain despite 19 the fact that he had been wearing his leg brace as directed. 20 (Digiulio Decl. Attach. 2 at 28.) Plaintiff therefore requested “a 21 better pain med[ication] than the tram[o]dol.” 22 Attach. 2 at 28.) 23 Digiulio was consulted and said Plaintiff should continue his 24 current treatment plan. 25 August 8, 2012, a registered nurse sent Plaintiff an Inmate 26 Communication Response, stating: 27 28 (Digiulio Decl. An August 1, 2012 progress note indicates that (Digiulio Decl. Attach. 2 at 29.) The provider has been consulted. Ultram has been prescribed for your pain management in addition to other medications. If you feel Ultram is ineffective, please Page 8 - OPINION AND ORDER On 1 let us know so we can remove it from the plan of care. You are encouraged to continue lifestyle modifications and practice comfort measures to help your medications have maximal effect. If you need advice on lifestyle modifications and comfort measures, we will be glad to assist you. 2 3 4 5 (Digiulio Decl. Attach. 2 at 324.) 6 On August 15, 2012, Plaintiff requested the return of his 7 wheelchair and reiterated that his pain medication was adequate at 8 the 9 Plaintiff methadone and/or morphine. other facilities——namely, the facilities that prescribed (Digiulio Decl. Attach. 2 at 10 30-31.) That same day, a registered nurse advised Plaintiff that 11 he needed to consistently take Ultram in the prescribed dosage 12 (i.e., three time per day instead of once per day as Plaintiff had 13 done “for the most part”) since he continued to complain of pain. 14 (Digiulio Decl. Attach. 2 at 323.) 15 that a wheelchair was not authorized at that time. (Digiulio Decl. 16 Attach. 2 at 30.) 17 issued an initial screening order, Plaintiff filed an amended 18 complaint in this proceeding. Plaintiff’s complaints of chronic 19 pain and inadequate pain medication continued unabated thereafter. 20 (Digiulio Decl. Attach. 2 at 30-36.) Plaintiff was also informed On August 31, 2012, after Judge Anna Brown 21 In September 2012, Plaintiff requested morphine and methadone 22 but was informed by Digiulio during a consultation that he would 23 not be resuming narcotic pain medications. (Digiulio Decl. Attach. 24 2 at 30-31.) 25 Communication Form indicating that he was interested in Digiulio’s 26 offer to potentially set up physical therapy appointments so 27 Plaintiff could strengthen his legs and pelvis. 28 Attach. 2 at 319.) On October 2, 2012, Plaintiff completed an Inmate (Digiulio Decl. Two days later, a registered nurse sent Page 9 - OPINION AND ORDER 1 Plaintiff a pamphlet of lower back exercises and instructions, 2 which had been reviewed and approved by a provider. 3 Decl. Attach. 2 at 304, 307.) Nearly two weeks later, on October 4 15, issued 5 dismissing 6 Plaintiff’s Eight Amendment claims, pursuant to 28 U.S.C. §§ 1915A 7 and 1915(e)(2).6 8 shall proceed on plaintiff’s first claim for relief only, against 9 defendants Degulio and Cazier [based on the confiscation of his 10 2012, Judge DeCamp Anna Brown as a named a second defendant as (Digiulio screening well as order two of (Order at 2, 5, “Plaintiff’s amended complaint wheelchair].”) 11 On November 5, 2012, the medical staff at DRCI educated 12 Plaintiff on the importance of physical exercise (e.g., walking and 13 stretching) while staying within his physical limits. 14 Decl. Attach. 2 at 33.) 15 experienced pain and swelling in his lower leg and foot due to an 16 ingrown toenail. (Digiulio Decl. Attach. 2 at 33-34, 302.) Around 17 the same time, based on continued complaints regarding Digiulio’s 18 decision to only prescribe non-narcotic pain medications, Plaintiff 19 was informed that “medications are prescribed based on professional 20 judgment at the discretion of the provider,” and that “the provider 21 specifically 22 continue with [his] current treatment plan.” 23 Attach. 2 at 301, 303.) [stated in (Digiulio In mid- to late November 2012, Plaintiff Plaintiff’s chart] that [he was] to (Digiulio Decl. 24 On December 5, 2012, Plaintiff complained of bilateral lower 25 leg pain and pain on the left side of his pelvis, which was 26 27 28 6 Plaintiff’s second claim for relief was the only cause of action that specifically concerned the alleged denial of adequate pain medications. Page 10 - OPINION AND ORDER 1 exacerbated by the winter conditions, and once again requested a 2 stronger pain medication. 3 Although the nurse observed that Plaintiff moved in a “slow” and 4 “painful” manner, she noted that “the provider ha[d] made several 5 written orders stating that the patient will not be given narcotics 6 and that he is to continue with the prescribed medical regime.” 7 (Digiulio Decl. Attach. 2 at 35.) 8 completed a progress note indicating that Plaintiff was given the 9 opportunity to seek a second opinion regarding the adequacy of the 10 pain treatment he had been offered that fall, and that Plaintiff 11 declined to do so based on the assumption that physicians employed 12 by the Oregon Department of Corrections (“ODOC”) would not disagree 13 with one of their own colleagues. 14 36.) 15 progress notes stating that narcotic pain medications were not 16 medically indicated and that Plaintiff was to continue focusing on 17 improving his functionality, range of motion, and activities of 18 daily living. (Digiulio Decl. Attach. 2 at 35.) On December 17, 2012, a nurse (Digiulio Decl. Attach. 2 at On December 21, 2012, Digiulio made an entry in Plaintiff’s (Digiulio Decl. Attach. 2 at 37.) 19 On January 11, 2013, Plaintiff requested an increased dosage 20 of pain medication (Tramodol) because the “cold weather [wa]s 21 making [his] pelvis and knee hurt more.” 22 2 at 37.) 23 Decl. Attach. 2 at 37.) 24 take his Tramodol dosage in the morning because taking it in the 25 evening disrupted his sleep. 26 Plaintiff reported that he was able to sleep normally when he 27 elected to skip his Tramodol dosage in the evenings. 28 Decl. Attach. 2 at 38.) Plaintiff’s request was approved that same (Digiulio Decl. Attach. A medication order was placed that same day. (Digiulio On January 23, 2013, Plaintiff asked to Page 11 - OPINION AND ORDER (Digiulio Decl. Attach. 2 at 37-38.) (Digiulio 1 day and it appears that he began taking Tramodol at or before noon 2 each day. 3 (Digiulio Decl. Attach. 2 at 38.) On February 13, 2013, Plaintiff complained of pain in his left 4 hip and inquired about a heel lift. 5 38.) 6 that he was being scheduled for an orthopedic consultation, and 7 that 8 medications at that time. 9 A little over two weeks later, on March 14, 2013, Plaintiff was 10 seen by Adam Short (“Short”), a certified physician’s assistant at 11 Desert Orthopedics in Bend, Oregon. 12 39, 248.) 13 14 15 16 (Digiulio Decl. Attach. 2 at On February 25, 2013, the medical staff informed Plaintiff his provider declined to make any changes to his pain (Digiulio Decl. Attach. 2 at 39, 294.) (Digiulio Decl. Attach. 2 at Short’s treatment notes state, among other things: I did provide [the patient] with a heel lift today. I did recommend the [continued] use of an [Ankle Foot Orthosis] brace on the left leg as much as possible to help with his gait. I also recommended physical therapy working on soft tissue stretching techniques. Regarding his hip posttraumatic arthritis, at some point, he may benefit from an intra-articular injection. 17 (Digiulio Decl. Attach. 2 at 250.) 18 lift and insoles from the medical staff at DRCI the following day. 19 (Digiulio Decl. Attach. 2 at 40.) 20 Plaintiff picked up the heel On April 29, 2013, the parties consented to the exercise of 21 jurisdiction by a magistrate judge in this proceeding. 22 over a week later, on May 8, 2013, Plaintiff reported increased 23 pain in his left hip when walking laps at DRCI, and that Tramodol 24 was only effective for one to two hours. 25 2 at 41.) 26 directed and educated on the importance of performing exercises 27 that would improve his strength and range of motion. 28 Decl. Attach. 2 at 41.) A little (Digiulio Decl. Attach. Plaintiff was told to continue his medications as Page 12 - OPINION AND ORDER (Digiulio 1 Plaintiff’s problems persisted thereafter, and in mid-June 2 2013, Plaintiff informed the medical staff that “[t]he only thing 3 that works is methadone.” 4 in mid-June 2013, the TLC committee approved Plaintiff’s use of 5 Baclofen for managing his chronic pain. 6 at 42, 250-51.) 7 reported that he “really noticed difficulty [that day] without 8 Baclofen.” 9 2013, however, Plaintiff began experiencing swelling in his right 10 foot and requested the return of his wheelchair, an extra pillow 11 and an increase in pain medication. 12 46.) 13 alter Plaintiff’s pain medications. 14 281.) (Digiulio Decl. Attach. 2 at 42.) Also (Digiulio Decl. Attach. 2 About a month later, on July 16, 2013, Plaintiff (Digiulio Decl. Attach. 2 at 43.) By early September (Digiulio Decl. Attach. 2 at Around the same time, Digiulio was consulted and declined to (Digiulio Decl. Attach. 2 at 15 Plaintiff had an x-ray taken of his right foot the following 16 day, September 5, 2013, which showed signs of arthritis. (Digiulio 17 Decl. Attach. 2 at 47.) 18 2013, Plaintiff complained of continued pain and swelling in his 19 right leg and the inadequacy of his pain medications, and he once 20 again reiterated that morphine and methadone had “worked” in the 21 past. 22 continue taking the medications prescribed and he was educated on 23 the benefits of walking and consuming an adequate amount of 24 protein. During follow-up visits in late September (Digiulio Decl. Attach. 2 at 48.) Plaintiff was told to (Digiulio Decl. Attach. 2 at 48.) 25 Plaintiff was ultimately released from DRCI on transitional 26 leave on November 19, 2013, and provided with a month’s supply of 27 Lipitor, Elavil, Amlodipine, Tamsulosin, Bacolfen, and Tramadol. 28 (Digiulio Decl. ¶ 3, Attach. 2 at 261.) Page 13 - OPINION AND ORDER On December 10, 2013, 1 Defendants filed their motion for summary judgment, and the Clerk 2 of Court mailed Plaintiff a summary judgment advice notice and 3 scheduling order three days later, on December 13, 2010. 4 month later, on January 21, 2014, the Court granted Plaintiff’s 5 motion to extend the deadline in which to file a response brief to 6 March 17, 2014. Over a The motion is now fully briefed. 7 II. LEGAL STANDARD 8 Summary judgment is appropriate “if pleadings, the discovery 9 and disclosure materials on file, and any affidavits show that 10 there is no genuine issue as to any material fact and that the 11 movant is entitled to judgment as a matter of law.” 12 P. 56(c). Summary judgment is not proper if factual issues exist 13 for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 14 1995). 15 FED. R. CIV. The moving party has the burden of establishing the absence of 16 a genuine issue of material fact. 17 U.S. 317, 323 (1986). 18 genuine issue of material fact, the nonmoving party must go beyond 19 the pleadings and identify facts which show a genuine issue for 20 trial. 21 judgment by relying on the allegations in the complaint, or with 22 unsupported conjecture or conclusory statements. 23 Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 24 summary judgment should be entered against “a party who fails to 25 make a showing sufficient to establish the existence of an element 26 essential to that party’s case, and on which that party will bear 27 the burden of proof at trial.” Id. at 324. Celotex Corp. v. Catrett, 477 If the moving party shows the absence of a A nonmoving party cannot defeat summary 28 Page 14 - OPINION AND ORDER Hernandez v. Celotex, 477 U.S. at 322. Thus, 1 The court must view the evidence in the light most favorable 2 to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 3 1278, 1284 (9th Cir. 1982). 4 existence of a genuine issue of fact should be resolved against the 5 moving party. 6 Where different ultimate inferences may be drawn, summary judgment 7 is inappropriate. 8 136, 140 (9th Cir. 1981). 9 party has limits. All reasonable doubt as to the Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Sankovick v. Life Ins. Co. of N. Am., 638 F.2d However, deference to the nonmoving The nonmoving party must set forth “specific 10 facts showing a genuine issue for trial.” 11 The “mere existence of a scintilla of evidence in support of 12 plaintiff’s positions [is] insufficient.” 13 Lobby, Inc., 477 U.S. 242, 252 (1986). 14 record taken as a whole could not lead a rational trier of fact to 15 find for the nonmoving party, there is no genuine issue for trial.” 16 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 17 574, 587 (1986) (internal quotation marks omitted). 18 FED. R. CIV. P. 56(e). Anderson v. Liberty Therefore, where “the III. DISCUSSION 19 As previously stated, Plaintiff’s § 1983 claim alleges a 20 violation of the Eighth Amendment arising from allegedly inadequate 21 medical treatment, on a theory of deliberate indifference to 22 serious medical needs. (Am. Compl. at 4.) Defendants contend that 23 they are entitled to summary judgment “because the undisputed facts 24 demonstrate 25 discontinued, the discontinuation was ordered for medically sound 26 reasons for the benefit of the Plaintiff and certainly not out of 27 deliberate indifference to his pain or other serious medical 28 needs.” that while [Plaintiff’s] (Defs.’ Mot. at 1.) Page 15 - OPINION AND ORDER wheelchair was indeed 1 “In the Ninth Circuit, the test for deliberate indifference 2 [to medical need] consists of two p[rong]s.” Jett v. Penner, 439 3 F.3d 1091, 1096 (9th Cir. 2006). 4 a serious medical need by demonstrating that failure to treat a 5 prisoner’s condition could result in further significant injury or 6 the unnecessary and wanton infliction of pain. 7 plaintiff must show the defendant’s response to the need was 8 deliberately indifferent.” 9 (9th Cir. 2012) (citation omitted); Crowley v. Bannister, 734 F.3d 10 967, 978 (9th Cir. 2013) (“A prison official violates the Eighth 11 Amendment when he acts with ‘deliberate indifference’ to the 12 serious medical needs of an inmate.”). “First, the plaintiff must show Second, the Wilhelm v. Rotman, 680 F.3d 1113, 1122 13 “Examples of conditions that are ‘serious’ in nature include 14 ‘an injury that a reasonable doctor or patient would find important 15 and worthy of comment or treatment; the presence of a medical 16 condition 17 activities; or the existence of chronic and substantial pain.’” 18 Green v. Bannister, NO. 3:12-CV-00004-LRH, 2014 WL 281293, at *6 19 (D. Nev. Jan. 23, 2014) (citation omitted). 20 the other hand, requires showing (1) “a purposeful act or failure 21 to respond to a prisoner’s pain or possible medical need,” and (2) 22 “harm caused by the indifference.” 23 “Indifference ‘may appear when prison officials deny, delay or 24 intentionally interfere with medical treatment, or it may be shown 25 by the way in which prison officials provide medical care.” 26 Crowley, 734 F.3d at 978 (citation omitted). that significantly affects an individual’s daily The second prong, on Wilhelm, 680 F.3d at 1122. 27 Here, it should be noted at the outset that, on two occasions, 28 Cazier’s declaration erroneously refers to the year Plaintiff’s Page 16 - OPINION AND ORDER 1 wheelchair was confiscated as 2012 instead of 2010. 2 ¶¶ 3 declaration, the abundance of progress notes maintained by the 4 ODOC, 5 complaint all reveal that these were typographical errors and that 6 Plaintiff’s wheelchair was in fact confiscated during mid-October 7 2010. 10, 12.) and the However, the allegations remaining set forth (Cazier Decl. paragraphs in in Plaintiff’s Cazier’s amended 8 For example, the ODOC’s progress notes indicate that the 9 wheelchair was confiscated on October 12, 2010, returned in the 10 early morning hours the next day after Plaintiff was educated on 11 the proper use of the wheelchair, and then confiscated for a second 12 time later in the evening on October 13, 2010, after Cazier 13 “received [an] order to D/C wheelchair [from] Dr. Digiulio.” 14 (Digiulio Decl. Attach. 2 at 12.) 15 complaint Plaintiff filed on August 31, 2012, clearly alleges that 16 “Dr. Degulio [sic] disallowed the plaintiff’s use of his wheelchair 17 on October 15, 2010, and therefore [it] was confiscated by Nurse 18 Cazier.”7 In addition, the amended (Am. Compl. at 6.) 19 Plaintiff did not submit his own evidence in opposition to 20 summary judgment, choosing instead to devote a large portion of his 21 brief to presenting rhetorical questions and arguments challenging 22 the veracity of Defendants’ statements to the Court.8 23 for Plaintiff is that his rhetorical questions and arguments are The problem 24 25 7 26 27 28 The initial pro se complaint filed by Plaintiff on July 5, 2012, recites the exact same allegation. (Compl. at 6.) 8 Again, the Clerk of Court mailed Plaintiff a summary judgment advice notice on December 13, 2013, and Plaintiff’s response brief was not due until March 17, 2014. Page 17 - OPINION AND ORDER 1 contingent upon the Court construing the facts at the summary 2 judgment stage in a manner consistent with the two typographical 3 errors in Cazier’s declaration. 4 “How then could [Digiulio] have in fact physically written the 5 Physicians Order on October 13, 2010[,] [w]hen Defendants weren’t 6 even 7 wheelchair until October 13, 2012?”) 8 a 9 wheelchair.9 notified clearly of the erroneous matter date (See, e.g., Pl.’s Resp. Br. at 3, of for Plaintiff still having his The Court declines to adopt confiscation of Plaintiff’s 10 It should also be noted that Defendants represent to the Court 11 that the ODOC’s records fail to disclose whether the wheelchair in 12 question belonged to Plaintiff or the ODOC. 13 his declaration: “[Plaintiff] arrived at DRCI in a wheelchair but 14 ownership is not clear from ODOC records. [Plaintiff] reported to 15 me on September 3, 2010 that he was given the wheelchair at the 16 Intake Center but later reported he had it when he went to county 17 jail.” 18 According to Defendants’ counsel, “[i]n light of the unresolved 19 question about the original ownership of the wheelchair, the 20 Plaintiff should be given the benefit of the doubt. As Digiulio stated in (Digiulio Decl. ¶ 13; see also Cazier Decl. ¶ 14.) Defendants ex 21 22 23 24 25 26 27 28 9 Plaintiff seeks compensatory damages in the amount of $1,500 per day for the “730 days at DRCI,” which results in a total of $1,095,000 in compensatory damages. On the Court’s count, 728 days had elapsed between Plaintiff’s transfer to DRCI on September 3, 2010, and the filing of an amended complaint on August 31, 2012. If the Court were to assume that Plaintiff’s wheelchair was not confiscated until October 2012, it would reduce any potential damages period by two years. It would also raise concerns about whether Plaintiff had a good faith basis for allegations made in the pleadings. Page 18 - OPINION AND ORDER 1 rel the Department of Corrections will compensate the Plaintiff for 2 the value of the wheelchair.” (Defs.’ Mem. Supp. at 11.) 3 Per Judge Brown’s second screening order dated October 15, 4 2012, this § 1983 action was to proceed as a single Eighth 5 Amendment claim against Defendants. Nevertheless, the Court agrees 6 that this pro se plaintiff should be given the benefit of the doubt 7 and that he should be compensated by the ODOC for the wheelchair, 8 as proposed by Defendants’ counsel. In the event the ODOC fails to 9 do so within thirty days of this Opinion and Order, the Court notes 10 that it would consider a motion to set aside a judgment as well as 11 a subsequent motion for leave to file a second amended complaint, 12 nunc pro tunc, for conversion of personal property. 13 That said, Plaintiff’s remaining Eight Amendment claim 14 involves choices between alternative courses of treatment——namely, 15 a course of treatment that includes the use of a wheelchair and one 16 that 17 ‘difference of medical opinion . . . [is] insufficient, as a matter 18 of law, to establish deliberate indifference.’” 19 391 F.3d 1051, 1058 (9th Cir. 2004) (quoting Jackson v. McIntosh, 20 90 F.3d 330, 332 (9th Cir. 1996)). 21 involving choices between alternative courses of treatment, a 22 prisoner must show that the chosen course of treatment ‘was 23 medically unacceptable under the circumstances,’ and was chosen ‘in 24 conscious disregard of an excessive risk to [the prisoner’s] 25 health.’” does not. In the Eighth Amendment context, “a mere Toguchi v. Chung, Instead, “to prevail on a claim Id. 26 Allee v. Oregon Dep’t of Corrections, NO. 06-CV-187-JE, 2007 27 WL 2417390 (D. Or. Aug. 21, 2007), is an illustrative example of a 28 case involving choices between alternative courses of treatment. Page 19 - OPINION AND ORDER 1 There, a prisoner sought medical attention on several occasions for 2 pain and reduced range motion in his knees. 3 the plaintiff was treated with pain medication, anti-inflammatories 4 and physical therapy, id., he claimed that the defendants violated 5 his Eighth Amendment rights by denying him the use of a cane and 6 wheelchair, id. at *5. The district court ruled in the defendants’ 7 favor and the Ninth Circuit affirmed on appeal, stating: “The 8 district court properly granted summary judgment on Allee’s Eighth 9 Amendment claim regarding a knee injury, because Allee failed to Id. at *2. 10 controvert 11 condition 12 wheelchair and cane were not medically necessary.” 13 Although Dep’t of Corr., 315 F. App’x 610, 612 (9th Cir. 2009). defendants’ might medical improve with evidence showing increased walking, that and Allee’s that a Allee v. Or. 14 Similarly, in this case, Plaintiff has failed to controvert 15 Defendants’ medical evidence showing that Plaintiff’s condition 16 might improve with increased walking with the assistance of a cane, 17 and that a wheelchair was not medically necessary. 18 testified that he recommended a plan of care to discontinue the 19 wheelchair so Plaintiff “could improve his mobility by walking and 20 using 21 Digiulio’s review of clinical literature suggests that non-narcotic 22 measures associated lifestyle changes, such as weight loss, yoga, 23 exercise and stretching (i.e., the type of activities recommended 24 to Plaintiff), can be as effective as narcotic medications in 25 treating chronic pain. (Digiulio Decl. ¶ 23.) Likewise, Short did 26 not 27 orthopedic consultation. a cane.” recommend (Digiulio a wheelchair Decl. when ¶¶ 12, 14.) Plaintiff Digiulio What’s presented more, for an (See Digiulio Decl. Attach. 2 at 250.) 28 Page 20 - OPINION AND ORDER 1 It is also important to note that just five days prior to 2 Plaintiff’s September 8, 2010 consultation with Digiulio (i.e., 3 when the decision was initially made to discontinue Plaintiff’s use 4 of a wheelchair), Plaintiff sent an inmate communication form a to 5 a “Dr. Perini,” stating: “I have . . . approval for Shutter Creek 6 AIP [p]roviding I get your approval as its [sic] not wheelchair 7 friendly, [and] I can walk on a cane.” 8 at 382.) 9 later about wanting “clearance to do stairs” because he wanted to 10 be transferred to the non-wheelchair-accessible Shutter Creek AIP. 11 (Digiulio Decl. Attach. 2 at 14.) 12 To (Digiulio Decl. Attach. 2 Plaintiff complained to a nurse at DRCI three months conclude, “[d]eliberate indifference is a high legal malpractice or negligence 13 standard. 14 insufficient to establish a constitutional deprivation under the 15 Eighth Amendment.” 16 negligence is insufficient to establish deliberate indifference to 17 serious medical needs.” 18 726 F.3d 1062, 1074 (9th Cir. 2013). 19 case, even when viewed in the light most favorable to Plaintiff, 20 falls short of a showing of medical malpractice or negligence, let 21 alone gross negligence or a “medically unacceptable” course of 22 treatment “chosen in conscious disregard of an excessive risk” to 23 Plaintiff’s health. 24 A showing of medical Toguchi, 391 F.3d at 1060. is “Even gross Lemire v. Cal. Dep't of Corr. & Rehab., The record evidence in this Motion granted. IV. CONCLUSION 25 For the reasons stated, the Court hereby orders as follows: 26 (1) in accordance with Defendants’ counsel’s representations to the 27 Court, the ODOC shall compensate Plaintiff for the value of the 28 wheelchair within thirty (30) days of this Opinion and Order; and Page 21 - OPINION AND ORDER 1 (2) Defendants’ motion (Docket No. 49) for summary judgment on 2 Plaintiff’s remaining Eight Amendment claim is granted and this 3 action is dismissed with prejudice. 4 IT IS SO ORDERED. 5 Dated this 3rd day of December, 2014. 6 /s/ Dennis J. Hubel _________________________________ DENNIS J. HUBEL United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 22 - OPINION AND ORDER
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