Opinion
2:21-cv-00132-JR
06-28-2022
DANIEL J. FISHER, Plaintiff, v. BRAD CAIN, Superintendent, Snake River Correctional; DOC HEALTH SERVICES, Oregon Department of Corrections Health Services, sued in their individual and official capacities, et al.; and BETTY HAWKINS, Risk Management, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Plaintiff Daniel Fisher filed this action under 42 U.S.C. § 1983 against defendants Brad Cain, Betty Hawkins, Garth Gulick, Christopher DiGiulio, Joseph Bugher, Lisa Koltes, Monica Landaverde, Bryon Hemphill, Ashely Clements, Judy Bradford, and Oregon Department of Corrections (“ODOC”) Health Services. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion should be granted in part and denied in part.
BACKGROUND
This case emanates from the medical treatment plaintiff received at Snake River Correctional Institution (“SRCI”) for his re-torn bicep tendon. In early April 2019, while housed at Marion County Jail, plaintiff ruptured his bicep tendon when opening a heavy door, which immediately resulted in a “popping” sound and pain in his shoulder and bicep area. Edwards Decl. Ex. 3 (doc. 34-2). On June 24, 2019, plaintiff underwent surgery for a right proximal bicep tendon tear, which was performed at Hope Orthopedics. Baskerville Decl. Attach. B (doc. 34-2). On July 9, 2019, plaintiff returned to Hope Orthopedics for his first post-operative appointment, during which his provider instructed him to wear a sling for at least the next four weeks, return for a follow-up appointment in one month, and pursue physical therapy. Baskerville Decl. Attach. C (doc. 34-2).
According to Dr. Roberts, ODOC's Medical Director, a bicep tear refers to damage to one of the tendons that attach the bicep to the elbow and shoulder; symptoms “can vary based on the location and severity of the tear and may include: sudden severe pain in the arm, swelling and inflammation, warmth in the area, bruising around the tear, a popping or snapping sound as the injury occurs, difficulty using parts of the arm such as turning the palm over, general weakness in the arm, and changes in the look of the arm such as a gap created where the bicep is no longer in position or the appearance of ‘Popeye muscle' a bulge in the arm above the elbow.” Roberts Decl. ¶ 6 (doc. 24). A tear could be either partial or complete, and is generally “assessed with imaging, including MR or MR Arthrogram.” Puziss Decl. ¶ 5 (doc. 35). “If the bicep tear is severe or nonsurgical options are not effective, surgery may be required. Depending on the severity of the injury and the treatment a person receives, it can take roughly 4-6 months for a partial tear and 6-9 months for a complete tear to heal properly.” Roberts Decl. ¶ 6 (doc. 24); see also Puziss Decl. ¶ 7 (doc. 35) (“[o]ngoing pain without improvement is not normal,” especially with treatment).
Plaintiff was remitted into ODOC custody on July 30, 2019.2 Roberts Decl. Ex. (doc. 24 2). Plaintiff's intake examination noted that he had recently received surgery to repair a right bicep tendon. Roberts Decl. Ex. 1, at 15 (doc. 24-1). Plaintiff also filled out a “Continuity of Care” form and reported his need for “follow up care and rehab” through Hope Orthopedics. Edwards Decl. Ex. 7, at 1 (doc. 34-2). His sling was nonetheless confiscated at that time and no replacement was provided. Fisher Decl. ¶ 2 (doc. 34-2).
ODOC policy reflects that “health care services will be consistent with the standard for such services in the community.” Edwards Decl. Ex. 9, at 1 (doc. 34-2).
Because defendants' exhibits are not individually labelled, the Court cites to the page numbers assigned in the docket.
On August 14, 2019, plaintiff was transferred to SRCI. Roberts Decl. Ex. 2 (doc. 24-2). On August 26, 2019, plaintiff was walking the track when a soccer ball was inadvertently kicked toward him; plaintiff rolled the soccer ball back with his right arm using an underhanded motion. Fisher Decl. ¶ 3 (doc. 34-2). He heard a “pop” in his shoulder and felt the same sensations and pain that he experienced when initially tearing his tendon approximately four months prior. Id.
On September 6, 2019, plaintiff sought care from Health Services for his right bicep, reporting that he felt a “pop in [his] bicep” after rolling a ball that was accompanied by swelling and redness. Roberts Decl. Ex. 1, at 14 (doc. 24-1). Plaintiff also reported that he “need[ed] [follow-up] for bicep surgery.” Id.
On September 29, 2019, plaintiff was treated by Health Services after sending a kyte complaining about his right bicep surgery, his reinjury, and pain. Id. at 13. The nurse noticed a scar and slight indentation on plaintiff's right bicep, which plaintiff reported was not there previously. Id. An examination revealed that plaintiff's grips were equal with both hands; there was no swelling, bruising, or muscle retraction. Id. Plaintiff was offered a low bunk assignment, which he refused because it would cause hardship to his elderly cellmate (who would then be required to use the top bunk). Id. at 13, 26; Fisher Decl. ¶ 4 (doc. 34-2).
On October 2, 2019, plaintiff was seen by Dr. Gulick, who noted that he had a repeat tear of his right bicep tendon. Although there is no indication of an examination, Dr. Gulick determined that plaintiff was “functional” and therefore did not recommend any further treatment. Id. He also informed plaintiff that ODOC does not repair bicep tendons under any circumstances. Id.; Fisher Decl. ¶ 5 (doc. 34-2); but see Edwards Decl. Ex. 11, at 28-19 (doc. 34-2) (Dr. Roberts testifying other inmates have been approved for orthopedic consultations while at ODOC and that “it's [an] individualized” determination).
On October 7, 2019, an x-ray was taken of plaintiff's right humerus to rule out bone injury. Roberts Decl. Ex. 1, at 16 (doc. 24-1).
On October 22, 2019, plaintiff was seen at Health Services with complaints of pain and lack of post-surgical care. Id. at 12. Plaintiff asserted that his right bicep felt like it was torn, and he had discomfort and frequent cramping, with a limited range of motion. Id. at 11-12. The nurse noted that his right bicep “does not appear to be fully intact to upper arm,” and was slightly bulging “even when [plaintiff] fully extends elbow.” Id. at 12. Rest and follow-up with a provider were recommended. Id.
On October 24, 2019, plaintiff returned to Dr. Gulick for his right bicep tendon tear. Id. at 11. Dr. Gulick reiterated that plaintiff's right bicep had re-torn post-surgery in August 2019, but found that a medical review was not indicated. Id. Instead, Dr. Gulick referred plaintiff to a physical therapist for evaluation and input. Id.
On December 18, 2019, plaintiff completed a “Non-Emergency Health Care Request Form,” reporting pain and tingling in his right arm and stating: “Let me see someone other than Dr. Gulick. Like an orthopedic surgeon. Like [Hope Orthopedics] who I was supposed to have follow up care and therapy with. That's why I filled out the continuity of care form on 7-30-19.” Edwards Decl. Ex. 7, at 5 (doc. 34-2). The response simply notified plaintiff that his upcoming physical therapy appointment had been cancelled and “will be rescheduled.” Id.
On December 21, 2019, plaintiff presented to Health Services reporting a detached right bicep, which was accompanied by symptoms of tingling and pain, and an inability to “bend [his] arm completely.” Roberts Decl. Ex. 1, at 10 (doc. 24-1). The nurse observed “an indentation just above the bicep lump that is clumped at the base of the humerous [sic],” along with a decreased range of motion. Id. A follow-up appointment with Dr. Gulick was recommended; plaintiff stated that “he would like a second opinion” because he “was not getting proper care.” Id.
Dr. Gulick presented plaintiff's case to ODOC's Therapeutic Level of Care Committee (“TLCC”) on December 31, 2019. Id. at 10, 25. Nurse Practitioner Clements and Dr. Hemphill were present as part of the TLCC and agreed with Dr. Gulick's recommendation for physical therapy. Id. at 25.
Dr. Gulick returned to the TLCC on January 7, 2020, to present plaintiff's request for right bicep repair. Id. at 9-10, 22. Dr. Gulick, Dr. Koltes, Dr. Hemphill, Dr. DiGiulio, and Nurse Practitioner Clements were present for the committee deliberation and decision. Id. at 22. The TLCC denied plaintiff's request because his arm was “functional.” Id.; Edwards Decl. Ex. 5 (doc. 34-2).
On January 2, 2020, plaintiff completed another “Non-Emergency Health Care Request Form,” reporting constant pain and tingling in his right arm and remarking: “I do not want to be seen by Dr. Gulick, who has acknowledged TWICE its torn, but will not do anything for it!” Edwards Decl. Ex. 7, at 6 (doc. 34-2). Nurse Bradford replied: “This issue is being addressed through the grievance process.” Id.
On January 9, 2020, plaintiff was evaluated by physical therapist Cody Stephens. Roberts Decl. Ex. 1, at 23-24 (doc. 24-1). Plaintiff recounted reinjuring his bicep approximately four months ago, which was accompanied by an immediate “pop” and ongoing cramping, pain, and burning. Id. at 23. Mr. Stephens advised that he could instruct plaintiff on how to perform exercises to strengthen the area surrounding the bicep tear, but the reinjury appeared to be a serious enough that physical therapy would not provide significant improvement. Id. at 23, 34; Fisher Decl. ¶ 9 (doc. 34-2).
Plaintiff filed three additional “Non-Emergency Health Care Request Forms” during January 2020, complaining of ongoing pain and inadequate treatment. Edwards Decl. Ex. 7, at 79 (doc. 34-2). The responding nurses noted plaintiff had been seen by Dr. Gulick twice since October 2019 and that he was scheduled for physical therapy. Id.
On February 6, 2020, Mr. Stephens sent a Home Exercise Program (“HEP”) for plaintiff to follow, explaining that if there was “no improvement in 4-6 weeks [plaintiff] may need an ortho consult.” Roberts Decl. Ex. 1, at 4, 20-21 (doc. 24-1).
In March 2020, ODOC went into lockdown to combat COVID-19, which limited access to Health Services and out-of-facility appointments. Roberts Decl. ¶ 20 (doc. 24).
Between March 14 and May 16, 2020, plaintiff lodged three “Non-Emergency Health Care Request Forms,” denoting that Mr. Stephens recommended surgical repair for his torn tendon, which remained painful, and checking on the status of potential surgery since “physical therapy isn't working.” Edwards Decl. Ex. 7, at 10-12 (doc. 34-2). Plaintiff was instructed that “unnecessary appointments have been cancelled” due to the pandemic. Id.
On May 20, 2020, plaintiff saw Dr. Gulick a third time, again complaining of ongoing pain and lack of improvement in his right arm despite compliance with the HEP provided by Mr. Stephens. Roberts Decl. Ex. 1, at 8 (doc. 24-1). Plaintiff asked Dr. Gulick for assessment by an orthopedic surgeon to at least determine if surgery was necessary. Id. Dr. Gulick noted that plaintiff had a “Popeye like” bicep that appeared to have good flexion and strength. Id. He diagnosed plaintiff with a partial bicep reinjury but told plaintiff he did not believe surgical consultation was necessary. Id. He nonetheless agreed to present plaintiff's request to the TLCC. Id. at 4.
Later that same day, plaintiff sent a kyte to Dr. Gulick as follows:
At our appointment today you stated “Their [sic] (TLC + DOC Health Services) not going to do anything for repairing my right bicep tendon” then you turn around and offer me pain medicine, and more physical therapy; after I told you therapy wasn't working?! As a professional healthcare doctor, why are you doing everything possible to not help me? You are on the TLC Committee! Cody Stephens, MPT told me it needs [to be] repaired!Edwards Decl. Ex. 7, at 13 (doc. 34-2). Dr. Gulick responded, “Being on the committee means I take your case there. I've never seen a proximal tear repaired. Cody Stephens has no idea what ODOC's rules are. PT is your only hope to do better. You are functional now.” Id.
On May 22, 2020, plaintiff presented to Health Services reporting pain and cramping in his right arm and requesting ongoing physical therapy and surgery to fix or reattach his right bicep. Roberts Decl. Ex. 1, at 8 (doc. 24-1). Upon exam, his bilateral radial pulses were equal, but his range of motion in his right upper extremity was decreased. Id. Plaintiff was scheduled for a chart review. Id.
On May 27, 2020, the TLCC - including Dr. Gulick, Dr. Koltes, and Nurse Practitioner Clements - met to discuss plaintiff's request. Id. at 19. Despite plaintiff's ongoing complaints of pain and lack of mobility, the TLCC again denied plaintiff's request for any orthopedic assessment and instead approved “P.T. only.” Id.
Plaintiff saw Mr. Stephens again on June 4, 2020, and he recommended that plaintiff use resistance bands to aid in the HEP. Edwards Decl. Ex. 6, at 3 (doc. 34-2). Plaintiff did not receive resistance bands and was provided with conflicting information about why he could not access them in response to his repeated requests. See, e.g., Roberts Decl. Ex. 1, at 5, 17 (doc. 24-1); Fisher Decl. ¶ 10 (doc. 34-2); Edwards Decl. Ex. 7, at 19, 21-23 (doc. 34-2).
Plaintiff continued to file kytes related to his bicep pain and lack of adequate treatment during the summer. Edwards Decl. Ex. 7, at 14-17 (doc. 34-2).
On July 28 and September 22, 2020, plaintiff was seen by Dr. Hemphill regarding his right bicep tear. Roberts Decl. Ex. 1, at 6-7 (doc. 24-1). During both appointments, plaintiff told Dr. Hemphill he had ongoing pain and cramping that often interfered with his daily life, and that he experienced difficulty with his range of motion and shoulder mobility. Id.; Fisher Decl. ¶ 6 (doc. 34-2). Although Dr. Hemphill's July 2020 notes show a full active range of motion at plaintiff's right elbow, and his September 2020 notes reflect an “obvious deformity” with “good ROM,” plaintiff maintains that Dr. Hemphill did not perform examinations at either appointment. Compare Roberts Decl. Ex. 1, at 6-7 (doc. 24-1), with Fisher Decl. ¶ 6 (doc. 34-2). Dr. Hemphill recommended that plaintiff receive physical therapy, continue his HEP, and return to Health Services as needed. Roberts Decl. Ex. 1, at 3, 6-7 (doc. 24-1).
On October 13, 2020, plaintiff lodged a kyte indicating he was in pain and struggling with his daily routine, and that “the physical therapy DOC Health Services prescribed to my ‘torn' bicep is doing nothing.” Edwards Decl. Ex. 7, at 18 (doc. 34-2). In response, Dr. Hemphill conducted a chart review and ordered physical therapy for plaintiff. Id.; Roberts Decl. Ex. 1, at 3, 5 (doc. 241).
On November 21, 2020, plaintiff went to Health Services presenting with pain in his right bicep. Roberts Decl. Ex. 1, at 5 (doc. 24-1). He agreed to wait to review his complaints until his appointment with Dr. Gulick in two days. Id.
Plaintiff subsequently filed four kytes reporting progressively worsening pain and inappropriate treatment and requesting to be seen by a different provider because “Dr. Gulick is not helpful, he is disrespectful.” Edwards Decl. Ex. 7, at 20-23 (doc. 34-2). In light of plaintiff's ongoing complaints, Dr. Gulick performed a chart review on December 30, 2020, and ordered one session of physical therapy. Id. at 23; Roberts Decl. Ex. 1, at 2 (doc. 24-1).
On January 25, 2021, plaintiff commenced this action pro se, alleging that defendants violated his Eighth Amendment rights. As relief, plaintiff requests $500,000 in damages and an injunction requiring defendants to “provide . . . proper treatment.” Compl. pg. 9 (doc. 1).
In March 2021, plaintiff informed Nurse Manager Landaverde that his right arm was getting progressively worse. Baskerville Decl. Attach. E (doc. 34-2); Edwards Decl. Ex. 7, at 2425 (doc. 34-2).
Plaintiff returned to physical therapy with Mr. Stephens on March 11, 2021, who noted that he was continuing to experience pain and cramping and had not been able to access resistance bands. Roberts Decl. Ex. 1, at 17-18, 32 (doc. 24-1). Upon examination, plaintiff's range of motion was restricted but within functional limits. Id. at 17. Mr. Stephens indicated “that as soon as possible [plaintiff should] be allowed to use resistance bands.” Id. at 1, 17.
On April 28, 2021, plaintiff was transferred to the Oregon State Penitentiary (“OSP”). Roberts Decl. Ex. 2 (doc. 24-2). Aside from his inability to use the prescribed resistance bands because they were never provided, plaintiff otherwise complied fully with all treatment recommendations while at SRCI. Fisher Decl. ¶ 10 (doc. 34-2).
Although OSP initially ordered that plaintiff return to Hope Orthopedics to be re-evaluated, noting that TLCC approval was not required, his provider and the TLCC subsequently determined such a consultation was “not medically indicated” and instead counseled that he should continue the HEP. Roberts Decl. Ex. 1, at 30-31, 34-35, 45 (doc. 24-1).
On July 28, 2021, plaintiff obtained counsel. On August 31, 2021, the TLCC concluded that surgery was unlikely to be helpful so long after the reinjury and denied plaintiff's request for an orthopedic consult. Id. at 34, 37. Plaintiff thereafter continued to complain of progressively worsening right bicep pain and reduced function. Id. at 27-29, 38-44, 46-49.
On March 9, 2022, defendants filed the present motion for summary judgment. Briefing was completed on May 10, 2022.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac.Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Defendants argue summary judgment is warranted for three reasons. First, with the exceptions of Drs. Gulick and Hemphill, defendants assert the individually named parties should be dismissed because “[c]laims brought under 42 U.S.C. § 1983 must be based on . . . personal involvement in depriving a constitutional right and cannot succeed under a respondeat superior theory.” Defs.' Mot. Summ. J. 1, 10-11 (doc. 23). Second, “[plaintiff's claim against Defendants in their official capacity is barred by the Eleventh Amendment.” Id. at 1, 11-12. Third, defendants contend plaintiff cannot demonstrate an Eighth Amendment violation based on his medical care and, even so, qualified immunity attaches. Id. at 12-19.
Plaintiff does not dispute Cain, Hawkins, or Bugher's lack of personal involvement, and “takes no position [regarding] the Eleventh Amendment.” Pl.'s Resp. to Mot. Summ. J. 16-19 (doc. 34). Thus, as an initial matter, defendants' motion should be granted as to these issues. Plaintiff otherwise opposes defendants' motion on the basis that the record shows Dr. DiGiulio, Dr. Koltes, Dr. Hemphill, Dr. Gulick, Nurse Practitioner Clements, Nurse Manager Landaverde, and Nurse Bradford were deliberately indifferent to plaintiff's serious medical needs in a manner that is not shielded by qualified immunity. Id. at 8-16.
I. Preliminary Matter
Before reaching the substantive merits of plaintiff's claim, the Court must resolve defendants' challenge to the pleadings. According to defendants, other than Drs. Gulick and Hemphill, plaintiff “fails to specifically allege that any of those Defendants personally participated.” Defs.' Mot. Summ. J. 11 (doc. 23). In contrast, plaintiff maintains that Nurse Manager Landaverde and Nurse Bradford's responses to his “Non-Emergency Health Care Request Forms” render them “affirmatively involv[ed].” Id. at 17. Plaintiff also asserts that Dr. DiGiulio, Dr. Koltes, and Nurse Practitioner Clements participated on the TLCC, which “repeatedly prevented [him] from accessing proper medical care.” Id. at 17-18.
Concerning the latter, the Court finds that plaintiff has done more than merely allege respondeat superior. Rather, the complaint names Dr. DiGiulio, Dr. Koltes, and Nurse Practitioner Clements as defendants and then discusses the purportedly wrongful actions of the TLCC in denying plaintiff care and delaying treatment. See, e.g., Compl. pg. 7 (doc. 1). As TLCC members who directly participated in medical decisions regarding plaintiff's right bicep reinjury, their alleged actions are sufficient to sustain an Eighth Amendment claim. SeeRomero v. Vargo, 2014 WL 3746527, *5-6 (D. Or. July 29, 2014) (denying the defendants' summary judgment motion as to TLCC members under virtually identical circumstances).
Defendants are correct, however, that the complaint does not individually address Nurse Manager Landaverde's or Nurse Bradford's actions. In fact, it is unclear from plaintiff's factual allegations how these parties caused or contributed to the violation of his constitutional rights. Although plaintiff's counsel attempts to cure the complaint's deficiencies by culling facts from the evidentiary record to support his claim, it is well-established that summary judgment “is not a procedural second chance to flesh out inadequate pleadings.” Wasco Prods., Inc., v. SouthwallTechs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation and internal quotations omitted); see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (where “the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court”). Therefore, defendants' motion should be granted as to Nurse Manager Landaverde and Nurse Bradford.
II. Summary Judgment Analysis
To succeed under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of deprived him or her of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. West v.Atkins, 487 U.S. 42, 48 (1988) (citations omitted). It is undisputed that the individually named defendants qualify as state actors for the purposes of § 1983.
Qualified immunity shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To determine whether a government actor is entitled to qualified immunity, the court evaluates, in no particular order, whether: (1) the alleged misconduct violated a right; and (2) that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Whether Plaintiff's Rights Were Violated
The Eighth Amendment requires prison officials to provide humane conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Accordingly, an adult in custody must establish, both objectively and subjectively, that conditions of confinement are cruel and unusual. Wilson v.Seiter, 501 U.S. 294, 297-98 (1991). To satisfy the objective component, the plaintiff must allege a deprivation that is in relation to a “sufficiently serious” medical need. Id. at 298. “[A] serious medical need is present whenever the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Lolli v. Cnty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (citations and internal quotations omitted).
To satisfy the subjective component, the plaintiff must demonstrate that the prison official was “deliberately indifferent” to a substantial risk of serious harm. Farmer, 511 U.S. at 834. Deliberate indifference in this context means that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he also must draw the inference.” Id. at 837. Only such indifference can offend “evolving standards of decency” in violation of the constitution. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Plaintiff alleges that defendants violated his Eighth Amendment rights by neglecting to: (1) provide post-surgical care consistent with the recommendations of his surgeon in July and August 2019; and (2) furnish medically acceptable treatment for his re-torn tendon beginning in September 2019. Compl. pgs. 6-8 (doc. 1).
i. Denial of Post-Surgical Care
Defendants' briefs are wholly silent as to plaintiff's first subset of allegations. See generally Defs.' Mot. Summ. J. (doc. 23); Defs.' Reply to Mot. Summ. J. (doc. 36). However, it is well-established under the Eighth Amendment that prison officials may not “ignore . . . the express orders of a prisoner's prior physician for reasons unrelated to the medical needs of the prisoner.” Jett v. Penner, 439 F.3d 1091, 1097 (9th Cir. 2006); see alsoEstelle, 429 U.S. at 105 (“intentionally interfering with the treatment once prescribed” can amount to deliberate indifference); Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (allegations that a prison official ignored the instructions of a prisoner's treating physician for non-medical reasons were sufficient to state a claim for deliberate indifference).
Here, it is undisputed that plaintiff's ruptured bicep tendon required corrective surgery shortly before his transfer to SRCI. It is also undisputed that, after the initial surgery, plaintiff was prescribed follow-up care including use of a sling, repeat evaluation, and physical therapy. Baskerville Decl. Attach. C (doc. 34-2). These modalities of treatment were never provided by ODOC. Fisher Decl. ¶ 2 (doc. 34-2); see generally Roberts Decl. (doc. 24). In particular, ODOC confiscated plaintiff's sling during the period of prescribed usage and Dr. Gulick, as plaintiff's assigned provider, failed to schedule the second post-operative appointment with Hope Orthopedics during early August 2019 or otherwise order another sling.
The record reflects further that these treatment recommendations were intended to reduce plaintiff's post-surgical pain and prevent additional strain or injury. Fisher Decl. ¶ 2 (doc. 34-2); Baskerville Decl. ¶¶ 3, 8 & Attach. C (doc. 34-2); Edwards Decl. Ex. 10, at 56 (doc. 34-2). ODOC presumably had access to plaintiff's medical records and plaintiff repeatedly informed Health Services of his need for post-surgical care. See, e.g., Roberts Decl. Ex. 1, at 15 (doc. 24-1); Edwards Decl. Ex. 7, at 1 (doc. 34-2); Fisher Decl. ¶ 2 (doc. 34-2). And, because defendants do not address this issue, there is no argument or evidence to suggest the reasons surrounding these denials were medical in nature or acceptable under the circumstances. See Edwards Decl. Ex. 11, at 23-24 (doc. 34-2) (Dr. Roberts testifying that ODOC's “general process would be to follow” treatment recommendations from an outside provider unless there “is something regarding the evaluation or treatment goal that may necessitate modification”). Defendants' motion should be denied as to this issue.
ii. Treatment for Re-Torn Bicep Tendon
It is undisputed that plaintiff re-injured his right bicep at the end of August 2019. Despite immediately reporting the injury, he was not seen by Dr. Gulick until October 2, 2019. Thereafter, he repeatedly sought treatment and complained of pain and cramping; however, he was offered little in the way of conservative care and was not able to obtain physical therapy until three months later. He continued to experience symptoms well past the weeks-long waiting time recommended by Mr. Stephens before consultation with an orthopedic surgeon. In fact, between being admitted to SRCI in August 2019 and his transfer to OSP in April 2021, plaintiff registered complaints of right arm pain on over 40 occasions.
The record is replete with evidence showing the delay in pursuing other modalities of treatment was harmful. Dr. Gulick's and Dr. Hemphill's own notes indicate that plaintiff's bicep was deformed and that he was in continual pain. See, e.g., Roberts Decl. Ex. 1, at 6-8, 11-12 (doc. 24-1); see also Fisher Decl. ¶ 8 (doc. 34-2) (“I have been in significant pain that interferes with my daily life functions since I re-tore my bicep tendon in August 2019 [and] have repeatedly informed Health Services at ODOD since then”). Likewise, plaintiff's communications, some of which were addressed directly to Dr. Gulick, show that: (1) physical therapy did not improve his condition; and (2) his pain and right-sided functioning were worsening. Edwards Decl. Exs. 6-7 (doc. 34-2).
The pain (and, potentially, ongoing deformity) were inferentially caused by the delay in meaningful treatment after it became clear, no more than six months after the re-tear, that conservative measures were ineffective. See Roberts Decl. ¶ 6 (doc. 24) (conservative measures should be assessed over a three-to-six month period for partial tears prior to considering surgery); see also Puziss Decl. ¶ 7 (doc. 35) (“[o]ngoing pain without improvement is not normal,” especially with treatment, and is a sign that “additional diagnostics” are required). And once plaintiff was finally able to receive a second opinion at OSP, his provider determined that too long of a period had elapsed since the initial reinjury such that surgery was unlikely to be helpful. Roberts Decl. Ex. 1, at 34, 37 (doc. 24-1); see also Puziss Decl. ¶ 8 (doc. 35) (“[i]t is possible that if a bicep tendon rupture is not surgically repaired within a certain period of time, the window of opportunity could close and the tear could reach a point where surgery cannot be performed in the future”).
The court is mindful that the timeliness of plaintiff's care may have been impacted by the ongoing pandemic. Yet the record reflects that regular treatment services had resumed at SRCI as of May 2020.
A rational jury could also find that Dr. Gulick was deliberately indifferent to plaintiff's reinjury in that he knew of and disregarded an excessive risk to plaintiff's health. As early as October 2, 2019, Dr. Gulick had diagnosed plaintiff with a repeat tear of his right bicep tendon. Roberts Decl. Ex. 1, at 12 (doc. 24-1). Dr. Gulick knew that neither he, nor any other member of the TLCC, were orthopedic specialists. Edwards Decl. Ex. 10, at 82-83 (doc. 34-2). Dr. Gulick additionally knew that he could consult someone with a relevant specialty at any point regarding plaintiff's care without approval from the TLCC. Id. at 56, 83; Edwards Decl. Ex. 11, at 25 (doc. 34-2).
Moreover, Dr. Gulick's deposition testimony creates the inference that he knowingly furnished care that was unsuitable under the circumstances and inconsistent with ODOC's own policies. Specifically, Dr. Gulick stated an inmate's reports of pain did not factor into treatmentand that “there's a whole different standard of care in corrections versus the outside . . . [my community patients] wouldn't even tolerate levels of care [provided to adults in custody].” Edwards Decl. Ex. 10, at 15, 18-19, 104 (doc. 34-2); but see Edwards Decl. Ex. 9, at 1 (doc. 34-2) (per ODOC policy, “health care services will be consistent with the standard for such services in the community”). Further, Dr. Gulick discounted Mr. Stephens' recommendation that plaintiff be referred to an orthopedic consultation for surgery because “[i]n corrections we don't feel that AICs need to maintain maximum physical strength [even though in] the community that's a valid consideration.” Edwards Decl. Ex. 10, at 103-05 (doc. 34-2). And the record clearly reflects that, while a conservative course of treatment may be appropriate for a few months post-injury, surgery may be required if improvement does not occur. See, e.g., Roberts Decl. ¶ 6 (doc. 24); Baskerville Decl. ¶ 6 (doc. 34-2); Puziss Decl. ¶¶ 5-9 (doc. 35).
Dr. Gulick's testimony suggests that he wholly disregarded plaintiff's pain complaints, despite the fact that he himself proffered the diagnosis of a partially torn bicep tendon (which was confirmed by other sources, including Mr. Stephens) and this is well-understood to be a condition that can cause pain. Compare Edwards Decl. Ex. 10, at 48, 52, 105 (doc. 34-2), with Roberts Decl. ¶ 6 (doc. 24); see also Edwards Decl. Ex. 11, at 12-13, 21-22 (doc. 34-2) (Dr. Roberts testifying an inmate's pain should be a part of the overall treatment analysis).
Indeed, plaintiff's original bicep tear was treated conservatively for two months before corrective surgery occurred. Edwards Decl. Ex. 3 (doc. 34-2).
That is, based on this evidence, a jury could reasonably infer Dr. Gulick's treatment was medically unacceptable and that he did not take plaintiff's condition seriously; despite the existence of an objectively verifiable injury and plaintiff's constant pain complaints over a nearly two-year period, neither Dr. Gulick nor any other ODOC Health Services staff performed an MRI or other soft-tissue testing to diagnose plaintiff's re-torn bicep or rule out another injury, or otherwise referred plaintiff to or consulted with an orthopedic specialist. See Baskerville Decl. ¶ 6 (doc. 34-2); Puziss Decl. ¶¶ 5-7, 9 (doc. 35) (referral to an orthopedic surgeon and imaging are consistent with the community standard of care, especially with constant pain and unsuccessful physical therapy); see also Fisher Decl. ¶¶ 5, 7 (doc. 34-2) (during their interactions, Dr. Gulick gave the impression he “did not care about identifying or treating the root cause of [plaintiff's] injury”).
Finally, this is not a case involving differing opinions regarding care options because Dr. Gulick recognized, as did all other evaluating providers, that plaintiff had re-torn his bicep and physical therapy was not effectively ameliorating the injury. In fact, the medical testimony uniformly intimates that, under these circumstances, medically acceptable treatment involves consultation with an orthopedist and/or diagnostic imaging. Roberts Decl. ¶ 6 (doc. 24); Baskerville Decl. ¶¶ 5-7 (doc. 34-2); Puziss Decl. ¶¶ 5, 7 (doc. 35). As such, defendants' reliance on Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996), and Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004), is unpersuasive.
In sum, disputed issues of material fact exists concerning when Dr. Gulick knew or should have known of plaintiff's re-torn tendon and the need to pursue other modalities of treatment, and whether the care provided by Dr. Gulick constituted deliberate indifference to plaintiff's serious medical need. SeeJett, 439 F.3d at 1097-99 (denying the defendants' summary judgment motion where the inmate continually “submi[tted] medical slips to obtain” treatment for a fractured thumb but his provider did not submit a “request for an orthopedic consult [until] approximately two-and-a-half months after his initial visit”); see also Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) (“[a] jury could infer deliberate indifference from the fact that [the doctor] knew the extent of [the inmate's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [the inmate's] situation”); Padilla v. Beard, 2017 WL 1253874, *16 (E.D. Cal. Jan. 27, 2017) (“a plaintiff may establish deliberate indifference to his serious medical needs by showing defendants adhered to a policy or practice of systematically denying medical care to inmates in his position”) (citing Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014)).
A closer question exists concerning Dr. Hemphill, who directly treated plaintiff and participated on the TLCC, in conjunction with Nurse Practitioner Clements and Drs. Koltes and DiGiulio. Given the record before the Court, coupled with Drs. Gulick and Roberts' descriptions of how the TLCC operates, the Court finds the record sufficient to create a triable issue of fact as to this issue. Edwards Decl. Ex. 10, at 94-96 (doc. 34-2); Edwards Decl. Ex. 11, at 7, 11-13 (doc. 34-2); see alsoRomero, 2014 WL 3746527 at *6-7 (disputed issue of material fact existed as to TLCC members' delay in authorizing surgery for the plaintiff where the record evinced they failed to timely and meaningfully meet and discuss his treatment); Jett, 439 F.3d at 1097-99 (prison administrators “are liable for deliberate indifference when they knowingly fail to respond to an inmate's requests for help”).
B. Whether the Right Was Clearly Established
A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). The dispositive inquiry is whether the state actor had “‘fair warning' that his conduct deprived his victim of a constitutional right.” Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”).
As addressed herein, Nurse Practitioner Clements, Dr. DiGiulio, Dr. Koltes, Dr. Hemphill, and Dr. Gulick directly participated in the underlying events, although each to varying extents. However, with the exception of Dr. Gulick, plaintiff does not provide sufficient facts or evidence to demonstrate that any defendant was “plainly incompetent or . . . knowingly violate[d] the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). Given the precise facts of this case, coupled with Dr. Gulick's primary role in plaintiff's care and significant control over plaintiff's treatment options, the Court finds that Drs. DiGiulio, Koltes, and Hemphill, and Nurse Practitioner Clements, are entitled to qualified immunity.
Dr. Roberts testified that the inmate's provider has an opportunity to “advocate for the patient” and recommend the best course of action when presenting a case to the TLCC, since “they are the ones that are seeing them every day and interacting with them.” Edwards Decl. Ex. 11, at 11-12 (doc. 34-2).
In contrast, disputed issues of material fact exist concerning whether Dr. Gulick is entitled to qualified immunity. Namely, as addressed above, there is evidence Dr. Gulick withheld or delayed treatment in contravention of ODOC policy and acceptable medical standards. Furthermore, a reasonable jury could conclude, based on Dr. Gulick's testimony, that he was purposefully indifferent to plaintiff's condition and suffering, and unwilling to help him in earnest. Long before the underlying events transpired here, “[i]t was clearly established that a physician's failure to provide treatment that would alleviate an inmate's significant pain could constitute deliberate indifference in violation of the Eighth Amendment.” Reed v. Barcklay, 634 Fed.Appx. 184, (9th Cir. 2015) (citing Jett, 439 F.3d at 1096); see also Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995) (rejecting attempt to more narrowly define an inmate's Eighth Amendment right to receive medical care because to do so would allow defendants to “define away all potential claims”).
RECOMMENDATION
For the reasons stated herein, defendants' Motion for Summary Judgment (doc. 23) should be denied as to plaintiff's Eighth Amendment personal capacity claim against Dr. Gulick and granted in all other respects.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.