Opinion
2:20-cv-00316-MK
09-26-2022
MARCUS KELO OROZCO, Plaintiff, v. DR. BENNETTE “BEN” NORTON, M.D.; JOHN MYRICK; BRIDGETT AMSBERRY; TROY BOWSER; SHANNON JOHNSTON, RN; DR. MARK PATTON, D.O., Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff, an inmate housed at the Two Rivers Correctional Institution (“TRCI”), filed this action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights through their actions surrounding the treatment of his umbilical hernia. See First Am. Compl., ECF No. 2 (“FAC”). Defendants now move for summary judgment, which Plaintiff opposes. Def.'s Mot. Summ. J., ECF No. 28 (“Def.'s Mot.”); Pl.'s Am. Resp. Opp'n Def.'s Mot. Summ. J., ECF No. 66 (“Pl.'s Opp'n”); see also Pl.'s Reply Am. Resp., ECF No. 67. For the reasons that follow, Defendants' motion for summary judgment should be GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff is an inmate in the custody of the Oregon Department of Corrections (“ODOC”) and was housed at TRCI during the time relevant to this lawsuit.
Because the motion before the Court is Defendants' motions for summary judgment, the Court construes the evidence in the light most favorable to Plaintiff and draws all reasonable inferences in his favor. JL Beverage Co., LLC v. Jim Bean Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016).
On April 3, 2014, Plaintiff began to feel pain and discomfort in his abdominal area and noticed a bump that began to protrude through his naval cavity. Orozco Decl. ¶ 5, ECF No. 66. Plaintiff could reduce the bump by laying flat on his back, however, doing so caused him severe pain and discomfort. Id. ¶ 6. As a result, Plaintiff became wary of people getting close to his bump and every day normal movements and activities caused him to suffer extreme pain and discomfort. Id. ¶ 7-8.
On May 1, 2014, Plaintiff attended an examination with Dr. Norton for an unrelated medical issue. Id. ¶ 10. During this examination, Plaintiff directed Dr. Norton's attention to the bump and informed Dr. Norton that he believed that he had a hernia injury. Id. ¶ 11. Dr. Norton attempted to reduce the hernia and Plaintiff told Dr. Norton that it hurt when he pressed on it. Id. ¶ 12. Dr. Norton told Plaintiff that he had an umbilical hernia. Id. ¶ 16.
Plaintiff asked Dr. Norton to surgically repair the umbilical hernia. Id. ¶ 19. Dr. Norton replied saying that the Therapeutic Level of Care Committee (“TLOC”) would not approve the surgery, hernia surgeries are elective and not mandatory, and Plaintiff would be observed instead. Id. Plaintiff responded that he had concerns the hernia could become life threatening. Id. ¶ 23. At this point, Dr. Norton became “threatening and got extremely angry and defensive” and stated that if Plaintiff's injury became life threatening, he would know due to the pain and he would be immediately rushed to the hospital. Id. ¶ 24-26.
Plaintiff, still concerned about the hernia becoming life threatening, asked Dr. Norton to put his statement in writing that his hernia does not need to be surgically repaired and that it would not become dangerous. Id. ¶ 31. Dr. Norton then threatened Plaintiff with being thrown in the Disciplinary Segregation Unit for attempting to extort him. Id. ¶ 33. Out of fear “of retaliation, retribution, and/or punishment by Dr. Norton,” he did not bring up the hernia injury again. Id. ¶ 38. Between May 2014 and December 2017, Plaintiff had more than fifty health services visits, but none were related to or involved discussion of the hernia or hernia related pain. Decl. Gulick ¶ 7, ECF No. 30; Decl. Orozco ¶ 38 n.1, ECF No. 66.
On October 3, 2017, Plaintiff heard rumors that a new doctor, Dr. Patton, was now the provider for his unit and he sent an ODOC Inmate Communication Form (“ICF”) to the TRCI medical department “gauging whether or not this information was accurate.” Orozco Decl. ¶ 48, ECF No. 66.
On November 14, 2018, Plaintiff sent another ODOC ICF, this time specifically addressed to Dr. Patton, discussing hip pain and discomfort. Id. ¶ 49. On January 20, 2018, Plaintiff sent an ODOC ICF to Dr. Patton about the umbilical hernia injury, indicating that the hernia had progressively worsened, caused him pain and discomfort, and expressed his concerns that it may strangulate. Id. ¶ 51.
On February 1, 2018, Plaintiff was seen by Dr. Patton for the first time regarding his hernia. Id. ¶ 55. During the examination, Dr. Patton found Plaintiff's hernia to be “poorly reducible” and submitted his findings to the TLOC that surgery was necessary. Id. ¶ 60-61. On February 6, 2018, TLOC approved Dr. Patton's request to refer Plaintiff to an outside surgical specialist, Dr. Jones. Id. ¶ 62.
On March 11, 2018, Plaintiff submitted another ICF to Dr. Patton in which he wrote: I am in a [g]reatd [d]eal of [p]ain and [d]iscomfort! . . . Would you please . . . look into my case and see why it's taking so long to see a specialist.” Id. ¶ 63. ODOC responded two days later “that the surgeon that was going to do the surgery was unable to do it . . . and that medical services was looking for another surgeon.” Decl. Gulick ¶ 12, ECF No. 30.
On April 9, 2018, Dr. Jones examined Plaintiff and concluded that Plaintiff had an “incarcerated hernia” and questioned why surgical intervention had not been explored sooner. Orozco Decl. ¶ 65-70, ECF No. 66. Dr. Jones stated, “it was dangerous to have left [Plaintiff's] hernia untreated for the span of some 51 months.” Id. ¶ 79. After the appointment, Plaintiff was prescribed Etodolac (Lodine), a nonsteroidal anti-inflammatory drug used to relieve joint pain, inflammation, swelling, and stiffness, through July 8, 2018. Gulick Decl. ¶ 20, ECF No. 30.
On April 25, 2018, Plaintiff filed two ODOC grievances alleging Dr. Norton violated his First and Eighth Amendment rights. Orozco Decl. ¶ 111-12, ECF No. 66.
Plaintiff's surgery was scheduled for May 2, 2018. Gulick Decl. ¶ 14-16, ECF No. 30. However, based on concerns from Dr. Jones regarding a chest x-ray, Plaintiff's surgery was canceled. Id. ¶ 17-18. On June 13, 2018, Plaintiff complained of pain in his testicles that he believed was related to his hernia injury, which Dr. Patton responded to on June 20, 2018, by stating “no reason for an umbilical hernia to cause testicular pain.” Orozco Decl. ¶ 82, ECF No. 66. On June 28, 2018, Plaintiff again reached out to Dr. Patton regarding pain in his testicles and Dr. Patton replied by saying “we can readdress this after your hernia repair” and scheduled an exam for Plaintiff on July 12. Id. ¶ 83-84. On July 11, 2018, Plaintiff again requested pain medications to which Dr. Patton prescribed Plaintiff “Non-Aspirin and/or Tylenol” during the July 12 exam. Id. ¶ 85-87. Plaintiff communicated on July 16 and 26 his concerns that the pain medications Dr. Patton prescribed were not working. Id. ¶ 88-90. ODOC responded to Plaintiffs concerns by stating “you have surgery scheduled in the future.” Id. ¶ 91.
On August 7, 2018, Plaintiff received his hernia repair surgery and was prescribed Oxycodone for 5 days following his surgery. Id. ¶ 94-95. Plaintiff was later prescribed Lodine to continue addressing his pain. Gulick Decl. ¶ 26, ECF No. 30.
On August 24, 2018, Plaintiff filed his third ODOC grievance alleging Dr. Patton violated his Eighth Amendment rights. Orozco Decl. ¶ 113, ECF No. 66. Plaintiff also filed a tort claim notice on September 21, 2018, alleging violations of his First, Eighth, and Fourteenth Amendment rights. Id. ¶ 114. On February 24, 2020, Plaintiff filed this lawsuit. See Compl., ECF No. 2.
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.
Pro se pleadings are “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This rule protects the rights of Pro se litigants to self-representation and meaningful access to the courts, . . . [and] is particularly important in civil rights cases.” Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir. 2012) (emphasis omitted) (citations and quotation marks omitted). The court “must consider as evidence in his opposition to summary judgment all of [a plaintiff's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [a plaintiff] attested under penalty of perjury that the contents of the motions of pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (citing McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987)).
Though Plaintiff is now represented by counsel, Plaintiff was Pro se when he originally filed this lawsuit. See Compl., ECF No. 5; First Notice of Appearance, ECF No. 48.
DISCUSSION
Plaintiff alleges that Defendants violated his Eighth and Fourteenth Amendment rights because they were deliberately indifferent to his serious medical needs by failing to adequately treat his umbilical hernia and accompanying pain. Plaintiff further alleges that Dr. Norton violated his First Amendment rights by threatening to retaliate against Plaintiff for requesting his medical opinion be put in writing. Plaintiff seeks compensatory and punitive damages.
There is also a state medical malpractice claim but Defendants fail to meaningfully address it. The Court declines to consider it this issue.
Defendants move for summary judgment on all of Plaintiff's claims, on grounds that they were brought outside of the statute of limitations and do not qualify for equitable estoppel nor as a continuing tort. Defendants also move for summary judgment on Plaintiff's Eighth Amendment claim, on grounds that the undisputed facts do not establish a serious medical need or deliberate indifference to his health. Finally, Defendants also move for summary judgment on Plaintiff's First and Fourteenth Amendment claims. The analysis will begin with whether the claims are untimely, qualify as a continuing tort, and whether equitable estoppel favors Plaintiff's position.
I. Timeliness of Claims, Continuing Tort and Equitable Estoppel
The Court must resolve one preliminary matter before reaching the substantive merits of Defendant's motion: whether Plaintiff's claim is barred by the statute of limitations. Federal courts apply the forum state's statute of limitations for personal injury actions except to the extent any such law is inconsistent with federal law for claims brought pursuant to 42 U.S.C. § 1983. Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014).
Under Oregon law, “an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of [the Oregon Tort Claims Act] shall be commenced within two years after the alleged loss or injury.” Or. Rev. Stat. (“ORS”) § 30.275(9).
Defendants assert that because Plaintiff's alleged injury took place in May 2014 and this lawsuit was not filed until February 24, 2020, this action should be dismissed as time barred because it falls outside the two year limitation window. Def's Mot. 4, ECF No. 28. Plaintiff argues that Defendants should be estopped from raising a statute of limitations defense because Dr. Norton's alleged threat prevented Plaintiff from filing this lawsuit. See Pl.'s Opp'n 15, ECF No. 59. Alternatively, Plaintiff contends the continuing tort doctrine tolled the limitations period until August 7, 2018” when Plaintiff received surgery. Id. at 11. Because the Court concludes that issues of fact exist as to Plaintiff's equitable estoppel argument, the Court need not reach the continuing tort doctrine issue.
Equitable estoppel is available “where the plaintiff can demonstrate that: (1) the defendant made specific promises, threats or inducements that prevented the plaintiff from filing suit; (2) those promises, threats or inducements actually caused the plaintiff to forbear filing the lawsuit; (3) the forbearance was reasonable; and (4) the plaintiff filed suit within a reasonable time after termination of the conduct causing such forbearance.” M.N.O. v. Magana, 03-cv-06393-TC, 2006 WL 559214, at *2 (D. Or. Mar. 6, 2006); Duncan v. Oregon, 05-cv-01747-KI, 2007 WL 789433, at *8 (D. Or. Mar. 14, 2007) (adopting M.N.O's reasoning).
Here, viewing the evidence and drawing all inferences in Plaintiff's favor, issues of fact exist as to whether Defendants should be equitably estopped from raising their statute of limitations defense. Plaintiff's declaration includes testimony that Dr. Norton “made [a] specific . . . threat” to place Plaintiff in the Disciplinary Segregation Unit for attempting to extort the doctor after Plaintiff asked that Dr. Norton put his medical opinion in writing. Orozco Decl. ¶ 31-33, ECF No. 66. Out of fear “of retaliation, retribution, and/or punishment by Dr. Norton,” Plaintiff did not bring up the hernia injury again. Id. ¶ 38.
When a doctor other than Dr. Norton became available to treat Plaintiff, Plaintiff felt safe in reporting his complaints of pain related to his hernia. Id. ¶ 50-52. Plaintiff filed his first and second ODOC grievances three months later on April 25, 2018. Id. ¶ 111-112. After Plaintiff's grievances were denied, Plaintiff filed a tort claim notice on September 21, 2018. Id. ¶ 114. In other words, the summary judgment record contains evidence that would allow a jury to find that Dr. Norton's alleged threat “actually caused” Plaintiff to forbear filing his lawsuit, that Plaintiff's forbearance was reasonable, and that Plaintiff filed suit within a reasonable time. Thus, factual issues exists as to whether equitable estoppel should apply.
II. First Amendment Claim
In the Ninth Circuit, a Plaintiff must show five elements to establish a First Amendment retaliation claim in the prison context: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Smith v. Powell, Case No. 2:19-cv-01725-SB, 2016 WL 11384325, at *13 (D. Or. January 25, 2016) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)). “[C]ourts should ‘afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.” Id. (citing Sandin v. Conner, 515 U.S. 472, 482 (1995)). While the alleged retaliatory action need not violate a constitutional right, the interest in a retaliation claim is “the right to be free of conditions that would not have been imposed but for the alleged retaliatory motive.” Id. (citing Dicey v. Hanks, No. 2:14-cv-2018JAM AC P, 2015 WL 4879627, at 2 (E.D. Cal. Aug. 14, 2015)).
In order to show retaliation, “a plaintiff must show that his protected activities were a ‘substantial' or ‘motivating' factor behind defendant's conduct.” Smith at 14 (citing Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009)). “[T]he mere threat of harm can be an adverse action, regardless of whether it is carried out because the threat itself can have a chilling effect.” Brodheim, 584 F.3d at 1270. Thus, the question for a district court to ask is whether “the record, taken in the light most favorable to the plaintiff, reveals statements by the defendant that a reasonable factfinder could . . . interpret as intimating that some form of punishment or adverse regulatory action would follow.” Id. (citing Okwedy v. Molinari, 333 F.3d 339, 343 (2d. Cir. 2003) (per curiam) (internal marks omitted)).
Plaintiff alleges that Dr. Norton threatened him with being thrown in the Disciplinary Segregation Unit for attempting to extort him after asking him to put his medical opinion in writing. Orozco Decl. ¶ 31-33, ECF No. 66 That threat of harm, in this case being thrown in the Disciplinary Segregation Unit, qualifies as an adverse action. Plaintiff thus satisfies the first requirement that a state actor took an adverse action against an inmate.
Plaintiff claims that this threat came in response to him asking Dr. Norton to put his medical opinion in writing. Id. The causal link between the threat and Plaintiff engaging in the protected conduct of asking a prison doctor to put his medical opinion in writing satisfies the second and third requirements. Next, Plaintiff alleges that this threat caused him to refrain from complaining about his hernia injury to Dr. Norton again out of fear “of retaliation, retribution, and/or punishment by Dr. Norton.” Id. ¶ 38. The record shows that Plaintiff did not discuss the hernia injury again, nor did he file any prison grievances against Dr. Norton, until after he was able to see a new doctor for the treatment of his injury. Gulick Decl. ¶ 7, ECF No. 30; Decl. Orozco ¶ 51, 111-112, ECF No. 66. On this record, a reasonable factfinder could find that Plaintiff's exercise of his First Amendment rights were chilled.
Finally, Defendants do not offer any evidence that threatening a prisoner with placement in the Disciplinary Segregation Unit for asking a prison doctor to put his medical opinion in writing reasonably advances a legitimate correctional goal. Therefore, Plaintiff satisfies the fifth element.
Viewing the record in the light most favorable to the Plaintiff, issues of material fact exist as to Plaintiff's First Amendment Retaliation Claim.
A. Eighth Amendment Claim
The Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to ensure that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). An Eighth Amendment claim requires a plaintiff to make a two-part showing: (1) an objective showing that the alleged deprivation was “sufficiently serious”; and (2) a subjective showing that the defendant exhibited deliberate indifference to the inmate's health or safety. Farmer, 511 U.S. at 834; Foster, 554 F.3d at 812.
A prison official acts with “deliberate indifference” in violation of the Eighth Amendment if the official “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citation omitted). This element is satisfied by showing: (1) a purposeful act or failure to respond to a prisoner's pain or possible medical need; and (2) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “The second requirement follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Moreover, to prevail on a claim involving choices between alternative courses of treatment, an inmate must show that the chosen course of treatment was “medically unacceptable under the circumstances” and was chosen “in conscious disregard of an excessive risk to the prisoner's health.” Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Mere difference of medical opinion does not establish deliberate indifference. Clement v. Gomez, 289 F.3d 898, 904 (9th Cir. 2002). Furthermore, a difference of opinion between the treating physician and prisoner does not support an Eighth Amendment claim. See Toguchi, 391 F.3d at 1058.
1. Liability of Dr. Norton
Defendants acknowledge that a hernia, depending on the nature of the condition, can be a serious medical condition if left untreated. Def. Mot. at 7, ECF No. 28. However, Defendants contend that Plaintiff's condition could not be serious because he “had at least fifty health service visits between May 2014 through December 2017, yet he made no complaints of pain related to [the] hernia, and he did not make a request for hernia treatment during that span of time.” Id. Plaintiff responds that he did not complain of pain related to the hernia nor make a request for hernia treatment during that time out of fear of Dr. Norton's threat of retaliation. Pl.'s Opp'n 25, ECF No. 59. Once able to see a new doctor, Plaintiff freely expressed that he was experiencing great pain in and around the abdomen due to his untreated umbilical hernia. Id. Accordingly, when the evidence is viewed in the light most favorable to Plaintiff, there is a genuine issue of fact around whether, and when, Plaintiff had a serious medical need for pain medication or hernia treatment.
Dr. Norton is also not entitled to summary judgment on the subjective prong of deliberate indifference. Plaintiff has not shown that Dr. Norton's recommended courts of treatment was medically unacceptable under the circumstances. During the May 2014 examination, Dr. Norton examined Plaintiff and his reports of pain and assessed “a small umbilical hernia that did not require surgery at the time; and that observation was appropriate.” Gulick Decl. ¶ 5, ECF No. 30; see also Orozco Decl. ¶ 19, ECF No. 66. On its own, this assessment does not amount to deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citation and internal quotation marks omitted); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A difference of opinion does not amount to a deliberate indifference to [the inmate's] serious medical needs.”). “In cases involving choices between alternative courses of treatment, [an inmate] must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Gordon v. Cnty. of Orange, 6 F.4th 961, 970 (9th Cir. 2021) (citation and quotation marks omitted).
This was not a mere disagreement with the doctor's assessment regarding the appropriate course of treatment. When considering the testimony surrounding this incident and as discussed earlier, Plaintiff's testimony raises a question about whether Dr. Norton chilled Plaintiff's speech with threats of discipline. Even if the described threats occurred after the assessment, the attitudes expressed through those threats could reasonably be considered as evidence of Dr. Norton's deliberate indifference to Plaintiff's serious medical needs.
Accordingly, Defendants' summary judgment motion is not appropriate against Plaintiff's deliberate indifference claim against Dr. Norton.
2. Liability of Dr. Patton
Plaintiff also alleges that Dr. Patton violated his Eighth Amendment rights by refusing to prescribe adequate pain medication, delaying Plaintiff's surgery for six months, and failing to note pain despite Plaintiff's clear communication of pain. See Pl.'s Opp'n 25, ECF No. 59. As noted, pain and an umbilical hernia can be a serious medical condition. However, Plaintiff cannot establish that Dr. Patton acted with deliberate indifference to his serious medical needs.
When Dr. Patton saw Plaintiff for the first time regarding his umbilical hernia, Dr. Patton found Plaintiff's hernia to be “poorly reducible” and submitted his findings to the TLOC that surgery was necessary. Decl. Orozco ¶ 60-61, ECF No. 66. TLOC quickly approved Dr. Patton's request to refer Plaintiff to an outside surgical specialist five days later. Id. ¶ 62. Plaintiff was unable to see the surgical specialist immediately However, this was due to the original surgeon being unable to perform the surgery and medical services attempting to find another surgeon. Gulick Decl. ¶ 12, ECF No. 30. Plaintiff's surgery was initially scheduled for May 2, 2018, but based on concerns from Dr. Jones regarding a chest x-ray, Plaintiff's surgery was rescheduled. Id. ¶ 17-18. Thereafter, Dr. Patton took steps to obtain a referral for Plaintiff and rescheduled the surgery, which occurred on August 7, 2018. Orozco Decl. ¶¶ 94-95. Plaintiff therefore cannot establish that Dr. Patton acted with deliberate indifference to his serious medical needs by delaying Plaintiff's surgery.
The record also demonstrates that Dr. Patton addressed Plaintiff's medical needs regarding pain management. Dr. Jones prescribed Etodolac (Lodine), a nonsteroidal antiinflammatory drug used to relieve joint pain, inflammation, swelling, and stiffness, from April 10, 2018, through July 8, 2018. Guilick Decl. ¶ 20. On June 13, 2018, Plaintiff began to complain of pain in his testicles that he believed was related to his hernia injury, which Dr. Patton responded to on June 20, 2018, by stating there was “no reason for an umbilical hernia to cause testicular pain.” Orozco Decl. ¶ 82, ECF No. 66. Approximately a week later, Plaintiff again reached out regarding the pain in his testicles; Dr. Patton replied explaining “we can readdress this after your hernia repair” and scheduled an exam for Plaintiff on July 12. Id. ¶ 8384. At this exam, Plaintiff was prescribed “Non-Aspirin and/or Tylenol”. Id. ¶ 85-87. Plaintiff, in written communications on July 16 and 26, complained that his pain medications were insufficient and ODOC responded by explaining that “you have surgery scheduled in the future.” Id. ¶ 91. Plaintiff receive his surgery on August 7, 2018 and was prescribed Oxycodone for 5 days following his surgery, as well as Lodine to continue addressing his pain after the Oxycodone prescription ran out. Id. ¶ 94-95; Decl. Gulick ¶ 26, ECF No. 30.
Plaintiff disagreed with Dr. Patton about both the source of his testicular pain and the medications Dr. Patton prescribed to address his pain. However, a difference of opinion between the treating physician and prisoner does not support an Eighth Amendment claim. See Toguchi, 391 F.3d at 1058.
Accordingly, summary judgment is appropriate on Plaintiff's deliberate indifference claim against Dr. Patton.
3. Liability of Other Defendants
Defendants Myrick, Amsberry, Bowser, and Johnston also move for summary judgment on grounds that they did not personally participate in the alleged deprivation of Plaintiff's Eighth Amendment rights.
As a general rule, state officials are not liable for damages in a suit under Section 1983 on a respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-694 (1978). To establish Section 1983 liability against an individual defendant, a plaintiff must plead personal participation by each defendant in the alleged constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution.”). Moreover, a “supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” See Jane Doe A v. Special SchoolDist., 901 F.2d 642, 645 (8th Cir. 1990) (individual defendants are subject to personal liability only if it can be proved that they received notice of a pattern of unconstitutional acts committed by subordinates; demonstrated deliberate indifference to or tactic authorization of the offensive acts; failed to take sufficient remedial action; and that such failure proximately caused injury.”).
To establish Section 1983 liability against an individual defendant, a plaintiff must plead personal participation by each defendant in the alleged constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
Plaintiff has failed to establish the personal participation of Defendants Myrick, Amsberry, Bowser, and Johnston's direct involvement in the deprivation of his Eighth Amendment rights. See Am. Compl. ¶ 30-35, ECF No. 5; See Pl.'s Opp'n 33-34, ECF No. 59. Nor does he raise genuine issues of fact that they knew of the violations and failed to act to prevent them. Id.
Accordingly, summary judgment is appropriate for Plaintiff's Eighth Amendment claim against Defendants Myrick, Amsberry, Bowser, and Johnston.
B. Fourteenth Amendment Claim
To state a claim for violation of due process under 42 U.S.C. § 1983, a plaintiff must invoke a federally protected liberty interest. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). An inmate's liberty interests are limited to freedom from restraints that impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 483-84 (1995). In determining whether a condition varied from a standard of ordinary prison life, a court must consider “(1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,' and thus comported with the prison's discretionary authority; (2) the duration of the condition, and degree of restraint imposed; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence.” Brown v. ODOC, 751 F.3d 983, 987 (9th Cir. 2014) (citing Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)).
Even liberally construing Plaintiff's filings given his status as a Pro se litigant, he has failed to raise an issue of fact that he was deprived of any potential due process right for being prevented from filing grievances through threat of discipline. This is so because Plaintiff raises this claim for the first time in his response to Defendants' motion for summary judgment. See Pl.'s Opp'n 29, ECF No. 49. Ordinarily, a party may not assert a new legal theory in an opposition to a motion for summary judgment because the “complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff's allegations.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000) (holding the district court did not err in refusing to entertain a new legal theory raised for the first time at the summary judgment stage). As such, the Court declines to address this claim. See Am. Compl. ¶ 23-35, ECF No. 5.
Accordingly, summary judgment should be granted as to Plaintiff's Fourteenth Amendment claim.
CONCLUSION
Defendants' Motion for Summary Judgment (ECF No. 28) should be GRANTED in part and DENIED in part. Defendants' motion should be GRANTED with respect to 1) Plaintiff's Eighth Amendment claim against all Defendants except Dr. Norton and 2) Plaintiff's Fourteenth Amendment claim against all Defendants. Defendants' motion should be DENIED with respect to Plaintiff's First Amendment and Eighth Amendment claims asserted against Dr. Norton.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) 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 this recommendation within which to file specific written objections with the court. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72, 6. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).