Opinion
Case No. 3:19-cv-1522-JR
06-16-2020
RYAN SCOTT DAVIS, Plaintiff, v. ANGELINA PLATAS; AMY SOTHERN; "JANE" MIRARCHI; "JANE DOE"; AND "JANE DOE", Defendants.
FINDINGS AND RECOMMENDATION :
Pro se plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging defendants failed to provide adequate medical treatment during his pretrial incarceration with Multnomah County. Plaintiff alleges defendants have been negligent and deliberately indifferent to his serious pain and have refused to provide necessary surgery in violation of his Eighth and Fourteenth Amendment rights. Defendants Amy Sothern and "Jane" Mirarchi move for summary judgment (ECF # 23). Defendant Angelina Plata also moves for summary judgment (ECF #26). For the reasons stated below the motions should be granted.
ALLEGATIONS
Plaintiff initiated this action on September 18, 2019. Plaintiff alleges that on July 20, 2016, the Portland police arrested and "punched him, kicked him, knocked him out and woke up to them jumping on his back and then dragging him on his face and while handcuffed his right arm was wrenched up so high it damaged his shoulder." Complaint (ECF #2) at p. 3.
Plaintiff alleges after he was booked into Multnomah County jail he was placed in the medical unit where he received medical attention for about six days when he told defendant Platas he was injured by police brutality. At that point, plaintiff alleges Platas became rude and ceased medical care. Id. at pp. 3-4. Plaintiff alleges he continually requested medical care and did not even get an x-ray until nine months later. Id. at p. 4. Defendant Jane Doe informed plaintiff that he was not injured and despite his informing Doe that an MRI would reveal the extent of his injury, defendant Doe refused to authorize an MRI. Id. at pp. 4-5.
Plaintiff alleges he continued to complain about pain to defendants for the next 15 months with no responding action by defendants. Plaintiff asserts it took two years to get an MRI and that "Doctor Jim" told him his shoulder was "completely fucked" and he needed surgery. Id. at p. 5.
Plaintiff alleges he met with defendant Sothern at OHSU on September 28, 2018, who consulted with defendant Mirarchi and determined he needed a joint replacement, but they could not perform the surgery until plaintiff was released from jail. Plaintiff alleges he was told "this is an expensive surgery, the jail's not giving you it, sorry." Id. at p. 6. Plaintiff further alleges defendant Sothern stated it would have been an easier procedure if it was addressed sooner. Plaintiff asserts that after OHSU determined his shoulder was beyond repair, the jail medical staff "tried to downplay, dismiss, or outright deny plaintiff's injury." Id.
Plaintiff alleges after his return from OHSU, defendant Jane Doe conducted a "little examination" and concluded he no longer need surgery and "his shoulder is now a 5 out of 5 rating in strength and range of motion." Id. at p. 8. Plaintiff asserts the medical staff at Multnomah County jail has been "blatantly negligent" and has "maliciously kept him in severe pain and discomfort for over three years causing permanent damage." Id.
Plaintiff alleges deliberate indifference to his serious medical needs in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiff seeks an injunction requiring the surgery and compensatory damages in the amount of $750,000 and punitive damages of $500,000 from each defendant.
DISCUSSION
Defendant Platas asserts she is entitled to summary judgment because plaintiff's claims against her are barred by the statute of limitations and because plaintiff has not produced any evidence that Platas was deliberately indifferent to plaintiff's medical condition. Defendants Sothern and Mirarchi assert the record lacks evidence demonstrating deliberate indifference or egregious and outrageous conduct that shocks the conscience. In addition, defendants Sothern and Mirarchi assert they are entitled to qualified immunity.
Plaintiff has not responded to the motions despite the Court providing plaintiff with a summary judgment advice notice and directing plaintiff to respond. If a party fails to address another party's assertions of fact stated in a motion for summary judgment, the Court may grant summary judgment if the supporting materials show that the movant is so entitled. Fed. R. Civ. P. 56(e).
A. Defendant Angelina Platas
The supporting materials submitted by defendant Platas demonstrate:
See Declaration of Angelina Platas in Support of Motion for Summary Judgment and attached exhibits (ECF #30).
Plaintiff was suspected of a series of armed robberies. He was taken into custody on or around July 20, 2016, after he was found hiding in a garden shed and forcibly removed. He was placed on the medical observation unit because he was pepper sprayed during his arrest and the jail medical staff wanted to monitor him for any potential respiratory issues. Dr. Platas evaluated plaintiff on July 21, 2016, and recalls plaintiff was wearing a sling for his shoulder pain. At that time, plaintiff reported his shoulder was improving. Plaintiff also noted he had been in a motor vehicle accident the month prior but had not sought medical attention as a result of that accident. Dr. Platas did a physical exam, including range of motion exercises, and planned to see plaintiff in one week. Plaintiff was then transferred to Inverness Jail and, as a result, Dr. Platas did not see him for the follow up visit she had scheduled. While at Inverness Jail, several months elapsed where plaintiff did not complain about shoulder pain in his medical request forms.
On August 31, 2017, plaintiff was transferred back to the Multnomah County Detention Center, and Dr. Platas had the opportunity to examine him again. At that time, plaintiff reported that his shoulder was doing much better. He further reported that he had tweaked his shoulder while working out with some younger detainees. Following Dr. Platas' second evaluation, plaintiff returned to Inverness Jail where he was then evaluated by Ole Ersson, MD, the physician at Inverness Jail. Dr. Ersson referred plaintiff to an orthopedist at OHSU. James McDonald an NP at OHSU then ordered an MRI. On September 28, 2018, Plaintiff consulted with defendant Amy Sothern, an orthopedic physician's assistant, at OHSU regarding the MRI results, which apparently showed severe arthritis in plaintiff's shoulder. The orthopedist advised plaintiff that his only repair option was a "total shoulder replacement." The orthopedist also noted that he was not willing to perform the surgery while plaintiff was in jail due to the increased risk of a poor outcome and lack of access to physical therapy.
1. Statute of Limitations
The contemporary consensus in the Ninth Circuit is "[t]he applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state's statute of limitations for personal injury actions." Carpinteria Valley Farms, Ltd. v. Cty. of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) (citing Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001)). In Oregon, the statute of limitations for personal injury actions is two years from the date the injury is discovered. Or. Rev. Stat. § 12.110(4) (applicable to injury arising from medical care). Therefore, the applicable statute of limitations in this case is two years.
Plaintiff's allegations establish he was aware of his injury on July 20, 2016 after his arrest and within six days of that date he was denied care. Plaintiff was also aware of Dr. Platas' alleged deliberate indifference at the time of Platas' exams.
The period of limitations in that statute commences from the earlier of two possible events: (1) the date of the plaintiff's actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed.Greene v. Legacy Emanuel Hosp. & Health Care Ctr., 335 Or. 115, 123, 60 P.3d 535, 539 (2002).
There is no genuine issue of material fact as to whether plaintiff was aware of the injury and the tortious conduct. Thus, plaintiff may not assert a claim against Dr. Platas based on the July 21, 2016 exam or the August 31, 2017 exam, as each exam occurred more than two years prior to the filing of the complaint. Accordingly, Dr. Platas is entitled to summary judgment on the claims against her because the claims are time-barred. The Court should grant Dr. Platas' motion for this reason.
2. Deliberate Indifference
The "deliberate indifference" standard applies to the claim that correction facility officials failed to address the medical needs of pretrial detainees. Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). To prevail, plaintiff would have to prove defendant acted with objectively deliberate indifference by showing
Although plaintiff asserts claims under both the Eighth and Fourteenth Amendments, because plaintiff is a pretrial detainee, his claim is appropriately brought under the Fourteenth Amendment only. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (Claims by pretrial detainees are analyzed under the Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment). To the extent plaintiff asserts a substantive due process claim, he has failed to present any facts to support such a claim with respect to defendants Sothern and Mirarchi's motion.
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The mere presence of a serious medical need does not establish deliberate indifference, nor does gross negligence constitute deliberate indifference. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Even if prison officials know of a substantial risk, they are free from liability if they respond reasonably to the risk. Farmer v. Brennan, 511 U.S. 825, 844 (1994). Officials are free from liability even if the harm is not averted. Id. Moreover, mere delay of treatment, without more, is insufficient to establish deliberate medical indifference. Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff has failed to produce any evidence of deliberate indifference by Dr. Platas. No reasonable trier of fact could conclude Dr. Platas was deliberately indifferent based on the record in this case. Accordingly, summary judgment in favor of Dr. Platas should be granted for this reason as well.
B. Defendants Amy Sothern and "Jane" Mirarchi
The supporting materials submitted by defendants Sothern and Mirarchi demonstrate:
See Declaration of Andrew Weiner and supporting exhibits (ECF #31).
On August 28, 2018, plaintiff was transported to OHSU where he was evaluated by Amy Sothern, a physician assistant employed by OHSU. An X-ray of plaintiff's shoulder was taken which was compared with imaging from a June 2018 MRI. The imaging revealed a finding that plaintiff had severe glenohumeral degenerative joint disease. Defendant Sothern, in consultation with defendant Mirarchi, concluded that plaintiff would likely benefit from shoulder arthroplasty (i.e., shoulder replacement surgery). However, they also concluded that shoulder arthroplasty—an elective surgical procedure—was not recommended while plaintiff was in a detention facility because it would greatly increase the risk of a poor outcome. Instead, plaintiff was scheduled for a steroid injection to assist with pain.
After the August 28, 2018 visit, neither defendant Sothern nor Mirarchi had any further contact with plaintiff, nor did they have any further involvement in his medical care.
1. Deliberate Indifference
As noted above, even gross negligence is insufficient to state a claim for deliberate indifference under the Fourteenth Amendment. There is no evidence that either defendant Sothern or Mirarchi acted with reckless disregard for plaintiff's health. The only medical opinion in the record indicates that performing the surgery would risk a poor outcome. The doctors instead treated plaintiff's pain with steroid injections. There are no other opinions in the record suggesting a better course of treatment and even if there were, a mere difference in medical opinion is insufficient to establish deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (plaintiff's showing of nothing more than "a difference of medical opinion" as to the need to pursue one course of treatment over another was insufficient, as a matter of law, to establish deliberate indifference).
2. Substantive Due Process
To the extent plaintiff asserts a substantive due process claim, such claim also fails.
After the August 28, 2018 visit, neither defendant Sothern nor Mirarchi had any further contact with plaintiff and no further involvement in his medical care. They concluded an elective shoulder arthroplasty would be beneficial but was not the best course of treatment under the existing conditions of his incarceration. Instead they opted to treat plaintiff's pain with a steroid injection.
Courts must employ caution and restraint when employing substantive due process protections to government action. See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 502 (1977). However, courts must not abandon substantive due process rights. Id. Accordingly, substantive due process rights are limited by careful respect for the teachings of history and recognition of the basic values that underlie our society. Id. at 503. Therefore, only official conduct that "shocks the conscience" is cognizable as a due process violation. Porter v. Osborn, 546 U.S. 1131, 1137 (9th Cir. 2008).
To establish a Fourteenth Amendment Substantive Due Process claim, a plaintiff must plead facts showing conduct that was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998).
Whether the alleged government action "shocks the conscience" is an issue of law for the court, not a question of fact for the jury. United States v. Wylie, 625 F2d 1371, 1378 (9th Cir. 1980). Generally, the Due Process Clause limits the government's power to act but does not guarantee certain minimal levels of safety and security. DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 195 (1989).
Since the focus of the Due Process Clause is prevention of the arbitrary and oppressive use of state power, it historically has been applied to "deliberate decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 331 (1986). The substantive due process guaranteed by the Fourteenth Amendment does not impose "liability whenever someone cloaked with state authority causes harm." County of Sacramento, 523 U.S. at 848; Paul v. Davis, 424 U.S. 693, 701 (1976) (the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the states"). "[O]nly the most egregious official misconduct can be said to be arbitrary in the constitutional sense." County of Sacramento, 523 U.S. at 846 (quoting Collins v. Harker Heights, 503 U.S. 115 (1992)).
There are no genuine issues of fact that the actions of either defendants Sothern or Mirarchi rose to such a level of egregious conduct. Thus, to the extent plaintiff asserts a substantive due process claim, defendants should be granted summary judgment in their favor.
The record also establishes that defendant Platas' conduct similarly fails to rise to such a level.
Because plaintiff has failed to establish a genuine issue of fact regarding any claims against defendants, the Court need not reach the issue of qualified immunity.
CONCLUSION
Defendants' motions for summary judgment (ECF #s 23 and 26) should be granted and defendants Platas, Sothern and Mirarchi should be dismissed from this action.
The deadline for serving defendants under Fed. R. Civ. P. 4(m) has passed. Accordingly, the Court should also dismiss the Doe defendants. A judgment should therefore enter.
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.
DATED this 16th of June, 2020.
/s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge