Opinion
Case No. 01-6241-KI.
February 27, 2004
Charles E. Corrigan, Ramis Crew Corrigan Bachrach LLP, Portland, Oegon, Attorney for Plaintiff.
Hardy Myers, Attorney General, Lynne Rennick, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Defendant.
OPINION
Plaintiff Richard Dickey brought this action against defendant John Vargo, M.D., Chief Medical Officer, Oregon State Penitentiary pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant acted with deliberate indifference to his serious medical needs, thereby violating his Eighth Amendment rights. Before the court is defendant's motion for summary judgment (#41), and plaintiff's cross-motion for summary judgment (#58). For the reasons that follow, I deny both parties' motions for summary judgment.
FACTS
Plaintiff was admitted to the custody of the Oregon Department of Corrections ("ODOC") on November 3, 1998, and he was transferred to the Oregon State Penitentiary ("OSP") on November 16, 1998. Plaintiff reported discomfort related to an incisional hernia in his abdomen on May 3, 2000. The next day, plaintiff was treated and prescribed pain medication for use as necessary. From May to August, plaintiff regularly visited health services for treatment of his hernia. Plaintiff complained that his abdominal hernia continued to protrude, causing tightness and pain. On August 3, 2000, plaintiff was prescribed an abdominal binder to control the protrusion and pain of his hernia. Plaintiff received the binder in September 2000.
Plaintiff was treated with medication and an abdominal binder over the next several months. On November 11, 2000, an OSP physician ordered a surgery consult on plaintiff's hernia. In a Progress Note dated November 15, 2000, a nurse noted that plaintiff's hernia was causing pain and becoming a "hard knot." The nurse planned to discuss the situation with a physician. Around November 20, 2000, plaintiff submitted an inmate communication form ("kyte") stating that he has not been seen by a doctor, and that a doctor should be aware of a hernia that gets hard and cannot be pushed back in. On December 7, 2000, plaintiff was referred to the Therapeutic Level of Care Committee ("TLC") for evaluation. The Progress Notes from that evaluation noted that plaintiff was experiencing considerable discomfort from his hernia. On December 28, 2000, TLC denied plaintiff surgical repair.
On January 4, 2001, plaintiff requested a new abdominal binder, as his old binder was worn out. Plaintiff was informed that he needed a physician's order since the old one had expired. On January 5, 2001, plaintiff submitted a grievance against the OSP Health Services regarding his medical provider's decision not to surgically repair his incisional hernia. On February 1, 2001, an OSP physician prescribed plaintiff with a new abdominal binder. On February 2, 2001, an OSP physician responded to plaintiff's grievance, stating that surgical repair of his incisional hernia was considered elective rather than medically necessary. On February 20, 2001, defendant rescinded plaintiff's prescription for a new abdominal binder, overriding the prescribing doctor's order. Defendant stated that a new binder was not medically necessary and that the old binder was still effective. Plaintiff continued to request and was denied a new abdominal binder.
On April 11, 2001, plaintiff submitted a kyte requesting to talk to a doctor because his hernia had become very painful, very hard, and difficult to push back in. On April 24, 2001, plaintiff submitted a grievance stating that his hernia was getting worse and that he was taken out of his cell so that a nurse could massage his hernia and push it back in. Defendant replied to the grievance on May 8, 2001, stating that both the surgery and the abdominal binder were elective and not required. Defendant has final authority over medical decisions at OSP.
Plaintiff continued to submit kytes and grievances about the worsening condition of his hernia. Plaintiff also continued to visit health services and have his condition monitored. OSP transferred plaintiff to the Oregon State Hospital ("OSH") for psychiatric assessment on October 11, 2001. On November 21, 2001, while at OSH, plaintiff's incisional hernia was surgically repaired. On March 27, 2002, OSH transferred plaintiff back to ODOC custody.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
Plaintiff alleges that defendant violated his Eighth Amendment rights by refusing to treat his serious medical needs. Defendant argues that there was no serious medical need, and that he appropriately responded to plaintiff's requests. Defendant also contends that this action should be dismissed because he is entitled to qualified immunity.
In order to determine if defendant is entitled to qualified immunity, the court must determine whether plaintiff's constitutional rights were violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, the court determines whether the facts, taken in the light most favorable to the injured party, show a constitutional violation. Id. Second, if facts exist that support a finding of a constitutional violation, the court must determine (1) if a constitutional right was clearly established, and if so, (2) whether a reasonable official would have believed his conduct to be unlawful. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002).
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prove that the response of prison officials to a prisoner's medical needs was constitutionally deficient, the prisoner must establish (1) a serious medical need and (2) deliberate indifference to that need by prison officials. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). A medical need is serious if the failure to treat the prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id. at 1059 (internal citations omitted). A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
The mere difference of opinion as to which medically acceptable course of treatment should be followed does not establish deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir 1989). Accordingly, deliberate indifference is not shown if the defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff alleges that defendant acted with deliberate indifference in two ways. First, plaintiff argues defendant acted with deliberate indifference by not timely providing plaintiff with an abdominal binder to control the pain from his hernia. Second, plaintiff argues defendant acted with deliberate indifference by not surgically repairing plaintiff's hernia. Defendant argues that both requests were elective and not medically necessary. Because the abdominal binder and surgical repair were elective, defendant argues that there were two medically acceptable treatments available.
Plaintiff provides compelling evidence that defendant committed a constitutional violation. Between May 2000 and October 2001, plaintiff complained frequently of abdominal pain, nausea, and a hardening of his hernia. As the hernia hardened, plaintiff experienced more pain, particularly when he urinated, got out of bed, walked around, ate, or drank. Often, plaintiff required aid from nurses to push his hernia back into his abdomen. Plaintiff's hernia grew to the size of a small orange, and it protruded from plaintiff's abdomen approximately 1-1.5 inches. Plaintiff filed numerous grievances and kytes seeking treatment for his incisional hernia. Ultimately, surgical repair revealed that plaintiff had three hernias, one of which was incarcerated. A hernia becomes incarcerated when the organ protruding through the defect in the abdominal wall becomes stuck and cannot be pushed back into the body.
Two OSP physicians attempted to treat plaintiff with an abdominal binder. Dr. Hoover, the physician who surgically repaired plaintiff's hernia, stated that it was appropriate for a physician to order a replacement binder. Defendant, however, overruled subordinate physicians and rescinded plaintiff's prescription for a new abdominal binder, labeling it elective. Dr. Hoover also testified that, if a patient in the general community with a record similar to plaintiff's desired surgery, the medical standard of the community requires surgery to be performed. In this case, defendant labeled surgical repair of plaintiff's hernia as elective.
Plaintiff submits evidence that he was in a great deal of pain. Defendant acknowledges that hernias can be very painful, but contends that the pain subsides when the protruding hernia is pushed back into the abdomen. However, the evidence shows that plaintiff's hernia protruded regularly, and that he frequently needed medical attention to reinsert the hernia back into his abdomen.
Moreover, plaintiff provides evidence that defendant has not changed his medical treatment of hernias, despite using a method having been found to violate prisoner's Eight Amendment rights.See Delker v. Maass, 843 F. Supp. 1390 (D. Or. 1994) (Panner, District Judge). In Delker, this court found that Dr. Vargo, the same defendant in this case, violated a prisoner's Eighth Amendment rights by not appropriately treating the prisoner's hernia. Judge Panner emphasized, as I recognize here, that the appropriate treatment of hernias needs to be decided on a case-by-case basis. However, Judge Panner found that the defendant's categorical policy of denying surgery to all routine hernias was improper under the Eighth Amendment. In this case, defendant testified that he was familiar with Judge Panner's ruling, but he admitted that he had not changed his approach to treating hernias.
I am aware that the Supreme Court has directed courts to resolve issues of qualified immunity early in the litigation process. See Saucier, 533 U.S. at 200-01. However, the Ninth Circuit has acknowledged that establishing qualified immunity may depend on the resolution of factual disputes. See Santos v. Gates, 287 F.3d 846, 855 (9th Cir. 2002) (declining to grant qualified immunity because whether the officers may be said to have made a reasonable mistake of fact or law may depend upon the jury's resolution of disputed facts and the inferences it draws therefrom) (internal citations omitted); See also Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003). Based on the evidence in the record, I find that genuine issues of material fact exist as to whether defendant acted with deliberate indifference. Specifically, questions of fact exist as to the defendant's knowledge of plaintiff's pain, and whether defendant's treatment of plaintiff was medically acceptable. At this point, I cannot conclude that defendant is entitled to qualified immunity.
Plaintiff has also moved for summary judgment, urging the court to rule as a matter of law that his Eighth Amendment rights were violated. The same factual disputes that preclude summary judgment on qualified immunity also preclude summary judgment on the merits of the case. Therefore, both parties' motions for summary judgment are denied.