Opinion
2:19-cv-01210-MK
09-07-2022
MICHAEL JAMES EVANS, Plaintiff, v. MICHELLE NELSON; MARLENA AGUIAR; DR. BENNETTE BEN NORTON, M.D.; DR. MARK PATTON, M.D.; DR. GARTH GULICK, M.D.; GUY HALL; DOUG ABBOTT; GENELLE MACKEY; GREG JONES; LINDA ANN GRUENWALD, FNP; JOSE OLVERA; WILLIAM MCMILLIAN; KEVIN HODGES; STEVE BOSTON; DR. JOHN DOE #1; DR. JOHN VARGO, D.O.; MR. ROBB NUTT, EAST SIDE PHARMACIST; SHANNON JOHNSTON, TRCI MEDICAL MANAGER; DOROTHY D. WETLAUFER, ASST. MEDICAL ADMIN TRCI; DR. STEVEN SHELTON, M.D., MEDICAL DIRECTOR OF ODOC; AMBER HELFER, PHARMACY TECHNICIAN, TRCI; BARBRA ZELLER, PHARMACY TECHNICIAN, TRCI; CARRIE BROSNAN, PHARMACY TECHNICIAN, TRCI; MARK NOOTH, SUPERINTENDENT, SRCI; JOHN MYRICK, SUPERINTENDENT, TRCI; TAYLOR BOWSER, SUPERINTENDENT, TRCI; JOE BUGHER, ASSISTANT DIRECTOR; MICHAEL F. GOWER, ASSISTANT DIRECTOR OF OPERATIONS ODOC; PHARMACY TECHNICIAN #1 SRCI; PHARMACY TECHNICIAN #2 SRCI; PHARMACY TECHNICIAN #3 SRCI; STEPHANIE MARTIN; C.O. PETER ALLEMAN; JERI TAYLOR, SUPERINTENDENT; TONY KORNEGAY; C.O. LINDA CARTER RET.; CAPT. LAINE IVERSON RET.; and LT. RICH YOUNG, Defendants
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael James Evans (“Plaintiff”) asserts fifteen causes of action under 42 U.S.C. § 1983 and Oregon state law against Defendants Nelson, Aguiar, Norton, Patton, Gulick, Hall, Abbott, Mackey, Jones, Gruenwald, Olvera, McMillian, Hodges, Boston, Dr. John Doe #1, Vargo, Nutt, Johnston, Wetlaufer, Shelton, Helfer, Zeller, Brosnan, Nooth, Myrick, Bowser, Bugher, Gower, Pharmacy Technician #1, Pharmacy Technician #2, Pharmacy Technician #3, Martin, Alleman, Taylor, Kornegay, Carter, Iverson, and Young:
Claim (1): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Vargo and Dr. John Doe #1;
Claim (2): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendant Gruenwald;
Claim (3): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gulick, Nutt, Pharmacy Technician #1, Pharmacy Technician #2, and Pharmacy Technician #3;
Claim (4): a First Amendment retaliation claim and Eighth Amendment cruel and unusual punishment claim against Defendants Alleman, Jones, Hall, Mackey, and Abbott;
Claim (5): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gruenwald, Helfer, Zeller, Brosnan, Nutt, Pharmacy Technician #1, Pharmacy Technician #2, and Pharmacy Technician #3;
Claim (6): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, and an Eighth Amendment deliberate indifference claim against Defendants Olvera, Hodges, McMillan, Boston, Jones, Hall, Mackey, and Abbott;
Claim (7): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gulick and Nutt;
Claim (8): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gruenwald and Norton;
Claim (9): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Norton, Patton, Nelson, and Aguiar;
Claim (10): a First Amendment claim against Defendant Martin;
Claim (11): an Eighth Amendment deliberate indifference claim against Defendants Nutt, Johnston, Wetlaufer, Shelton, Helfer, Zeller, Brosnan, Pharmacy Technician #1, Pharmacy Technician #2, Pharmacy Technician #3, Nooth, Myrick, Bowser, Bugher, Gower, Norton, Patton, Gulick, and Gruenwald;
Claim (12): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Norton, Nelson, and Aguiar;
Claim (13): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Young, Kornegay, Norton, and Gruenwald;
Claim (14): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Carter, Norton, and Gruenwald; and
Claim (15): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Iverson, Norton, and Gruenwald. Pl.'s Third Am. Compl., 21-71, ECF No. 56 (“TAC”).
Defendants Abbott, Aguiar, Alleman, Boston, Bowser, Brosnan, Bugher, Gower, Gruenwald, Gulick, Hall, Helfer, Hodges, Iverson, Johnston, Jones, Kornegay, Mackey, Martin, McMillian, Myrick, Nooth, Norton, Nutt, Olvera, Patton, Shelton, Taylor, Vargo, Wettlaufer, Young, and Zeller (collectively, “Defendants”) move for partial summary judgment on procedural grounds as to all of Plaintiff's claims except Plaintiff's tenth claim against Defendant Martin. Defs.' Mot. Summ. J. 1, 39, ECF No. 119 (“Defs.' Mot.”). For the reasons that follow, Defendants' motion should be GRANTED in part and DENIED in part.
Defendants Nelson and Carter are not represented by the Oregon Department of Justice, and have not appeared or waived service in this action. See Defs.' Mot. 1 n.1, ECF No. 119.
Defendants filed their motion for summary judgment in two parts: Part One, addressing procedural arguments (ECF No. 119); and Part Two, addressing substantive arguments (ECF No. 120). Plaintiff also filed a motion for summary judgment (ECF No. 108). In September 2021, this Court ordered that Plaintiff's motion for summary judgment (ECF No. 108) and Part Two of Defendants' motion for summary judgment (ECF No. 120) are held in abeyance until the Court issues a ruling on Part One of Defendants' motion. See Order, ECF No. 138. As such, this Findings and Recommendation addresses only Part One of Defendants' motion.
FACTS
Plaintiff is an adult in custody (“AIC”) of the Oregon Department of Corrections (“ODOC”) at Two Rivers Correctional Institution (“TRCI”). TAC ¶ 1, ECF No. 56.
I. Medical Treatment
A. Generally
Medical concerns among AICs at ODOC are handled similarly to those of nonincarcerated patients. Decl. of Dr. Warren Roberts ¶ 5, ECF No. 129 (“Roberts Decl.”). AICs are expected to bring health concerns to their provider's attention. Id. For non-urgent concerns, AICs can submit a request for an appointment with a medical provider. Id. For more urgent concerns, AICs can request attendance at a daily medical triage. Id. Emergencies are “handled on an emergency basis, as the situation warrants.” Id.
AICs are generally entitled to informed consent or refusal of a medical service. Id. at ¶ 6. AICs may change their consent or refusal, and their decision is honored absent emergencies or other unusual situations. Id.
Certain medications are given daily or on a regular basis to AICs during daily medication calls. Id. at ¶ 7. AICs report to the medication call line at the designated time and receive their medications directly from medical staff. Id. However, some medication can be kept by AICs in their cells or with their possession for self-administration. Id. AICs are expected to request renewals of such medications, just as non-incarcerated patients are expected to do. Id.
B. 2007 - 2012
1. First Claim as to Defendants Dr. John Doe and Vargo
Plaintiff was admitted to ODOC on December 13, 2007. Med. R. 1. All AICs are given an initial intake medical examination upon their arrival. Roberts Decl. ¶ 9, ECF No. 129. Plaintiff received his initial intake medical examination on December 18, 2007. Med. R. 5. In addition to receiving a physical examination, Plaintiff had tests done including a lipids panel test and an EKG ordered. Med. R. 4-5, 57.
All references to the medical record encompass pages 13 through 1396 of the Roberts Decl. (ECF No. 129).
On December 23, 2007, Plaintiff had an EKG, which was noted to be abnormal. Med. R. 135, 923.
On January 11, 2008, Plaintiff's lipid panel came back showing Plaintiff's lipid levels were “mostly well outside healthy limits.” Roberts Decl. ¶ 11; Med. R. 558. On January 16, 2008, Plaintiff's medical provider discussed the lipid panel results with Plaintiff. Med. R. 134, 558. At that time, Plaintiff admitted to a history of high lipids and the medical provider diagnosed Plaintiff with hyperlipidemia. Med. R. 134. The medical provider also performed a “Special Needs Review” (“SNR”) of Plaintiff's condition, and noted Plaintiff's test and examination results, medications, weight, activity level, diet, advice given, and plan. Med. R. 929. The advice and plan were for another lipids panel check, a low-fat diet, regular exercise, and a six-month prescription for Lopid. Id. Lopid was provided to Plaintiff as a self-administered medication. Med. R. 916. Plaintiff's medical records indicate that he did not receive any Lopid after June 2008. Roberts Decl. ¶ 13, ECF No. 129.
At some point during or before July 2008, Plaintiff conveyed to Defendant Vargo that Plaintiff had “chronic, severe hereditary hyperlipidemia.” TAC ¶ 94, ECF No. 56. Additionally, Plaintiff represents that he was first diagnosed with hyperlipidemia by his personal physician in 2003 and was treated with a statin called Mevacor/Lovastatin. Pl.'s Resp. 5-6, ECF No. 143. Plaintiff alleges that at no point did Defendant Vargo “order lipid panels to determine if the [L]opid was needed or even therapeutically effective[.]” TAC ¶ 95, ECF No. 56. Plaintiff also alleges the Lopid was “discontinued” after six months and “not replaced with any other [statin] while [Plaintiff was] at [Oregon State Prison].” Id. Plaintiff further alleges that “[a]t no time did [he] receive the medications needed to control his high blood pressure as he had been prescribed by his regular physician prior to his incarceration throughout the remainder of his stay at [Oregon State Prison.]” Id. at ¶ 96.
Plaintiff's lipid levels were tested again on August 6, 2008, and March 18, 2009. Med. R. 556, 559. The results of both panels indicated Plaintiff's lipid levels were outside the normal range. Id.
2. Second Claim as to Defendant Gruenwald
On March 26, 2009, Plaintiff met with Defendant Gruenwald because Plaintiff stopped taking his cholesterol-lowering medication and wanted an unrelated medication renewed. Med. R. 129. Defendant Gruenwald conducted another SNR regarding Plaintiff's hyperlipidemia and noted that Plaintiff's control of the condition was poor. Med. R. 929. At that time, Plaintiff advised Defendant Gruenwald that he “kn[ew] more about anatomy and physiology than you think” and that he “kn[ew] what high cholesterol does.” Med. R. 129. Defendant Gruenwald gave Plaintiff a one-year prescription for Zocor, Med. R. 52, which was also prescribed to Plaintiff as a self-administered medication, Med. R. 882.
In July 2009, Defendant Gruenwald ordered another lipid panel for Plaintiff, and the test results indicated that Plaintiff's lipid levels remained abnormal. Med. R. 554. In August 2009, Defendant Gruenwald met with Plaintiff to conduct another SNR regarding Plaintiff's hyperlipidemia. Med. R. 127, 929. Defendant Gruenwald noted that Plaintiff was “indifferent about cholesterol control-doesn't take responsibility for diet & exercise” and noted that Defendant Gruenwald “attempted to educate [Plaintiff] about food options [but Plaintiff] refuses to listen.” Med. R. 127. Defendant Gruenwald increased Plaintiff's dosage of Zocor and authorized it for a year. Med. R. 51.
In September 2009, Defendant Gruenwald ordered additional lipid tests for Plaintiff. Med. R. 552-53. Plaintiff was seen again about his hyperlipidemia at that time. Med. R. 127.
In October 2009, Plaintiff signed a form refusing an appointment with Defendant Gruenwald for evaluation of his blood pressure. Med. R. 172.
In September 2010, Defendant Gruenwald ordered additional lipid tests for Plaintiff. Med. R. 550. Plaintiff's results were still abnormal and those results were sent to Plaintiff. Id. Defendant Gruenwald ordered another SNR to be scheduled. Med. R. 48. Plaintiff alleges that Defendant Gruenwald “knew of, and ignored, [Plaintiff's need for . . . a pill with lipid panel follow up labs to see if the drug was even effective in controlling his triglycerides, LDL's and cholesterol.” TAC ¶ 103, ECF No. 56 (emphasis in original).
3. Third Claim as to Defendants Gulick, Nutt, Pharmacy Technician 1, Pharmacy Technician 2, and Pharmacy Technician 3
In October 2010, Plaintiff was transferred from TRCI to the Snake River Correctional Institution (“SRCI”). Med. R. 116. Plaintiff's transfer chart indicated he had hyperlipidemia. Med. R. 113, 116.
On December 7, 2010, Defendant Gulick performed another SNR for Plaintiff. Med. R. 112, 927. At that time, Defendant Gulick noted that Plaintiff had last taken Zocor a year prior in December 2009. Med. R. 927. Defendant Gulick noted that Plaintiff was refusing testing and wanted to be rechecked in six months. Id.
Plaintiff alleges Defendant Gulick's “lack of due diligence caused [Plaintiff's treatment regimen of Zocor to be completely cut off, and disrupted for the entirety of those 148 days” that Plaintiff was at SRCI. TAC ¶ 109, ECF No. 56. Plaintiff alleges Defendants Nutt, Pharmacy Technician 1, Pharmacy Technician 2, and Pharmacy Technician 3 “failed to issue plaintiff's prescription for Zocor from March 2010 ongoing[.]” Id.
4. Fifth Claim as to Defendants Gruenwald, Helfer, Zeller, Brosnan, Nutt, Pharmacy Technician 1, Pharmacy Technician 2, and Pharmacy Technician 3
In March 2011, Plaintiff was transferred back to TRCI. Med. R. 109.
In June 2011 and November 2011, Defendant Gruenwald ordered lipids testing for Plaintiff. Med. R. 544, 548-49. The results were shared and discussed with Plaintiff. Med. R. 108, 544, 548. All the tests showed abnormal results. Med. R. 548.
In July 2011, Defendant Gruenwald renewed Plaintiff's Zocor prescription at a lower level for another year. Med. R. 47.
Plaintiff alleges that Zocor was “blindly prescribed without any lipid panel[.]” TAC ¶ 129, ECF No. 56. Plaintiff also alleges that Defendant Gruenwald told him “the importance to take his [statin] medication” and that “[P]laintiff was aware but had not been receiving it[.]” Id. at ¶ 128. Plaintiff further alleges that the actions and inaction of Defendants “contributed to and exacerbated [P]laintiffs medical condition leading to a serious injury[.]” Id. at ¶ 130.
5. Seventh Claim as to Defendants Gulick and Nutt
In February 2012, Plaintiff was transferred to SRCI again, which brought him under the care of Defendant Gulick. Med. R. 102. His transfer report again noted that he had hyperlipidemia. Med R. 102-03.
On May 20, 2012, Plaintiff refused a fasting blood test. Med. R. 102.
On May 29, 2012, and June 18, 2012, Defendant Gulick performed SNRs on Plaintiff for his hyperlipidemia. Id. Defendant Gulick renewed Plaintiff's Zocor prescription. Med. R. 101.
On July 19, 2012, Defendant Gulick attempted to perform another SNR, but Plaintiff refused lab testing and the SNR. Med. R. 101, 927. This was the last time Defendant Gulick treated Plaintiff. Roberts Decl. ¶ 28, ECF No. 129.
C. 2013 - 2017
In December 2013, Plaintiff returned to TRCI. Med. R. 97.
Plaintiff's medical records indicate he did not seek care for his hyperlipidemia between July 2012 and July 2017. Roberts Decl. ¶ 30, ECF No. 129. Plaintiff periodically sought medical care for other health issues during this time. Id.
D. 2017 - 2018
On June 15, 2017, Plaintiff met with Defendant Norton regarding back pain. Med. R. 85. Plaintiff described the back pain as three to four months of lumbar pain with intermittent pain radiating into his right leg. Id. Defendant Norton diagnosed probable mechanical back pain and ordered labs, x-rays, and medications. Med. R. 84. Plaintiff was instructed to follow up in two to three weeks. Id.
On June 22, 2017, Defendant Norton reviewed Plaintiff's chart. Med. R. 83.
On July 6, 2017, Plaintiff returned to Defendant Norton for a follow-up visit regarding the labs and x-rays. Med. R. 37, 83. The labs included a lipids panel that Defendant Norton ordered. Med. R. 540. Defendant Norton noted Plaintiff's lipids were high and diagnosed dyslipidemia, Med. R. 83, “which in this context is the same as hyperlipidemia[,]” Roberts Decl. ¶ 36, ECF No. 129. Defendant Norton prescribed Lipitor for Plaintiff and ordered a follow-up in six to eight weeks. Med. R. 83, 677.
On August 24, 2017, Plaintiff met with Defendant Norton about “panic attacks.” Med. R. 36. Defendant Norton referred Plaintiff to Behavioral Health Services (“BHS”) for follow-up and ordered a routine EKG. Id.
On August 29, 2017, Plaintiff underwent an EKG and the results were described as abnormal. Med. R. 922. However, Defendant Norton noted the test showed no acute changes since Plaintiff's December 2007 EKG. Id. On August 28, 2017, Defendant Norton ordered another lipids panel. Med. R. 538. Plaintiff's medical records indicate this was Defendant Norton's last interaction with Plaintiff. Roberts Decl. ¶ 39, ECF No. 129.
In October 2017, Plaintiff reported chest pain with exertion to his new provider, Defendant Patton. Med. R. 81. Throughout the remainder of 2017 and most of 2018, Defendant Patton continued treating Plaintiff for his condition, including prescribing medications and tests, as well as getting approval for an outside stress test, nuclear stress test, and cardiology consult. Roberts Decl. ¶¶ 41-54, ECF No. 129.
On December 8, 2018, Plaintiff had heart surgery performed consisting of coronary artery bypass grafting, showing diffuse coronary atherosclerosis. Med. R. 345-47.
II. Housing Changes
Between October 2010 and March 2014, Plaintiff experienced housing changes that Plaintiff alleges constituted adverse conduct. Claim 4 concerns events that occurred between October 2010 and March 2011; Claim 6 concerns events that occurred between January 2012 and December 2013; Claim 13 concerns events that occurred between December 2013 and January 2014; Claim 14 concerns events that occurred in January 2013; and Claim 15 concerns events that occurred between February 2014 and March 2014.
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 move for partial summary judgment as to all of Plaintiff's claims on procedural grounds except for Plaintiff's tenth claim. Defs.' Mot. 1, 39, ECF No. 119. For the reasons that follow, Defendants' motion for partial summary judgment on procedural grounds should be GRANTED in part and DENIED in part.
I. Section 1983 Claims
Defendants assert summary judgment is appropriate as to Plaintiff's § 1983 claims because: (1) the claims are barred by the two-year statute of limitations for § 1983 claims; (2) the claims are barred by Plaintiff's failure to exhaust his administrative remedies as required under the Prison Litigation Reform Act (“PLRA”); and (3) Claims 4 and 6 are barred by issue and claim preclusion. Defs.' Mot. 2, ECF No. 119.
A. Statute of Limitations
Defendants argue Plaintiff's § 1983 claims are barred by the two-year statute of limitations because Plaintiff's claims accrued long before August 5, 2017. Defs.' Mot. 17-18, ECF No. 119.
1. Length and Accrual
There is no specified statute of limitations for an action under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 266 (1985); Pouncilv. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). Therefore “federal courts look to the law of the state in which the cause of action arose and apply the state law of limitations governing [the] analogous cause of action.” Pouncil, 704 F.3d at 573. Claims brought under § 1983 are characterized as personal injury actions. Wilson, 471 U.S. At 276. Oregon has a two-year statute of limitations for personal injury torts. ORS 12.110(1).
“The Supreme Court has construed claims brought under Section 1983 as tort claims for personal injury.” Pony v.County of L.A., 433 F.3d 1138, 1143 (9th Cir. 2006), cert. denied sub nom. Mitchell v. Los Angeles County, 547 U.S. 1193 (2006) (citing City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999)). The Supreme Court noted that although “the § 1983 remedy encompasses a broad range of potential tort analogies, from injuries to property to infringements of individual liberty[,] . . . Congress unquestionably would have considered the remedies established in the Civil Rights Act to be more analogous to tort claims for personal injury than, for example, to claims for damages to property or breach of contract.” Wilson, 471 U.S. at 277.
While state law determines the length of a statute of limitations period, federal law determines when the statute of limitations begins to run for a § 1983 claim. Pouncil, 704 F.3d at 573. Under federal law, the statute of limitations for a § 1983 claim begins to run on the date on which the plaintiff's claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007); Pouncil, 704 F.3d at 573. “[A]ccrual occurs when the plaintiff has a complete and present cause of action and may file a suit to obtain relief.” Pouncil, 704 F.3d at 573-74 (citations omitted). In other words, a cause of action for a § 1983 claim accrues “when the plaintiff knows or has reason to know of the injury that is the basis of the action.” Id. at 574; see also Bird v. Department of HumanServs., 935 F.3d 738, 746 (9th Cir. 2019) (“Under federal law, the ‘discovery rule' typically governs the accrual of § 1983 claims so that ‘a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.'”) (citation omitted).
Here, Plaintiff's lawsuit was filed on August 5, 2019. As such, Plaintiff's claims must have accrued on or after August 5, 2017.
As explained in more detail below, some of Plaintiff's claims relating to his surgery are not at issue for the purpose of the statute of limitations.
The next question is whether those claims did, in fact, accrue on or after August 5, 2017. A cause of action accrues when a plaintiff “knows or has reason to know of the injury that is the basis of the action.” Pouncil, 704 F.3d at 574. “Under the traditional rule of accrual . . . the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (citation omitted; ellipses in original).
a. Medical Treatment
Here, Plaintiff knew he had hyperlipidemia prior to his admission to ODOC. See, e.g., Pl.'s Resp. 5-6, ECF No. 143 (Plaintiff knew he was diagnosed with hyperlipidemia by his personal physician in 2003 and was treated with a statin called Mevacor/Lovastatin); Med. R. 134 (admitting to a history of high lipids and a previous diagnosis of hyperlipidemia in January 2008). Plaintiff knew about his ongoing high lipid levels, including from lab tests, see, e.g., Med. R. 558 (January 2008), 554 (July 2009), 552-53 (September 2009), 550 (September 2010); 548 (June 2011 and November 2011), and from medical appointments, see, e.g., Med. R. 134, 558 (January 2008); 929 (March 2009); 127, 929 (August 2009); 127 (September 2009), 112, 927 (December 2010); 108, 544, 548 (June and November 2011). Plaintiff should have known that he needed to take medication to manage his hyperlipidemia. See, e.g., Med. R. 929 (prescribing a six-month supply of self-administered Lopid in January 2008); 52 (prescribing a one-year supply of self-administered Zocor in March 2009); 51 (prescribing one-year supply and increasing dosage of self-administered Zocor in August 2009); 47 (renewing Zocor prescription at a lower level for another year in July 2011); 102 (renewing Zocor prescription in May 2012). Plaintiff's medical providers noted Plaintiff did not consistently take his medications. See, e.g., Med. R. 927. Between July 2012 and July 2017, Plaintiff's medical records indicate he did not seek care for his hyperlipidemia. Roberts Decl. ¶ 30, ECF No. 129.
Plaintiff alleges the following in his TAC relating to his medical treatment:
(1) In his First Claim based on events occurring between December 2007 and March 2009, Plaintiff alleges that “[a]t no time did [he] receive the medications needed to control his high blood pressure as he had been prescribed by his regular physician prior to his incarceration throughout the remainder of his stay at [ODOC.]” TAC ¶ 95, ECF No. 56.
(2) In his Second Claim based on events occurring between March 2009 and September 2010, Plaintiff alleges that Defendant Gruenwald “knew of, and ignored, [Plaintiff's need for . . . a pill with lipid panel follow up labs to see if the drug was even effective
in controlling his triglycerides, LDL's and cholesterol.” Id. at ¶ 103 (emphasis in original).
(3) In his Third Claim based on events occurring between October and December 2010, Plaintiff alleges Defendants did not issue Plaintiff the prescription he needed for his condition. Id. at ¶ 109.
(4) In his Fifth Claim based on events occurring between March and July 2011, Plaintiff alleges that Defendants prescribed him medication that was “blindly prescribed without any lipid panel[.]” Id. at ¶ 129.
(5) In his Seventh Claim based on events occurring between February and July 2012, Plaintiff alleges that Defendants “failed to properly treat [Plaintiff's condition] to get it under control with a Statin drug appropriate for the condition.” Id. at ¶ 153.
(6) In his Eighth Claim based on events occurring between December 2013 and February 2018, Plaintiff alleges Defendants failed to adequately treat Plaintiff's condition that resulted in a coronary artery bypass graft surgery. Id. at ¶ 171.
(7) In his Ninth Claim based on events occurring between August 2017 and February 2018, Plaintiff alleges Defendants acted with deliberate indifference toward his medical and mental health needs by “failing to promptly remove him from the work assignment that was exacerbating his condition[.]” Id. at ¶ 175.
(8) In his Eleventh Claim, Plaintiff alleges Defendants acted with deliberate indifference toward his medical needs by failing to properly ensure Plaintiff received his prescribed medications. Id. at ¶ 197.
(9) In his Twelfth Claim based on events occurring between August 2017 and February 2018, Plaintiff alleges Defendants acted with deliberate indifference toward his
medical and mental health needs by failing “to perform or order sufficient diagnostic tests.” Id. at ¶ 202.
(10) In his Thirteenth Claim based on events occurring between December 2014 and March 2014, Plaintiff alleges Defendants' deliberate indifference toward “Plaintiff's need of outdoor exercise created an unreasonable risk of serious damage to Plaintiff's future health.” Id. at ¶ 216.
(11) In his Fourteenth Claim based on events occurring in January 2013, Plaintiff alleges Defendants failed to prescribe the medications Plaintiff needed for his condition. Id. at ¶ 226.
(12) In his Fifteenth Claim based on events occurring between February and March 2014, Plaintiff alleges Defendants failed to adequately treat Plaintiff's condition. Id. at ¶ 233.
Given the evidence presented, Plaintiff should have known about his injury at the time Defendants allegedly failed to provide adequate medical treatment. As such, Plaintiff's § 1983 claims relating to the medical treatment of his hyperlipidemia began accruing at the time of the medical treatments at issue. See Wallace, 549 U.S. at 391 (“The cause of action accrues even though the full extent of the injury is not then known or predictable.”). Plaintiff's § 1983 claims relating to his medical treatment (Claims 1, 2, 3, 5, 7, 8, 9, 11, 12, 13, 14, and 15) are therefore barred by the two-year statute of limitations to the extent the events at issue took place before August 5, 2017.
b. Housing Changes
Additionally, Plaintiff includes the following dates in his TAC relating to his housing changes:
(1) The Fourth Claim concerns events occurring between 2010 and 2011.
(2) The Sixth Claim concerns events occurring between 2012 and 2013.
(3) The Thirteenth Claim concerns events occurring between 2013 and 2014.
(4) The Fourteenth Claim concerns events occurring in 2013.
(5) The Fifteenth Claim concerns events occurring in 2014.
With respect to Plaintiff's § 1983 claims based on his housing changes, Plaintiff should have known about his injury at the time the discipline took place. See Pouncil, 704 F.3d at 574. Plaintiff's § 1983 claims relating to his housing changes (Claim 4, 6, 13, 14, 15) are therefore also barred by the two-year statute of limitations because all events at issue took place before August 5, 2017.
2. Continuing Violations Doctrine
Plaintiff “seeks to be relieved of the bar of the statute of limitations by invoking the rule applicable to continuous or repeated torts.” Pl.'s Mot. Summ. J. 72, ECF No. 108. Defendants argue the continuing violation doctrine does not apply to Plaintiff's § 1983 claims. Defs.' Mot. 21, ECF No. 119.
“The continuing violations doctrine functions as an exception to the discovery rule of accrual ‘allowing a plaintiff to seek relief for events outside of the limitations period.'” Bird, 935 at 746 (citation omitted); see also Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (“The continuing violation theory applies to § 1983 actions.”). The “mere continuing impact from past violations is not actionable.” Knox, 260 F.3d at 1013 (emphasis and citation omitted). Historically, the Ninth Circuit recognized two applications of the continuing violations doctrine: (1) to “a series of related acts, one or more of which falls within the limitations period” (known as the serial acts branch), and (2) to “the maintenance of a discriminatory system both before and during [the limitations] period” (known as the systematic branch). Bird, 935 F.3d at 746 (quoting Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997)) (bracketing in original).
However, the Supreme Court limited the continuing violation doctrine in National R.R.Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court held that “‘discrete . . . acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges' because ‘[e]ach discrete . . . act starts a new clock for filing charges alleging that act.'” Bird, 935 F.3d at 747 (citing Morgan, 536 U.S. at 113); see also Carpinteria Valley Farms, Ltd.v. County of Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003) (“Although Morgan was a Title VII case . . . we have applied Morgan to bar § 1983 claims predicated on discrete time-barred acts, not-withstanding that those acts are related to timely-filed claims.”). In 2019, the Ninth Circuit reasoned that “little remains of the continuing violations doctrine” because:
Except for a limited exception for hostile work environment claims-not at issue here-the serial acts branch is virtually nonexistent. Moreover, while we have left room for the systematic branch to apply to class-wide pattern-or-practice claims, . . . we have consistently refused to apply the systematic branch to rescue individualized claims that are otherwise time-barred.Bird, 935 F.3d at 748.
Here, neither narrow exception applies. As such, the continuing violations doctrine is inapplicable, and the discovery rule of accrual applies.
3. Conclusion
The following § 1983 claims are barred by the two-year statute of limitations: Claims 1, 2, 3, 4, 5, 6, 7, 13, 14, and 15.
In Claim 8, Plaintiff makes no allegations involving Defendant Gruenwald based on events occurring on or after August 5, 2017. Claim 8 is barred as to Defendant Gruenwald only. Claim 8 survives as to allegations on or after August 5, 2017, involving Defendant Norton.
In Claim 11, Plaintiff makes no allegations based on events occurring on or after August 5, 2017, as to Defendants Gulick, Gruenwald, Nutt, Johnson, Wettlaufer, Shelton, Helfer, Zeller, Brosnan, Nooth, Myrick, Bowser, and Bugher. Claim 11 is barred as to these Defendants. However, Claim 11 survives as to allegations based on events occurring on or after August 5, 2017, involving Defendants Norton and Patton.
As such, Defendants' motion should be granted as to all § 1983 claims contained in: Claims 1 through 7; Claim 8 as to Defendant Gruenwald; Claim 11 as to Defendants Gulick, Gruenwald, Nutt, Johnson, Wettlaufer, Shelton, Helfer, Zeller, Brosnan, Nooth, Myrick, Bowser, and Bugher; and Claims 13 through 15. The only surviving claims are those based on events occurring on or after August 5, 2017, which consist of: Claim 8 as to Defendant Norton; Claim 9; Claim 11 as to Defendants Norton and Patton; and Claim 12.
As mentioned, Defendants do not challenge Plaintiff's Tenth Claim on procedural grounds. See Defs.' Mot. 3839, ECF No. 119.
B. PLRA
Defendants assert Plaintiff has failed to exhaust his administrative remedies as required by the PLRA. Defs.' Mot. 36, ECF No. 119. Plaintiff argues he has exhausted all administrative remedies. Pl.'s Resp. 94, ECF No. 143; see also TAC ¶ 44, ECF No. 56. Specifically, Plaintiff argues Defendants “waived their defense when they allowed Plaintiff to file and fully exhaust his 2018 and 2019 grievances.” Pl.'s Resp. 101-02, ECF No. 143.
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Congress enacted the PLRA “in the wake of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA strengthened the exhaustion requirement so that “[e]xhaustion is no longer left to the discretion of the district court, but is mandatory.” Id. at 85 (citation omitted). “Prisoners must now exhaust all ‘available' remedies . . . even where the relief sought-monetary damages-cannot be granted by the administrative process.” Id. The exhaustion requirement “applies to all inmate suits about prison life” that do not involve the duration of a prisoner's sentence. Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)).
The PLRA's exhaustion requirement mandates “proper” exhaustion of administrative remedies. Woodford, 548 U.S. at 93. Proper exhaustion means that “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Id. at 88. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.'” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original). To be available, a remedy must be available “as a practical matter; it must be capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citation and internal quotation marks omitted).
A motion for summary judgment is the proper means to raise an AIC's failure to exhaust administrative remedies. Albino, 747 F.3d at 1166. “If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id.
Under the applicable ODOC grievance process, an AIC may grieve: (1) the misapplication or lack of any administrative directive or operational procedure; (2) any unprofessional behavior or action directed toward the AIC by ODOC staff; and (3) any oversight or error affecting the AIC. Decl. of Arnell Eynon, Ex. 5 at 4, ECF No. 121 (“Eynon Decl.”). Until October 18, 2019, the time limit for filing a grievance was within 30 days of the grieved issue. Id.
In 2018 and 2019, Plaintiff filed four grievances that he contends exhausted his administrative remedies. TAC ¶ 44, ECF No. 56; see also Eynon Decl., Ex. 1-4, ECF No. 121. Plaintiff's January 2018 grievance form alleged that Defendant Nelson was deliberately indifferent to Plaintiff's medical needs, and requested that Plaintiff be removed from his work schedule so that he may receive medication to alleviate his panic attacks and pain from physical exertion. Eynon Decl., Ex. 1 at 11, ECF No. 121. Plaintiff's March 2018 grievance form alleged that Plaintiff had “no chronic heart disease prior to [his] being incarcerated” and that he developed chronic heart disease by August 2017 while under Defendants' care. Eynon Decl., Ex. 2 at 7, ECF No. 121. Plaintiff's December 2018 grievance form alleged that Defendants were aware of Plaintiff's condition but failed to prescribe appropriate medications between 2008 and 2017. Eynon Decl., Ex. 3 at 9, ECF No. 121. Plaintiff's May 2019 grievance form alleged that Plaintiff “was deprived for periods of months and years of intermittent] [disbursement] if at all [where] no medication was dispensed from May 2012 to February 2017.” Eynon Decl., Ex. 4 at 8, ECF No. 121.
Prior to 2018, Plaintiff did not submit grievances regarding the medical care of his hyperlipidemia or heart condition. Defendants argue that Plaintiff has therefore not exhausted his administrative remedies even though ODOC accepted and processed Plaintiff's 2018 and 2019 grievances. Defs.' Mot. 37, ECF No. 119. Citing Reyes, Plaintiff argues Defendants waived their exhaustion defense when they “opt[ed] not to enforce a procedural rule but instead decide[d] an inmate's grievance on the merits.” Pl.'s Resp. 99, ECF No. 143 (citing Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016)).
In Reyes, the Ninth Circuit considered whether an inmate who obtained a decision at all levels of review of the California prison grievance system nevertheless failed to exhaust his administrative remedies because his grievance did not name all staff members involved in his case. Reyes, 810 F.3d at 657. The Ninth Circuit reasoned:
When prison officials opt not to enforce a procedural rule but instead decide an inmate's grievance on the merits, the purposes of the PLRA exhaustion requirement have been fully served: prison officials have had a fair opportunity to correct any claimed deprivation and an administrative record supporting the prison's decision has been developed. Dismissing the inmate's claim for failure to exhaust under these circumstances does not advance the statutory goal of avoiding unnecessary interference in prison administration. Rather, it prevents the courts from considering a claim that has already been fully vetted within the prison system.Id. at 658 (internal citations omitted). The Ninth Circuit thus held that a prisoner exhausts his remedies under the PLRA “despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Id.
Here, Defendants did not enforce the procedural rule that required Plaintiff to submit his grievance within thirty days of the grieved issue. Instead, they reached a decision about Plaintiff's grievance on the merits at each stage of the administrative process. As such, under Reyes, Plaintiff fully exhausted his administrative remedies.
II. State Law Medical Malpractice Claims
Defendants assert summary judgment is appropriate as to Plaintiff's state law medical malpractice claims because: (1) the claims are barred by the Oregon Tort Claims Act because they involve events occurring well more than 180 days before the tort claim notice was received; (2) the claims are barred by the two-year statute of limitations for medical malpractice claims; (3) the claims are barred by the statute of ultimate repose; and (4) the claims are subject to Eleventh Amendment immunity. Defs.' Mot. 2, 23, ECF No. 119.
A. OTCA
The OTCA requires plaintiffs seeking to file claims against an Oregon public body or its employees to provide notice of that claim “within 180 days after the alleged loss or injury.” ORS § 30.275(2)(b). “Failure to give timely notice . . . is fatal to a plaintiff's tort claim against a public body.” Denucci v. Henningsen, 248 Or.App. 59, 66 (2012).
Under Oregon law, a plaintiff may satisfy the notice requirement by providing “[f]ormal notice,” “[a]ctual notice,” or by “[commencement of an action on the claim by or on behalf of the claimant within the applicable period of time[.]” ORS § 30.275(3)-(6). Formal notice and actual notice require a claimant to communicate the “time, place and circumstances giving rise to the claim, so far as known to the claimant[.]” ORS §§ 30.275(4)(b) (formal notice); 30.275(6) (actual notice). “[T]he plaintiff has the burden of proving that notice of claim was given as required[.]” ORS § 30.275(7).
“The notice period does not begin to run ‘until plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury.'” Kutz v. Lee, 291 Or.App. 470, 479 (2018) (quoting Adams v. Oregon State Police, 289 Or. 233, 239 (1980)). “That means such time as it appeared probable that plaintiff's damage actually suffered was caused by defendant, or when a reasonably prudent person perceives the role which the defendant has played in the plaintiff's injury.” Id. (citations and internal quotation marks omitted).
Given the evidence presented, and as explained above, Plaintiff should have known about his injury at the time Defendants allegedly failed to provide adequate medical treatment. His claims therefore began accruing at the time of the medical treatment at issue in each of his claims. Plaintiff sent Defendants a tort claim notice, which Defendants received on March 26, 2019. Mitchell Decl. ¶ 4, ECF No. 125. As such, pursuant to the OTCA, Plaintiff's tort claim notice covers alleged losses or injuries accruing up to 180 days earlier, or through September 27, 2018.
Claims 1, 2, 3, 5, 7, 13, 14 and 15 accrued long before September 27, 2018, and are therefore barred. Claim 8 includes no allegations regarding Defendants Gruenwald and Norton on or after September 27, 2018, and is therefore barred. Claim 9 includes no allegations regarding Defendants Norton, Patton, Nelson, or Aguiar on or after September 27, 2018, and is therefore barred. Claim 12 includes no allegations regarding Defendants Norton, Nelson, and Aguiar on or after September 27, 2018, and is therefore barred. Claims 4, 6, 10, and 11 do not contain state law medical malpractice claims. See TAC, ECF No. 56. All of Plaintiffs state law medical malpractice are therefore barred.
As such, Defendants' motion should be granted as to all of Plaintiff's state law medical malpractice claims.
CONCLUSION
For the reasons above, Defendants' motion for partial summary judgment (ECF No. 119) should be GRANTED in part and DENIED in part. The Court summarizes the recommendation for each claim raised in Defendants' motion to dismiss as follows:
I. All State Law Medical Malpractice ClaimsAll Defendants: GRANTED
II. Section 1983 Claims
a. Claim 1
All Defendants: GRANTED
b. Claim 2
All Defendants: GRANTED
c. Claim 3
All Defendants: GRANTED
d. Claim 4
All Defendants: GRANTED
e. Claim 5
All Defendants: GRANTED
f. Claim 6
All Defendants: GRANTED
g. Claim 7
All Defendants: GRANTED
h. Claim 8
Defendant Gruenwald: GRANTED
Defendant Norton: DENIED
i. Claim 9
All Defendants: DENIE
j. Claim 11
Defendant Nutt: GRANTED
Defendant Johnston: GRANTED
Defendant Wetlaufer: GRANTED
Defendant Shelton: GRANTED
Defendant Helfer: GRANTED
Defendant Zeller: GRANTED
Defendant Brosnan: GRANTED
Defendant Nooth: GRANTED
Defendant Myrick: GRANTED
Defendant Bowser: GRANTED
Defendant Bugher: GRANTED
Defendant Gower: GRANTED
Defendant Gulick: GRANTED
Defendant Gruenwald: GRANTED
Defendant Pharmacy Technician 1: GRANTED
Defendant Pharmacy Technician 2: GRANTED
Defendant Pharmacy Technician 3: GRANTED
Defendant Norton: DENIED
Defendant Patton: DENIED
k. Claim 12
All Defendants: DENIED
l. Claim 13
All Defendants: GRANTED
m. Claim 14
All Defendants: GRANTED
n. Claim 15
All Defendants: GRANTED
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 Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. 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, 1157 (9th Cir. 1991).