Opinion
2:17-cv-02007-JR
05-27-2021
DAVID EDGAR WONNACOTT, Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS, et al., Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pro se plaintiff David Edgar Wonnacott filed this action under 42 U.S.C. § 1983 against defendant Lamia Moore, a Correctional Corporal with the Oregon Department of Corrections (“ODOC”). Moore now moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, Moore's motion should be granted and this case should be dismissed.
As addressed in greater detail below, the remaining defendants and claims were previously dismissed from this action.
BACKGROUND
At all relevant times, plaintiff was an adult in custody at Two Rivers Correctional Institution. On April 4, 2017, plaintiff was tested for methicillin-resistant staphylococcus aureus (“MRSA”) prior to receiving ankle surgery from an outside provider; the results were negative. Roberts Decl. ¶ 5 (doc. 73); Roberts Decl. Ex. 1, at 1, 5-6 (doc. 73). On April 19, 2017, plaintiff presented to health services and reported that he had MRSA on his elbow. Roberts Decl. ¶ 6 (doc. 73); Roberts Decl. Ex. 1, at 2, 6, 11 (doc. 73); Second Wonnacott Decl. Ex. 1, at 1-13 (doc. 80). Following an examination, he was prescribed an intravenous antibiotic (Vancomycin) twice daily for three days, and then an oral antibiotic (Doxycycline) twice daily for ten days. Id. On April 22, 2017, after presenting with pain in his diaphragm after taking his medication, plaintiff was prescribed a different oral antibiotic (Septra) to be taken twice daily for ten days. Roberts Decl. ¶ 8 (doc. 73); Roberts Decl. Ex. 1, at 3, 9 (doc. 73); Second Wonnacott Decl. Ex. 1, at 1-13 (doc. 80).
On April 30, 2017, at approximately 12:30 p.m., plaintiff was admitted to the Disciplinary Segregation Unit. Roberts Decl. ¶ 9 (doc. 73); Roberts Decl. Ex. 2, at 2 (doc. 73). At 2 p.m., plaintiff informed an unnamed nurse about his MRSA infection and requested his “incell” antibiotic. Third Am. Compl. pg. 5 (doc. 16). The nurse instructed plaintiff that it was up to the property sergeant to issue medication in segregation. Id.
At approximately 6 p.m., plaintiff spoke with defendant Moore and again requested his antibiotic. Id. at 6. Moore stated the property sergeant was the only ODOC staff member who could access plaintiff's property and advised him to send a written communication, or kyte, to the property sergeant to obtain his “in cell” medication. Id. Plaintiff requested Septra four additional times from various unnamed ODOC staff members. Id. at 7-12. On May 1, 2017, at approximately 7:30 a.m., plaintiff was given his antibiotic. Id.
Later that day, plaintiff initiated a Grievance against Moore and several unnamed nurses, stating that he had sepsis and sought his “in-cell” antibiotic multiple times after being admitted to the Disciplinary Segregation Unit on April 30, but it was not administered until the following morning. Sullivan Decl. Ex. 1, at 6 (doc. 72); Second Wonnacott Decl. Ex. 1, at 14 (doc. 80). On June 7, 2017, Moore responded to plaintiff's Grievance as follows:
Inmate Wonnacott. I do not recall the incident you are referring to. I do not recall you asking me for medication. If you had asked me for any medication that was in your property, I would have issued it to you. The only thing I remember while you were housed in DSU is that that you had crutches and to make it easier for you to go to the showers, I provided you with a wheel chair for that purpose.Sullivan Decl. Ex. 1, at 5 (doc. 72); Second Wonnacott Decl. Ex. 1, at 15 (doc. 80). Plaintiff's Grievance Appeal was denied. Sullivan Decl. Ex. 1, at 1-4 (doc. 72); Second Wonnacott Decl. Ex. 1, at 16-19 (doc. 80).
Plaintiff did not complain of MRSA or discuss the need for additional antibiotics with any provider he saw in May, June or July 2017, despite obtaining regular medical care. Roberts Decl. ¶¶ 13-14 (doc. 73). He did contract MRSA again in March 2018 and January 2019 on a different location of his body, and was provided treatment related thereto. Second Wonnacott Decl. Ex. 1, at 20-24 (doc. 80).
Plaintiff commenced this action against the ODOC, Moore, and a number of individually named ODOC staff members (including administrators and supervisors) alleging the deprivation of his Eighth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983 as a result of the April 30, 2017, events - i.e., the delay in providing socks, underwear, a towel (Claim 1), and his “in-cell” antibiotic medication (Claim 2) upon admittance to the Disciplinary Segregation Unit. The Court dismissed plaintiff's initial pleadings for failure to state a claim under 28 U.S.C. § 1915(e). Order 3-7 (Feb. 13, 2018) (doc. 7).
Plaintiff twice amended his complaint, each time asserting essentially the same claims against Moore and John and Jane Doe ODOC medical providers, and seeking $20,000 from each defendant in damages for “stress, anxiety, fear, [and] resistance to antibiotics.” Second Am. Compl. pg. 5 (doc. 13). On August 13, 2018, the Court dismissed plaintiff's Second Amended Complaint, reiterating that his first claim neglected to establish a sufficiently serious deprivation to violate the Eighth Amendment. Order 2-3 (Aug. 13, 2018) (doc. 15). Regarding plaintiff's second claim, the Court explained that plaintiff failed to “allege actual harm associated with the delay sufficient to state a claim” and further denoted that plaintiff “cannot recover compensatory damages for stress, anxiety, or fear in the absence of an allegation that he suffered more than de minimus physical injury.” Id. at 4-5.
On September 4, 2018, plaintiff filed his Third Amended Complaint in which he abandoned Claim 1. Third Am. Compl. pg. 5 (doc. 16). In relevant part, plaintiff alleges the Doe medical providers neglected to provide adequate medical treatment by delaying the provision of his “in cell” medication, and that Moore's failure to personally retrieve his antibiotic was done deliberately and indifferently with reckless disregard to his serious medical need. Id. at pgs. 5-12. Thereafter, the Doe medical providers were dismissed from this action. Order 1-2 (Aug. 15, 2019) (doc. 39).
On February 22, 2021, Moore filed the present motion for summary judgment as to plaintiff's sole remaining Eighth Amendment claim. On February 23, 2021, the Court provided plaintiff with a “Summary Judgment Advice Notice, ” explaining this lawsuit's procedural posture and what was expected from plaintiff to survive summary judgment. Briefing was completed regarding that motion on May 6, 2021.
To the extent plaintiff also asserts his remaining claim under the Fourteenth Amendment, it is well-established that, if a constitutional claim “is covered by a specific constitutional provision, ” it should not be analyzed under due process. United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); see also Roberts v. Gonzalez, 2013 WL 4663882, *8 (C.D. Cal. Mar. 5), adopted by 2013 WL 4663551 (C.D. Cal. Aug. 29, 2013) (dismissing the plaintiff's duplicative Fourteenth Amendment claims: “The obligations of prison officials to take reasonable measures to guarantee the safety of prisoners and to provide adequate medical care to prisoners fall within the scope of the Eighth Amendment”) (collecting cases); Windham v. Franklin, 2014 WL 690043, *12 (C.D. Cal. Feb. 20, 2014) (claims challenging conditions of confinement are properly brought under the Eighth Amendment rather than the Fourteenth Amendment).
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
This case hinges on whether the denial of access to a prescribed antibiotic for approximately thirteen hours after plaintiff was placed in disciplinary segregation and requested his “in cell” medication from Moore runs afoul of the U.S. Constitution's proscription against cruel and unusual punishment. Moore argues summary judgment is warranted because plaintiff cannot demonstrate an Eighth Amendment violation and, even so, qualified immunity attaches. Def.'s Mot. Summ. J. 2 (doc. 71). Moore asserts that her actions are also protected by discretionary immunity. Id.
Plaintiff opposes summary because “non-medical officials [can be liable] for interfere[ing] with the treatment your doctor ordered” and he “was present and experienced the illness, ” thereby purportedly creating a disputed issue of material fact. Pl.'s Resp. to Mot. Summ. J. 1 (doc. 76); Pl.'s Mem. of Law 1-3 (doc. 84). In his supporting declarations, plaintiff states that, in contrast to the one missed one dose of Septra alleged in his complaint, he actually “missed 4 doses, ” which caused slowed healing, “pain . . . increased in duration, ” and the potential his MRSA infection could become more resistant to treatment. First Wonnacott Decl. ¶¶ 5-7 (doc. 77); Third Wonnacott Decl. pg. 1 (doc. 81).
I. Preliminary Issues
Plaintiff's attempts to interject new allegations regarding the number of missed antibiotic doses are unavailing at this stage in the proceedings for two reasons. First, the operative pleading does not include such allegations and summary judgment “is not a procedural second chance to flesh out inadequate pleadings.” Wasco Prods., Inc., v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation and internal quotations omitted); see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (where “the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court”); McClellan v. I-Flow Corp., 2009 WL 3448871, *1 (D. Or. Oct. 22, 2009) (declining to consider the plaintiffs' “claims [on summary judgment] that are not yet pled”).
Second, plaintiff does not provide any explanation for how he allegedly missed four antibiotic doses between approximately 12:30 p.m. on April 30, 2017, when he was first admitted to the Disciplinary Segregation Unit, and 7:30 a.m. on May 1, 2017, when he concedes being given his “in cell” medication. See, e.g., First Wonnacott Decl. ¶ 5 (doc. 77); Third Wonnacott Decl. pg. 1 (doc. 81). It is undisputed that Septra was prescribed twice daily for ten days - i.e., every 12 hours. Roberts Decl. Ex. 1, at 2-11 (doc. 73); First Wonnacott Decl. ¶ 4 (doc. 77); Second Wonnacott Decl. Ex. 1, at 1-13 (doc. 80).
Finally, plaintiff's conclusory declaration statements relating to the medical severity of his MRSA infection, potential risks associated with missing doses, and inadequacy of the ODOC's policies and medical care are insufficient to create a triable issue. See, e.g., First Wonnacott Decl. ¶¶ 8-12 (doc. 77); Third Wonnacott Decl. pg. 1 (doc. 81); see also FTC v. Publ'g Clearinghouse, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (conclusory, self-serving statements in a brief or declaration that are unsupported by facts or evidence do not create genuine issues for trial); Bogner v. R & B Sys., Inc., 2011 WL 1832750, *3 (E.D. Wash. May 12, 2011) (court “is not bound by [a declarant's] legal conclusions”; disputed issues of material fact can “not [be] created by simply averring that an act ‘was [a legal violation or]' declaring that one's versions of events is ‘consistent' with one's theory of the case . . . declarations [must only be considered] for the facts contained therein”). Nevertheless, even accepting these facts as true does not alter the outcome of this case given the overall record before the Court.
II. Summary Judgment Analysis
To prevail under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of deprived him or her of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). It is undisputed that Moore qualifies as a state actor for the purposes of § 1983.
Qualified immunity shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To determine whether a government actor is entitled to qualified immunity, the court evaluates, in no particular order, whether: (1) the alleged misconduct violated a right; and (2) that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Whether Plaintiff's Rights Were Violated
The Eighth Amendment requires prison officials to provide humane conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prisoner claiming an Eighth Amendment violation must establish, both objectively and subjectively, that conditions of confinement are cruel and unusual. Wilson v. Seiter, 501 U.S. 294, 297-98 (1991). To satisfy the objective component, the plaintiff must allege a deprivation that is in relation to a “sufficiently serious” medical need. Id. at 298. “[A] serious medical need is present whenever the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Lolli v. Cnty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (citations and internal quotations omitted).
To satisfy the subjective component, the plaintiff must demonstrate that the prison official was “deliberately indifferent” to a substantial risk of serious harm. Farmer, 511 U.S. at 834. Deliberate indifference in this context means that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he also must draw the inference.” Id. at 837. Only such indifference can offend “evolving standards of decency” in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Here, the record does not reflect that plaintiff was subject to an objectively serious risk of harm, nor that Moore had a sufficiently culpable state of mind in denying plaintiff his Septra and instead informing him to submit a kyte. Concerning the former, Warren Roberts, a licensed physician employed as the Medical Director for the ODOC and Chief Medical Officer at Coffee Creek Correction Facility, is the only medical source to proffer testimony in this case. Roberts Decl. ¶ 1 (doc. 73). Dr. Roberts stated under penalty of perjury that he reviewed plaintiff's treatment records and, even assuming plaintiff did miss one dose of Septra, there no indication of any adverse impact. Id. at ¶¶ 1-2, 4, 12, 16-17.
In particular, Dr. Roberts explained that “Septra has a half-life of around ten (10) hours and it takes about three (3) days to completely leave the system.” Id. at ¶ 11. Accordingly, even accepting plaintiff's new allegations that he was denied Septra for two full days instead of half of one day, his “therapeutic serum level” would have nonetheless remained within a medically acceptable range. Id. at ¶¶ 11, 15-18. Indeed, the documentary evidence shows that plaintiff was admitted to the Disciplinary Segregation Unit on the afternoon of April 30, 2017, and his “in cell” medications were resumed the following morning. Roberts Decl. Ex. 1, at 1-11 (doc. 73); Roberts Decl. Ex. 2, at 2 (doc. 73); Second Wonnacott Decl. Ex. 1, at 1-13 (doc. 80). During this time frame, plaintiff does not identify any specific injury that occurred and the medical record does not evince any subsequent treatment related thereto. Roberts Decl. ¶¶ 13-14 (doc. 73); Second Wonnacott Decl. Ex. 1, at 20-24 (doc. 80).
Given these undisputed facts, plaintiff's generalized allegations of pain, antibiotic resistance, and “increased body temperature” are insufficient to establish a serious medical need. Third Am. Compl. pgs. 6-7 (doc. 16); First Wonnacott Decl. ¶¶ 6-12 (doc. 77); Third Wonnacott Decl. pg. 1 (doc. 81); see also Herrington v. Bristol, 2019 WL 7598855, *20-21 (D. Or. July 29, 2019), adopted by 2020 WL 265192 (D. Or. Jan. 17, 2020) (“mere disagreement with a physician's [opinion] does not establish deliberate indifference as a matter of law” and the party alleging the Eighth Amendment violation must come forth with evidence showing “treatment was medically unacceptable under the circumstances”) (citing Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)).
Regarding the latter, even accepting that Moore did not access plaintiff's belongings to search for his dose of Septra, plaintiff acknowledges that Moore advised him on how to obtain his property (i.e., a kyte submitted to the property sergeant). Third Am. Compl. pgs. 6-7 (doc. 16). Accordingly, there is no evidence Moore purposefully failed to respond to plaintiffs medical needs nor was plaintiff harmed by any alleged indifference.
Thus, the record before the Court does not demonstrate any further injury, significant or otherwise, or that Moore knew of and disregarded an excessive risk to plaintiff's health or safety. Stated differently, there is no evidence plaintiff was facing a substantial risk of serious harm between April 30 and May 1, 2017, or that Moore was deliberately indifferent. While the Court is cognizant of the fact that plaintiff disagrees, he does not proffer any meaningful contradictory medical or other evidence in support of his opposition.
In essence, plaintiff's allegations sound in medical negligence - i.e., that Moore and ODOC medical staff ignored training and information they received regarding communicable diseases, and should have searched for his medication immediately instead of instructing him to contact the property sergeant. Aside from the fact that there is no evidence plaintiff was actually diagnosed with a communicable disease, a complaint that correctional staff was negligent in diagnosing or treating a medical condition is insufficient under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner”); see also Farmer, 511 U.S. at 844-45 (because “a prison official's duty under the Eighth Amendment is to ensure reasonable safety, ” officials who respond reasonably are not liable) (citation and internal quotations omitted). Moore's motion should be granted.
Plaintiff's allegations sounding in negligence fail for the additional reason that, under the Oregon Tort Claims Act, public bodies and their officers, agents, and employees are immune from civil liability for “[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Or. Rev. Stat. § 30.365(6)(c). “Once a discretionary choice has been made, the immunity follows the choice” and “protects not only the officials who made the decision, but also the employees or agents who effectuate or implement that choice in particular cases.” Westfall v. State ex rel. Or. Dept. of Corrs., 355 Or. 144, 161-64, 324 P.3d 440 (2014). An employee who applies a policy decision can therefore only be liable if he or she “makes an additional choice - one that is not subject to discretionary or other immunity.” Id. As such, even if Moore's actions amounted to negligence, discretionary immunity would attach because her deferral to the property sergeant as the ODOC employee authorized to process prisoner requests and to retrieve property from prisoners' belongings while they are confined in the Disciplinary Segregation Unit is a protected policy choice. Specifically, that prisoners are not permitted to carry their medications into segregation is a matter of policy, and there is no argument or evidence that Moore's actions represented anything other than staff applying ODOC policy. See Maney v. Brown, 2020 WL 7364977, *12-13 (D. Or. Dec. 15, 2020) (granting summary judgment in favor of the defendant on discretionary immunity grounds where the plaintiffs did “not allege a complete failure to act, nor a failure to implement the challenged policy”).
B. Whether the Right Was Clearly Established
A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). The dispositive inquiry is whether the state actor had “‘fair warning' that his conduct deprived his victim of a constitutional right.” Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”).
As addressed herein, Moore did not violate plaintiff's constitutional rights. Nevertheless, even if a disputed issue of material fact existed concerning this issue, Moore would be entitled to qualified immunity. Namely, there is no evidence Moore withheld plaintiff's medication in contravention of ODOC policy, or otherwise that the right to have immediate access to antibiotics is clearly established in this context. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”). And, significantly, plaintiff does not address, or even oppose, Moore's immunity-related arguments. See Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), affd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted).
RECOMMENDATION
For the reasons stated herein, Moore's Motion for Summary Judgment (doc. 71) should be granted and judgment should be prepared dismissing this case. 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.