JOHN JELDERKS, Magistrate Judge.
Pro se Plaintiff Joseph Clig filed this lawsuit under 42 U.S.C. §1983 alleging violations of his Eighth and Fourteenth Amendment rights. Plaintiff alleges that various medical personnel employed by the Oregon Department of Corrections (ODOC) during Plaintiff's incarceration delayed and denied medical treatment for his clubfoot condition and a bacterial infection he contracted while in custody. (Compl. at 2-4).
Defendants moved for summary judgment, arguing Plaintiff cannot establish a genuine issue of material fact as to any claim or Defendant and, in any event, that Defendants are qualifiedly immune from damages. Plaintiff then filed a Motion for Relief under Fed. R. Civ. P. 56(d). This Court denied Plaintiff's motion by Order dated December 14, 2016 but gave Plaintiff additional time to respond to Defendants' motion for summary judgment. Plaintiff, however, failed to submit a Response.(Defs.' Notice of Non-Opp'n to Defs.' Mot. for Summ. J.,). Accordingly, the Court deems admitted the facts asserted by Defendants in their unopposed motion and considers the motion on the merits in light of those undisputed facts. Fed.R.Civ.P. 56(e); Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir.2013).
Based upon the undisputed record and for the reasons set forth below, Defendants' motion should be granted.
In support of their motion, Defendants submitted numerous medical records documenting Plaintiff's medical treatment while in ODOC custody. In addition, Defendants submit the sworn declaration of ODOC's Medical Director, Dr. Steve Shelton. Dr. Shelton reviewed Plaintiff's ODOC medical records, of which he is a custodian and which are regularly maintained by ODOC in the normal course of business. Shelton Decl. ¶2. Dr. Shelton provided his declaration based upon his personal knowledge and in reliance upon Plaintiff's medical records. Id.
Dr. Shelton confirms that Plaintiff was born in June 1983 with congenital club feet, which were surgically repaired in 1983. Id. at ¶6. As a result of his congenital club feet and surgery, Plaintiff has osteoarthritis in his feet and ankles. Id. at ¶7. Dr. Shelton also confirms that Plaintiff contracted a bacterial infection in 2014. Id. The following chronology of Plaintiff's medical care for his clubfoot condition and bacterial infection while in the custody of ODOC is taken from Dr. Shelton's Declaration and the medical and housing records attached to that Declaration.
Plaintiff was admitted to ODOC and housed at the Coffee Creek Correctional Facility (CCCF) on November 19, 2013. Id. at ¶9. While at the Intake Center, he was evaluated by medical staff as part of the Intake process. At the time, he was ordered a low bunk for fifteen days and on November 27, 2013 the low bunk order was extended sixty days. Id.
On December 16, 2013, Plaintiff was transferred from CCCF Intake to the Oregon State Penitentiary (OSP) located in Salem. Id. at ¶10. On December 27, 2013, he was seen by a medical provider and first reported chronic pain in his feet, ankles and legs. He was prescribed a non-steroidal, anti-inflammatory (NSAID), Etodalac, 400 mg. twice a day, for chronic pain management. He also reported some of his discomfort was due to ill-fitting shoes but that he had recently obtained a new pair of shoes. Id at ¶11.
On December 25, 2013, Plaintiff was seen at sick call and reported having had an infection on his foot for the previous couple of weeks. Id. at ¶38. The nurse observed his left foot was swollen and callused and tender to touch. Redness was noted along the outer side of the bottom of the foot and above the heel. Purulent (pus) drainage was observed coming from a small open wound on the outer aspect of the left foot. Plaintiff was scheduled to be seen by a provider. Id.
On December 27, 2013, Plaintiff was seen by a provider who ordered foot soaks for one month and Plaintiff was provided with a basin for this purpose. Id. at ¶39.
On January 9, 2014, Plaintiff sent an inmate written communication to Health Services stating he continued to have foot problems. Id. at ¶12. He was scheduled to be seen by a provider. However, on January 14, 2014, before Plaintiff could be seen by the OSP provider, he was transferred to the Eastern Oregon Correctional Institute (EOCI). Id. at ¶¶13-14.
On February 18, 2014, Plaintiff was seen by a provider at EOCI. Id. at ¶14. He reported experiencing constant and shooting pain in his legs and feet. He was observed to walk with a slight limp. Plaintiff was prescribed gabapentin (Neurontin), 400 mg. twice daily, controlled by staff, for management of chronic nerve pain. This was in addition to the prescribed NSAID, Etodalac, which he was allowed to keep in his cell and take as needed. Id. ¶14.
On March 24, 2014, Plaintiff was seen by a provider for ankle and foot pain. Id. at ¶15. He was instructed to lose weight and his Neurontin dosage was increased. Id. Plaintiff was also seen at sick call on this date for a rash on his left forearm. The nurse observed a maculopapular rash on the left forearm but no inflammation or infection. No medical treatment for the rash was indicated. Id. at ¶40.
On April 14, 2014, Plaintiff went to sick call and reported having sores under his arm. The nurse observed a raised yellow head with a surrounding raised red area approximately 2" x 6" in size and a 1" area with a raised yellow head with a surrounding red area under the left arm. Plaintiff was scheduled to see a provider the next day and was instructed to keep the area clean, dry and intact. The nurse marked the second area with a marker in order to track its progress. Id. at ¶41.
On April 15, 2014, Plaintiff was examined by Dr. Beamer who diagnosed an abscess on the left side. Plaintiff was prescribed antibiotic Clindamycin for three days, Neosporin antibiotic cream for thirty days, Betacap showers for one month to treat the skin inflammation, and hot packs to the chest wall for three days. Id. at ¶42.
On April 23, 2014, Plaintiff was again seen by Dr. Beamer, who noted the area of cellulitis on the left chest wall had increased to a 4" area in spite of the Clindamycin treatment. Plaintiff was admitted to the infirmary in order to receive Vancomycin, an intravenous antibiotic treatment, every twelve hours for two days and to apply hot packs to the left chest wall. Id. at ¶43.
On April 25, 2014, Plaintiff was released from the infirmary. He was doing well and there was no mucopurulent (mucus + pus) discharge in the affected area. Plaintiff was educated on wound care and was continued on the Clindamycin. Id at ¶44.
On April 28, 2014, Plaintiff returned to Health Services for a dressing change. He reported having marks on his skin that were irritating. The nurse observed four areas of reddened scaly skin around wounds that had been incised and drained earlier. There was no drainage or pustules (blisters or pimples), just very red patches. Plaintiff was given Lotrimin cream for possible fungal infection. Id. at ¶45.
On May 4, 2014, Plaintiff was seen in Health Services and reported having a new sore spot that felt hard and was painful. The nurse observed that the other wounds were healing well. The new raised area was in the same vicinity as the others and was hard, red, swollen, and tender but with no drainage. Plaintiff was instructed to continue his wound care and to notify Health Services staff if the wound opened or began to drain. Id. at ¶46.
On May 5, 2014 at 11:00 a.m., Plaintiff was seen by a nurse regarding a new raised area and was scheduled to be seen by a provider that same day. Dr. Beamer examined the new raised area, diagnosed it as an abscess and incised and drained it. Doxycycline, a tetracycline antibiotic, was prescribed for seven days. Id. at ¶¶47-48.
On June 2, 2014, Plaintiff reported to Health Services staff that he had boils that had developed two days earlier. The nurse observed a raised lump under the skin of the left armpit approximately ¾ inch in size. He was scheduled for a consult with his provider. Later the same morning, Dr. Beamer examined the area, diagnosed abscess and incised and drained it. Lab tests were ordered. Id. at ¶49.
On August 4, 2014, Plaintiff received x-rays of both ankles. The findings stated:
Id. at ¶16 citing Att. 2, p. 129.
On September 22, 2014, Plaintiff was seen by a provider. He reported increased ankle pain and said Neurontin was no longer managing his chronic pain. Id. at ¶17. Plaintiff was referred to the Therapeutic Level of Care (TLC) committee for an orthopedic consult and this was approved on September 23, 2014. Id.
On October 8, 2014, Plaintiff was examined by orthopedic specialist, Richard Carpenter, M.D. Dr. Carpenter observed that Plaintiff had stiff and rigid feet with limited plantarflexion and his dorsiflexion was limited to about neutral. He was also starting to develop degenerative arthritis in the subtalar joint bilaterally. Id. at ¶18. Dr. Carpenter administered 1cc Aristospan (a corticosteroid) by injection in each subtalor joint (joint that connects the heel to the ankle) and recommended a gauntlet-style ankle and foot brace since Plaintiff had reported this worked well to manage his ankle and foot pain while living in the community. Dr. Carpenter recommended non-narcotic pain management with tramadol or NSAIDs. Id.
On November 5, 2014, Dr. Kelly ordered that Plaintiff be referred to the TLC committee to review his need for ankle braces, rocker-bottom shoes, and for tramadol, 50 mg twice daily as needed. Id. at ¶19.
On November 18, 2014, the TLC approved tramadol (Ultram) 50 mg. twice daily and the self-purchase of braces according to the policy and procedure on ownership of permanent durable medical equipment. Id. at ¶¶19-20.
Over the next few months, Health Services staff worked to either obtain braces from Plaintiff's family or order them. In the meantime, Plaintiff continued to receive the prescribed medication for pain management. Id. at ¶21.
On May 13, 2015, Plaintiff was seen by Columbia Basin Prosthesis to order special shoes. Id. at ¶22.
On June 17, 2015, Plaintiff was seen by Dr. Carpenter and received a second round of injections of Aristospan to the subtalar joints. Id. at ¶23.
On July 8, 2015, Plaintiff was issued one lace-up ankle brace because only one was available. Plaintiff was issued a second lace-up ankle brace on July 22, 2015. Both pair were issued to him to use until his specially-ordered shoe braces arrived. Id. at ¶24.
On August 3, 2015, Columbia Basin Prosthesis, contacted Health Services staff to report the custom-made shoes were damaged when they tried to remove the metal shanks and that another pair of shoes was on order. Plaintiff received his custom-made braces and rocker bottom shoes on August 17, 2015. Id. at ¶¶25-26.
On August 28, 2015, Plaintiff was seen by Dr. Kelly to discuss continual ankle and foot pain. Id. at ¶28. Plaintiff requested the subtalar injections be repeated soon due to their effectiveness in alleviating his pain for an extended period of time. He described his chronic pain as a dull, aching sensation that increased with ambulation. He reported receiving some pain relief from Tramadol at 200 mg per day. Plaintiff reported he could perform his activities of daily living but with some difficulties. He denied weakness of any kind and admitted to gaining a significant amount of weight, which likely contributed to his pain. Dr. Kelly ordered that Plaintiff be scheduled with Dr. Carpenter for a second series of bilateral tarsal tunnel subtalar injections and changed his medication schedule for Tramadol from afternoon to morning at Plaintiff's request to improve his function capacity while diminishing the pain response during the morning hours. Plaintiff was instructed to contact Health Services staff if symptoms continue. Id.
Plaintiff was seen regularly over the next few months for a variety of health issues but did not report any problems with his feet and ankles. Id. at ¶29.
On February 2, 2016, Plaintiff was examined by Dr. Kelly. His notes indicate that Plaintiff reported his pain as mostly dull in nature but also as sharp, on occasion, and localized to the subtalar joints and exacerbated with walking long distances. Plaintiff reportedly expressed an interest in trying Alpha Lipoic acid for pain relief and did not want to increase the Tramadol or Neurontin for pain at that time. Plaintiff reported he was fully able to perform activities of daily living without any effort and denied any weakness. Id. at ¶30.
Dr. Kelly opined that it was "reasonable to issue [Plaintiff] a Medrol Dosepak
On February 3, 2016, at 7:40 p.m., Plaintiff was seen by Health Services staff because he was having an allergic reaction to the Medrol Dosepak (steroids).Id. at ¶32. He was given Benadryl and instructed to discontinue taking the Medrol Dosepak until he could be seen by a provider. By 9:00 p.m., Plaintiff reported feeling better. Id.
On February 4, 2016, at 12:55 p.m., Plaintiff was seen by Health Services staff and had no symptoms of an allergic reaction, hives or rashes. Id. at ¶33.
Plaintiff's chronic arthritic pain continues to be managed with medication and the use of his ankle braces and rockerbottom shoes. Id. at ¶34.
As noted above, Plaintiff is alleging violations of his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment, which he alleges resulted from Defendants' provision of constitutionally inadequate medical treatment. To succeed on such a claim, a plaintiff must demonstrate that prison medical officials acted, or failed to act, with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A serious medical need includes "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled in part on other grounds by WMX Techs, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
For purposes of this motion, the parties do not dispute that Plaintiff's underlying conditions constitute a serious medical need. Thus, the issue is whether the various defendants acted with deliberate indifference to those needs.
Deliberate indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Deliberate indifference includes both an objective and a subjective component. Objectively, an official's conduct must pose "a risk of `objectively, sufficiently serious harm.'" Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quoting Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995)). Harm is objectively sufficiently serious when a "failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Id. (citing McGuckin, 974 F.2d at 1059; Estelle, 429 U.S. at 104).
Subjectively, the official must also possess a "`sufficiently culpable state of mind' in denying the proper medical care." Clement, 298 F.3d at 904 (quoting Wallis, 70 F.3d at 1076). Deliberate indifference "describes a state of mind more blameworthy than negligence ... [and] requires `more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer v. Brennan, 511 U.S. 825, 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). The subjective element "is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). "Deliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
Furthermore, "[a] mere `difference of medical opinion ... [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). "Rather, to prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment `was medically unacceptable under the circumstances,' and was chosen `in conscious disregard of an excessive risk to [the prisoner's] health.'" Id.
In his Complaint, Plaintiff alleges that Defendants denied him access to ankle braces and orthopedic shoes, refused to prescribe narcotic pain medication and continuously delayed treatment for his clubfoot condition and bacterial infection. He also alleges that insufficient medical staffing at EOCI contributed to delays and inadequacies in his treatment.
Even viewing the evidence in the light most favorable to Plaintiff, I conclude that he has made no showing that his treatment was medically unacceptable under the circumstances. Plaintiff has not established that Defendants ignored or failed to respond to his pain or possible medical needs or that they denied or delayed medical treatment in such a way as would constitute deliberate indifference.
The record reflects that prison staff examined and evaluated Plaintiff often and promptly treated his medical conditions. Plaintiff was provided low bunk assignments, x-ray imaging, specialist consultations and, ultimately, customized ankle braces and orthopedic shoes for his clubfoot condition. Plaintiff's complaints regarding his bacterial infection were addressed promptly by the medical staff.
Pain medication was provided and was adjusted in response to Plaintiff's reported pain levels. Courts have routinely found that the provision of alternatives to narcotic pain medication does not provide the basis for an Eighth Amendment claim. See e.g., Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (failure to provide local anesthetic for pain does not suffice for an Eighth Amendment claim); Heilbrun v. Villanueva, No. 3:14-CV-1706-SI, 2016 WL 3200121, at *4 (D. Or. June 7, 2016)(provision of over the counter pain medication in lieu of narcotic pain relievers not a basis for an Eighth Amendment claim);Jackson v. Multnomah County, 3:12-cv-00764-SI, 2013 WL 428456, at *4 (D. Or. Feb. 4, 2013) (same); Fields v. Roberts, 2010 WL 1407679, at *4 (E.D. Cal. April 7, 2010) (refusing to prescribe narcotic pain medication even when an outside doctor recommended it is a difference in medical opinion on the proper course of treatment and is not a basis for an Eighth Amendment claim). In any event, the record shows that, in response to Plaintiff's reports of continued and increased pain, medical providers did begin to incorporate narcotic pain relievers into Plaintiff's treatment regimen. To the extent Plaintiff disagrees with the treatment he received, this represents a mere difference of opinion and is insufficient as a matter of law to constitute deliberate indifference. See Toguchi, 391 F.3d at 1058 Id.
Plaintiff has failed to show that Defendants ignored or failed to respond to Plaintiff's pain or possible medical needs or that they denied, delayed, or intentionally interfered with Plaintiff's medical treatment. Neither has Plaintiff shown that the chosen course of treatment "was medically unacceptable under the circumstances," and was chosen "in conscious disregard of an excessive risk to [the prisoner's] health." Id.
In sum, Plaintiff has failed to produce evidence from which a reasonable juror could conclude that Defendants acted with deliberate indifference to his serious medical need. Furthermore, because no constitutional violation has occurred, I need not and do not address the issue of qualified immunity. As there exists no genuine issue of material fact relating to any of Plaintiff's claims, Defendants' motion for summary judgment should be granted.
For the reasons set forth above, Defendants' motion for summary judgment (#65) should be GRANTED.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due April 6, 2017. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
