STACIE F. BECKERMAN, Magistrate Judge.
Donald Allen Gosney ("Plaintiff") is an inmate in the custody of the Oregon Department of Corrections ("ODOC"). He brought this civil rights action against nurse practitioner Linda Ann Gruenwald, and other ODOC medical personnel (collectively, "Defendants"). In his Second Amended Complaint, Plaintiff alleges that Defendants violated his rights to adequate medical care and reasonable accommodations, as guaranteed by the Eighth and Fourteenth Amendments (claims one through three), and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (claims four and five) (Sec. Am. Compl. ("SAC") ¶¶ 85-109.)
Plaintiff now moves for partial summary judgment on his first claim for relief (ECF No. 94), and Defendants move for partial summary judgment on the first, second, and third claims for relief (ECF No. 125). See Fed. R. Civ. P. 56. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons that follow, the Court recommends that the district judge deny Plaintiff's motion for partial summary judgment and grant Defendant's motion for partial summary judgment.
On February 22, 2013, and again two weeks later, Plaintiff attended "sick-call" at Two Rivers Correctional Institution. He reported to ODOC medical staff that he was experiencing pain and decreased mobility in his left hip, stemming from a childhood infection. (SAC ¶¶ 4, 17, 19.) Over a year later, on May 6, 2014, Plaintiff attended sick-call again to report hip pain. (SAC ¶ 21.)
Plaintiff received an x-ray that week. (SAC ¶ 22.) Defendant Gruenwald evaluated Plaintiff on May 22, 2014. (Decl. of Dr. DiGiulio in Supp. of Defs. Mot. for Partial Summ. J. ("DiGiulio Decl.") ¶ 11.) She prescribed a low bunk/tier/no stairs restriction for one year and pain medication. (Id.)
On May 27, 2014, Defendant Gruenwald recommended, and ODOC's Therapeutic Level of Care Committee ("TLOC") approved, an MRI. (DiGiulio Decl. ¶ 12.) The test was completed two weeks later. (SAC ¶¶ 22-26; DiGiulio Decl. ¶ 13.) The MRI findings were compatible with degenerative disease. (DiGiulio Decl. ¶ 13.)
Defendant Gruenwald evaluated Plaintiff again on June 27, 2014. (Id. ¶ 14.) She noted his gait, his range of motion, and his reported physical activity, and she changed his prescription pain medication based on Plaintiff's report of continued pain. (Id.)
Two and a half months later, on September 13, 2014, Plaintiff complained that his medication was not sufficiently managing his pain. (Id. ¶ 15.) Defendant Gruenwald responded two days later, on Monday, prescribing a different medication for pain and inflammation relief. (Id.)
On October 3, 2014, a nurse called Plaintiff in to check his condition. (SAC ¶ 30; DiGiulio Decl. ¶ 16.) Plaintiff reported decreased mobility and increasing difficulty with daily activities, and discussed the possibility of a change in work assignment. (SAC ¶ 30; DiGiulio Decl. ¶ 16.) Early the next week, Defendant Gruenwald presented Plaintiff's case to the TLOC, and the TLOC approved an orthopedic consultation. (DiGiulio Decl. ¶ 17.)
Plaintiff met with Dr. Richard Carpenter, an orthopedic specialist, on October 27, 2014. (SAC ¶ 34; DiGiulio Decl. ¶ 18.) Defendant Gruenwald asked Dr. Carpenter to evaluate Plaintiff's hip and provide a treatment recommendation and a timeframe on how long "he can go for needing hip replacement." (DiGiulio Decl. ¶ 18.) In his report, Dr. Carpenter wrote, "[Plaintiff] suffered a hematogenous spread of a systemic infection at three years of age and now has rather significant degenerative arthritis of the left hip. Presently, he is very painful and would like a left total hip arthroplasty." (DiGiulio Decl., Att. 1 at 39.) He explained that Plaintiff faced a slightly increased chance of infection with surgery, but Dr. Carpenter believed that he could perform the hip replacement safely. (Id.) Plaintiff recalls Dr. Carpenter "explaining the need for total hip replacement as soon [as] possible" during their appointment. (SAC ¶ 34.) However, Dr. Carpenter did not provide a timeframe in his report, stating only "[t]his should be presented to the treatment committee, and we will be happy to perform a trabecular metal in-growth prosthesis on both the acetabular and femoral side." (DiGiulio Decl., Att. 1 at 39.)
Plaintiff's medical record shows a notation on October 27, 2014, stating "pt returned from outside appt pink sheet returned given to provider for review." (DiGiulio Decl., Att. 1 at 15.) The following day, Defendant Gruenwald wrote, "Will present to TLOC." (Id.)
The following week, Plaintiff complained of numbness in his leg. (SAC ¶ 39; DiGiulio Decl. ¶ 18.) He was provided ice, heat, ibuprofen, and relief from work duties. (SAC ¶ 40; DiGiulio Decl. ¶ 21-22.)
On November 18, 2014, Defendant Gruenwald presented Plaintiff's case to the TLOC and requested a prescription for pain medication. She did not request surgery. (SAC ¶ 43; DiGiulio Decl. ¶ 23.)
Defendant Gruenwald saw Plaintiff on December 23, 2014. (SAC ¶ 49; DiGiulio Decl. ¶ 24.) Plaintiff reported severe pain and inability to work. He said that his then-current prescription was somewhat, but not sufficiently, effective. (SAC ¶ 49; DiGiulio Decl. ¶ 24.) That day, Defendant Gruenwald prepared a request for hip replacement surgery to present to the TLOC. (DiGiulio Decl. ¶ 24.) She presented the surgery request to the TLOC in mid-January. (SAC ¶ 49; DiGiulio Decl. ¶ 27.) The TLOC denied the request, saying "Not at this time cont. eval monitor—post-pone as long as possible." (DiGiulio Decl., Att. 1 at 48.) Plaintiff was 44 years old at this time. (DiGiulio Decl. ¶ 27.)
On February 6, 2015, Plaintiff injured his right foot after catching himself when his left hip gave out. (SAC ¶ 57; DiGiulio Decl. ¶ 28.) He reported hip pain several times during February, and informed medical staff that the prescribed medication was providing little to no relief anymore. (SAC ¶¶ 58-65.) Plaintiff was provided hot packs, and an additional pain medication to take in combination with the existing prescription. (Id.) Plaintiff reported the additional medication to be ineffective as well. (SAC ¶ 67.)
On March 13, 2015, Defendant Gruenwald saw Plaintiff again. (SAC ¶ 70.) She reported speaking to other prison personnel familiar with Plaintiff who described Plaintiff limping, but ambulatory and with no gait instability. (SAC ¶ 70.) She also noted Plaintiff's complaints about pain and the ineffectiveness of the prescribed medications. (Id.) Four days later, Defendant Gruenwald requested, and the TLOC approved, hip replacement surgery. (SAC ¶ 74.)
ODOC provided Plaintiff with hip replacement surgery on April 9, 2015. (SAC ¶ 79.) Plaintiff is healed and physically well-functioning. (DiGiulio Decl. ¶ 36.)
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
To establish a violation under the Eighth Amendment prohibition of cruel and unusual punishment based on prison medical treatment, a plaintiff must show "deliberate indifference to serious medical needs." 42 U.S.C. § 1983; Estelle v. Gamble, 429 U.S. 97, 104 (1976). The test for deliberate indifference has two parts. First, the plaintiff must show a "serious medical need" by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). Second, "the plaintiff must show the defendant's response to the need was deliberately indifferent." Id. The second prong can be satisfied by showing both "a purposeful act or failure to respond to a prisoner's pain or possible medical need and . . . harm caused by the indifference." Id. (citation omitted).
The deliberate indifference standard may be satisfied 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." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (citation omitted). Negligence, and even "civil-law recklessness," are insufficient. Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). "[I]nstead . . . a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless 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 must also draw the inference." Id. at 837. A "plaintiff's showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over the other" is "insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff alleges in his first three claims for relief that Defendants provided inadequate medical care relating to Plaintiff's hip pain, in violation of the Eighth Amendment. Specifically, in his first and second claims, Plaintiff alleges that Defendant Gruenwald, acting in her personal capacity, intentionally interfered with Plaintiff's medical treatment by requesting medication during the November 2014 TLOC meeting, instead of reporting Dr. Carpenter's surgery recommendation. (SAC ¶¶ 85-94.) Plaintiff alleges in his third claim for relief that Defendants Gruenwald, DiGiulio, Shelton, Norton, Beamer, and Lozier, acting in their personal capacities, violated the Eighth Amendment by delaying his hip replacement surgery. (Id. at ¶¶ 95-99; see also ECF No. 150.)
Plaintiff alleges that Defendant Gruenwald was aware that "Plaintiff's hip condition cause[d] him substantial pain, was worthy of treatment, and affected his daily individual activities." (SAC ¶ 85.) Dr. Carpenter, an orthopedic specialist, consulted on Plaintiff's case and recommended hip surgery. (Id.) In his first claim for relief, Plaintiff alleges that Defendant Gruenwald disregarded that recommendation on November 18, 2014, and asked the TLOC "for maintenance on medication as a solution," rather than surgery. (SAC ¶ 87.) In his second claim, he alleges that Defendant Gruenwald intentionally withheld Dr. Carpenter's surgery recommendation from the TLOC, leaving the committee with insufficient information to make an informed decision about the appropriate course of treatment for Plaintiff's condition. In so doing, Plaintiff claims that Defendant Gruenwald "denied Plaintiff adequate medical care, by intentionally interfering with the treatment prescribed . . . ." (SAC ¶ 89.)
The undisputed facts support a finding that Defendant's arthritis constituted a "serious medical need," but they do not support a finding that Defendant Gruenwald acted with deliberate indifference to that need. Plaintiff cannot satisfy the second prong of the deliberate indifference standard, and therefore judgment should enter for Defendant Gruenwald on Plaintiff's first two claims.
At core, Plaintiff's allegations rest on his allegation that Dr. Carpenter recommended immediate hip surgery. The record does not support this characterization of Dr. Carpenter's recommendation. Although Plaintiff recalls Dr. Carpenter telling Plaintiff that he needed a hip replacement "as soon as possible" (SAC ¶ 34), there is no evidence in this record that Dr. Carpenter communicated such urgency to Defendant Gruenwald or other ODOC medical personnel. On the contrary, Defendant Gruenwald asked Dr. Carpenter to provide a timeframe for surgery, and Dr. Carpenter did not address timing in his report. He diagnosed Plaintiff's degenerative arthritis, stated Plaintiff's preference for surgery, opined that he could complete such surgery safely despite Plaintiff's increased risk of infection, and recommended that "[t]his should be presented to the treatment committee." (DiGiulio Decl., Att. 1 at 39.) Dr. Carpenter did not identify the need for surgery as urgent.
Dr. Christopher DiGiulio, Acting Medical Director for ODOC Health Services, submitted a declaration in support of Defendants' summary judgment motion. He states that hip replacement "is not a benign surgery, and is associated with a number of severe complications." (DiGiulio Decl. ¶ 37.5.) Moreover, hip replacements have a limited life span, and subsequent surgeries may be required as a patient ages. (Id.) "A conservative approach to hip osteoarthritis in a 44 year old, who remains functional, but complains of difficulty is not unusual in the practice of medicine," and "attempting pain mitigation over 6 months to 1 year is consistent with community standards in the field." (Id.)
Plaintiff's records reflect a developing medical condition. More than a year passed between his first and second complaints to prison medical staff of hip pain. (SAC ¶¶ 17, 21.) In the month after his May 6, 2014, complaint, Plaintiff received diagnostic tests, bunking accommodations, an evaluation by Defendant Gruenwald, and medication. (SAC ¶¶ 22-26.) In June 2014, Defendant Gruenwald provided new pain medication, in response to Plaintiff's feedback about the first prescription's efficacy. (DiGiulio Decl. ¶ 14.) Plaintiff did not request a change in treatment again for over two months, at which time Defendant Gruenwald again altered his medication regimen. (DiGiulio Decl. ¶ 15.) His next contact with medical staff was a month later, and initiated by the staff. (SAC ¶ 30.) Almost one month later, Dr. Carpenter completed his consultation. (SAC ¶ 34.) During this entire timeframe, Plaintiff continued working and completing his daily activities, with requested accommodations. (SAC ¶¶ 31, 39, 41.)
In light of this history, the level of care, observation, and treatment that Plaintiff received, and the lack of a specified timeframe in Dr. Carpenter's surgery recommendation, there is no factual basis to support a finding that Defendant Gruenwald acted with deliberate indifference in November 2014 when she recommended that the TLOC continue on a conservative treatment course of medication and observation instead of recommending surgery. Although Plaintiff would have preferred an earlier surgery date, Plaintiff does not provide any evidence that surgery was medically necessary in November 2014. See Jackson, 90 F.3d at 332 (holding that a difference of medical opinion about treatment is "insufficient, as a matter of law, to establish deliberate indifference"). In fact, the TLOC's denial of Defendant Gruenwald's January 2015 surgery request further undermines Plaintiff's allegation. (See DiGiulio Decl. ¶ 27 ("Because surgery was not yet medically necessary as of January 2015, prior requests for surgery would have been denied as not yet medically necessary.")) Importantly, in February 2015, when Plaintiff's pain complaints increased in frequency and severity, and he reported no relief from pain medication, Defendant Gruenwald promptly recommended, and the TLOC approved, surgery. (SAC ¶¶ 70, 74.)
For these reasons, the district judge should deny Plaintiff's motion for summary judgment as to his first claim for relief, and grant summary judgment in favor of Defendant Gruenwald as to Plaintiff's first and second claims.
In his third claim for relief, Plaintiff alleges that the TLOC members (Defendants Gruenwald, DiGiulio, Shelton, Norton, Beamer, and Lozier) were deliberately indifferent to Plaintiff's medical needs by denying Plaintiff's hip surgery prior to March 2015.
Plaintiff argues that the TLOC members, none of whom are orthopedic specialists, were not qualified to substitute their judgment for Dr. Carpenter's regarding the appropriate course of his treatment. (SAC ¶ 97.) This argument fails for two reasons. First, as detailed above, Dr. Carpenter did not provide prison officials with a recommendation for immediate surgery, and therefore the TLOC's treatment course did not conflict with any recommendation received from Dr. Carpenter. Second, Plaintiff does not offer any evidence to demonstrate that the TLOC's treatment decision violated acceptable medical standards. See Wills v. Diehl, No. 09-CV-01316, 2013 WL 5592957, at *34 (D. Or. Oct. 10, 2013) ("Courts have held expert medical evidence will almost always be required to establish deliberate indifference when cases involve complex medical issues and a plaintiff contests the type of treatment that he received."). Dr. DiGiulio's description of acceptable medical standards in evaluating the need for hip replacements, particularly in younger patients, stands uncontested on this record. (DiGiulio Decl. ¶¶ 4, 37.5); see also Swanson v. Coos Cty., Civ. No. 08-6312-AA, 2009 WL 5149265, at *5 (D. Or. Dec. 22, 2009) (granting the defendants' motion for summary judgment on the plaintiff's medical malpractice claim where the defendant physician submitted expert testimony that the plaintiff's care was consistent with the accepted standard of care in the community and the plaintiff did not offer any rebuttal evidence). Accordingly, the district judge should enter summary judgment in favor of Defendants on Plaintiff's third claim for relief.
For the reasons stated, the district judge should DENY Plaintiff's motion for partial summary judgment (ECF No. 94), and GRANT Defendants' motion for partial summary judgment as to claims one, two, and three of the Second Amended Complaint (ECF No. 125). After the district judge enters a ruling on these Findings and Recommendations, the Court will schedule a telephonic status conference to discuss scheduling issues with respect to Plaintiff's remaining claims.
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (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.
