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Millard v. Oregon Department of Corrections

United States District Court, D. Oregon

June 3, 2014

OREGON DEPARTMENT OF CORRECTIONS, a public entity, MICHAEL F. GOWER, Assistant Director, STEVE SHELTON, M.D., Medical Director, CAPTAIN LARRY LYTLE, O.I.C., CAPTAIN JAIME HERRERA, O.I.C., SARGENT DOUGLAS BARE, Correctional Officer, OFFICER SKY MITCHELL, Correctional Officer, SHARON MARIE SMITH, R.N., and STACI ROBERTS, R.N., all in their individual capacities, Defendants.

Peter Curtis Millard, Two Rivers Correctional Institution, Umatilla, OR, pro se.

Ellen F. Rosenblum, Attorney General, Robert E. Sullivanm, Senior Assistant Attorney General, Oregon Department of Justice, Salem, OR, Of Attorneys for Defendants.


MICHAEL H. SIMON, District Judge.

The Eighth Amendment of the U.S. Constitution provides a fundamental and essential protection for the incarcerated. Not every unpleasantry that occurs while a prisoner is incarcerated, however, rises to a violation of that constitutional provision. It is with this principle in mind that the Court evaluates this case. Plaintiff Peter Curtis Millard ("Millard" or "Plaintiff") is an inmate in the custody of the Oregon Department of Corrections ("ODC"). He is housed at the Two Rivers Correctional Institution ("TRCI") in Umatilla, Oregon. In this federal civil rights action brought under 42 U.S.C. § 1983, Millard alleges that Defendants ODC, Assistant Direct Michael F. Gower, Medical Director Steve Shelton, Captain Larry Lytle, Captain Jaime Herrera, Sargent Douglas Bare, Officer Sky Mitchell, Registered Nurse Sharon Smith, and Registered Nurse Staci Roberts (collectively "Defendants") violated Millard's rights under the Eighth and Fourteenth Amendments of the U.S. Constitution and Oregon law. Defendants now move for summary judgment. Dkt. 61. For the reasons that follow, the Court grants Defendants' motion.


A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment, " the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A court must "consider as evidence in [a pro se plaintiff's] opposition to summary judgment all of [the plaintiff's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the plaintiff] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004).


On Saturday, February 5, 2011, between approximately 2:30 p.m. and 3:00 p.m., Millard injured his left thumb during a basketball game. After showering, Millard approached Defendant Mitchell, a supervisor in the unit where Millard is housed at the TRCI, and asked for a bag of ice. The exact words used by Millard and Mitchell during this exchange are contested. Millard explains that Defendant Mitchell asked Millard why he hurt his hand, and Millard explained that he "hurt his hand playing basketball." Mitchell Decl., Dkt. 63 at ¶ 6. Millard alleges that he complained to Mitchell about "the increasing pain and swelling in [Millard's] thumb." Millard Decl., Dkt. 84 at ¶ 5. Millard also states that when Mitchell asked Millard how he continued to play basketball after he injured his thumb, he responded that he "initially didn't suspect the injury to be serious, until the pain and swelling increased." Id. Millard alleges that before Mitchell contacted Health Services, he told Millard that he was "not going to get any sympathy" from Mitchell. Id. at ¶ 10. According to Millard, after Mitchell informed TRCI Health Services of Millard's injury, Mitchell told Millard that "[Millard] was not authorized any ice for [his] thumb" and that he would need to sign up for sick call for the morning of Monday, February 7, 2011. Id. at ¶ 11.

Later in the evening of February 5, 2011, the pain and swelling in Millard's thumb intensified and his thumb began to discolor. Millard contends that Mitchell noticed the increased swelling and notified Health Services of Millard's condition. The nursing staff at Health Services authorized Millard ice for his hand and ibuprofen from the housing unit supply. Mitchell brought Millard a plastic bag for ice and again told Millard that he would need to sign up for sick call on February 7, 2011. Millard's pain continued throughout that night.

On February 6, 2011, Millard approached Defendant Bare regarding Millard's injury. Millard showed his bruised and swollen thumb to Defendant Bare. Defendant Bare stated that he was aware of Millard's injury and that Defendant Bare could not override Health Services' decision not to see Millard. Millard continued to insist that his thumb should be evaluated to see if it was in fact broken, which Millard explained would mean the thumb would need to be immobilized to prevent further injury. Millard informed Defendant Bare that Millard was aware of his right to adequate medical care. Millard contends that Defendant Bare was "bellicose towards [Millard] and threatened, I could have your ass thrown in the hole for extortion for saying that, and if you so much as utter the word lawsuit' again, I'll do just that.'" Millard Decl., Dkt. 84 at ¶ 22. Defendant Bare, after being approached by Millard for a second time, contacted Health Services. Defendant Bare told Millard that Health Services was refusing to see him and that he needed to sign up for sick call.

Millard showed his thumb injury to Officer Carter later in the day on February 6, 2011. Officer Carter, after seeing Millard's "swollen, discolored thumb" called Health Services to get Millard immediate medical attention. Millard Decl., Dkt. 84 at ¶¶ 28-30. Records from Health Services indicate that Health Services nursing staff saw Millard at 3:37 p.m. The examining nurse observed "bruising and edema in the left thumb from the tip of the thumb to the first joint... and some bruising extending into the palm." Shelton Decl., Dkt. 64 at ¶ 5. The consulting medical provider, Defendant Lytle, ordered a splint for Millard's left thumb and ice for 24 hours. Millard was also told to elevate his hand, complete no work for 24 hours, and Defendant Lytle prescribed Vicodin for 24 hours. Health Services staff applied a splint to Millard's thumb and Millard received the prescribed medication. Millard states that Health Services staff chose not to take him to the local hospital for x-rays and a thumb spike and, instead, elected to wait until the next day when an x-ray technician would be available.

On Monday, February 7, 2011, Millard reported to sick call and asked when he would receive an x-ray of his left thumb and if he was going to get more Vicodin. Health Services completed x-rays of Millard's thumb and told Millard it may take a week to receive the radiologist's report. The nurse at Health Services (either Defendant Roberts or Defendant Smith) told Millard that Defendant Lytle wanted to await the x-ray results before prescribing additional Vicodin.

On February 16, 2011, Millard received the Test Results Communication regarding his February 7, 2011 x-ray. The report stated that "[t]here is [a] questionable, nondisplaced fracture involving the base of the distal phalanx. This is seen on the oblique view and represents change from the previous study." Shelton Decl. Attach. 1, Dkt. 64 at 38. The radiologist's impression was: "Questionable nondisplaced fracture of the base of the distal phalanx." Id. Millard's previous x-ray of his left thumb was from April 14, 2010, which showed "no evidence of recent fracture or other significant bon[e] abnormality." Id. at 36. Millard sent an inmate communication to Health Services requesting pain medication and to see a physician. Millard also filed a grievance against Defendants Roberts and Smith alleging that they were deliberately indifferent to a serious medical need and again requested pain medication. Defendant Shelton explained that "[n]o change of treatment was indicated" on February 16, 2011. Shelton Decl., Dkt. 64 at ¶ 6.

On February 18, 2011, Millard reported to sick call regarding pain in his thumb. Millard told the nurse staff that the ibuprofen prescribed was not helping his pain and that he needed something stronger. Millard was scheduled to see a provider on February 22, 2011. The nurse authorized Millard to have ice two times a day for one more week and instructed Millard to elevate his left hand. Id. at ¶ 7. Defendant Shelton explained that "[i]ce is available to inmates on their housing units." Id.

Millard met with Defendant Lytle for the first time on February 22, 2011. Millard contends that after informing Defendant Lytle of Millard's pain, and contrary to the "radiologist's report that indicated a questionable non-displaced fracture, " Defendant Lytle "would not consent to treat [Millard's] pain." Millard Decl., Dkt. 84 at ¶ 42. Defendant Shelton explained that Millard "was seen by a physician who instructed [Millard] to continue to wear the splint for four more weeks and increase his range of motion exercises of the left thumb. He ordered no basketball for two months and ordered follow-up x-rays in four weeks." Shelton Decl., Dkt. 64 at ¶ 8.

On March 2, 2011, Millard reported to sick call explaining that his "rom [range of motion] is limited [in his thumb and] it still hurts." Shelton Decl. Attach. 1, Dkt. 64 at 9. The treating nurse, Defendant Smith, documented that Millard had a splint on his left thumb and an ace wrap around his thumb and part of his hand. Id. Defendant Smith did not document any swelling or bruising. Id. On March 3, 2011, Millard sent a letter to ODC's Health Services' Administrator, Defendant Shelton, notifying him of the deliberate indifference Millard alleged he suffered and requesting that the ODC employees treat his injuries.

Millard reported to sick call on March 9, 2011 asking when his next x-ray would be scheduled and reporting a decreased range of motion in his left thumb. Shelton Decl., Dkt. 64 at ¶ 10. Millard was not wearing a splint at that meeting and told Health Services staff that he could not wear the splint and do his exercises. Id. On March 10, 2011, Health Services administered a second set of x-rays for Millard's thumb injury.

Millard met with Defendant Lytle for a follow-up exam on March 14, 2011. Millard alleges that despite his comments regarding his continued pain and stiffness in his thumb, Defendant Lytle discontinued the splint and ACE wrap and encouraged Millard to increase his range of motion exercises. Millard Decl., Dkt. 84 at ¶ 49. On March 15, 2011, Millard received the second set of x-rays of his left thumb, which stated: "There is a fracture of the base of the distal phalanx that is nondisplaced. This is unchanged in position or alignment when compared to earlier films." Millard Decl. Attach. 7, Dkt. 84-2 at 25.[1]

On March 25, 2011, Housing Services received a call from a housing unit officer reporting that Millard hurt his leg playing basketball.[2] Shelton Decl., Dkt. 64 at ¶ 13. Millard reported to the nurse that Millard "went to push off and felt something rip or tear' in [his] calf" and that he had "never felt like this before something is really wrong." Id.; Shelton Decl. Attach. 1, Dkt. 64 at 11. Millard was ordered to ice and elevate his left calf, take 800 milligrams of ibuprofen as directed, and not to engage in sports for three weeks. Id. at 22. There was no mention at this visit of Millard's thumb injury.

On April 1, 2011, Defendant Shelton responded to Millard's letter alleging deliberate indifference to his serious medical needs by Defendant Shelton's subordinate personnel. Defendant Shelton did not state he was taking "any corrective measures to abate future risks of harm." Millard Decl., Dkt. 84 at ¶ 54. Millard also spoke with Defendant Lytle on April 1, 2011 regarding Millard's claims of deliberate indifference to his medical needs. Defendant Lytle informed Millard that he would not report any of the criminal claims alleged by Millard to the Oregon State Police and that Millard was taking the appropriate steps by filing grievances regarding the incident. ...

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