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Fagundes v. Digiulio

United States District Court, D. Oregon, Portland Division

December 3, 2014

DR. CHRIS DIGIULIO, and MS. CAZIER, Defendants.[1]

Dominic Fagundes Grand Ronde, OR Pro Se Plaintiff

Robert E. Sullivan Oregon Department of Justice Trial Division Salem, OR Attorney for Defendants.


DENNIS J. HUBEL, Magistrate Judge.

Plaintiff Dominic Fagundes ("Plaintiff") brings this 42 U.S.C. § 1983 action against Defendants Chris Digiulio ("Digiulio") and Ellen Cazier ("Cazier") (collectively, "Defendants"), a physician and nurse at Deer Ridge Correctional Institution ("DRCI"), respectively, alleging an Eighth Amendment claim based on inadequate prison medical treatment. Specifically, Plaintiff claims that Defendants exhibited deliberate indifference to his serious medical needs by confiscating his wheelchair. As explained further below, Plaintiff has not presented evidence that raises a genuine issue of fact suggesting Defendants' response to Plaintiff's medical needs was deliberately indifferent. Accordingly, Defendants' motion (Docket No. 49) for summary judgment is granted and this action is dismissed with prejudice.


In December 2008, Plaintiff was involved in a motor vehicle accident and sustained numerous injuries, including fractures of both legs and his pelvis necessitating open reduction and internal fixation ("ORIF") surgery. (Digiulio Decl. Attach. 2 at 4-5, 92, 94-95, 248.) Over a year and a half later, on July 14, 2010, Plaintiff was transferred to the Coffee Creek Correctional Facility ("CCCF") from the Polk County Jail, where had he been imprisoned since April 2010. (Digiulio Decl. ¶ 3, Attach. 2 at 382.) "A cautionary note on [Plaintiff]'s problem list upon transfer from county jail to the [CCCF] Intake Center indicate[d] he received methadone while at [the] county jail and [that he] is prone to seek more and more methadone."[2] (Digiulio Decl. ¶ 7, Attach. 2 at 1.)

Immediately upon his arrival at the CCCF on July 14, 2010, Plaintiff reported mobility issues, chronic pain and an inguinal hernia, and his treating physician "ordered restrictions of low bunk, no stairs, and the use of a wheelchair for one year." (Digiulio Decl. ¶¶ 6-7, Attach. 2 at 50.) About two months later, on September 3, 2010, Plaintiff was transferred to DRCI in Madras, Oregon. (Digiulio Decl. ¶ 3.) Plaintiff submitted an inmate communication form that same day, stating: "I have... approval for [the] Shutter Creek [Alternative Incarceration Program or] AIP [p]roviding I get your approval as its [sic] not wheelchair friendly, [and] I can walk on a cane." (Digiulio Decl. Attach. 2 at 382.) The medical department at DRCI received Plaintiff's inmate communication form or "kyte" on or before September 7, 2010, when it made a note in Plaintiff's medical file. (Digiulio Decl. Attach. 2 at 10.)

The next day, on September 8, 2010, the chief medical officer at DRCI, Digiulio, examined Plaintiff based on reports of chronic pain. (Digiulio Decl. ¶¶ 1, 9.) According to Digiulio, the

examination revealed that [Plaintiff's] vital signs were stable, his lower back contained a surgical scar in a vertical fashion over the lumber region and he had a horseshoe-shaped scar over his left hip. There were a few scars along his left lower extremity. He had muscle atrophy in the left lower calf and scarring over the anterior surface of the shin. The quadriceps musculature and hamstring were intact. The left leg full range of motion was asymmetrical compared to the right side hip and knee and was neurovascularly intact. (Digiulio Decl. ¶ 10.) Digiulio's "assessment was that [Plaintiff] was given morphine and Vicodin at the CCCF Intake Center with very little in terms of objective findings or history documentation, " and "his pain management regimen between the time of his accident in 2008 and his incarceration [wa]s sketchy at best." (Digiulio Decl. ¶¶ 11-12, Attach. 2 at 10.) Digiulio thus "recommended a plan of care to discontinue the wheelchair [in order to improve Plaintiff's mobility by walking and using a cane], continue [Plaintiff] on Naprosyn, increase Elavil to 75 m[illigrams] and obtain old [medical] records."[3] (Digiulio Decl. ¶¶ 12, 14.)

Digiulio also discussed the need to discontinue the use of a wheelchair with Plaintiff during their September 8, 2010 consultation, and Digiulio's treatment notes include a reference to "DC wheelchair." (Digiulio Decl. ¶ 14, Attach. 2 at 10; Cazier Decl. ¶¶ 7, 11.) Digiulio, however, concedes that he did not write "an order discontinuing the wheelchair" until October 13, 2010. (Digiulio Decl. ¶ 15, Attach. 2 at 52.) At that time, Plaintiff "was able to walk with the aid of a cane [which was already in his possession] and [he] had left the wheelchair unattended on two or more occasions creating a security concern." (Digiulio ¶ 15, Attach. 2 at 12-13; see also Cazier Decl. ¶¶ 8-9.) Cazier confiscated Plaintiff's wheelchair on the same day Digiulio issued his written order, and two days later, on October 15, 2010, Digiulio wrote "an order authorizing the use of a cane for three months."[4] (Digiulio Decl. ¶ 16, Attach. 2 at 12, 369; Cazier Decl. ¶¶ 13-14.)

On October 25, 2010, Plaintiff "was seen by nursing staff for medication and requested his wheelchair be returned. He was instructed to sign up for sick call but did not follow up with this request." (Digiulio Decl. ¶ 17, Attach. 2 at 13.) A little over a month later, on December 4, 2010, Plaintiff informed a registered nurse at DRCI that he "want[ed] clearance to do stairs [because he] want[ed] to go to [Shutter Creek] AIP." (Digiulio Decl. Attach. 2 at 14.) Then on December 29, 2010, Cazier sent Plaintiff an inmate communication response explaining that his stair restriction expired in October and that "[t]he only notations on [his] Health Statute [we]re for lower bunk and a cane." (Digiulio Decl. Attach. 2 at 367.)

On February 2, 2011, Plaintiff followed up with the medical staff regarding his inguinal hernia. (Digiulio Decl. Attach. 2 at 14.) That same day, Cazier sent Plaintiff an inmate communication response stating: "[Y]our low-bunk status and use of the cane ha[d] be[en] re-ordered for [one] year. You will also be scheduled for a follow-up appointment with the [d]octor regarding your hernia."[5] (Digiulio Decl. Attach. 2 at 363.) Six days later, on February 8, 2011, Digiulio wrote an order authorizing Plaintiff to perform "light duty work for one year with no lifting over twenty pounds and no hurrying required." (Digiulio Decl. ¶ 20.)

Nearly two months later, on March 30, 2011, Plaintiff was seen by Rodney Buzzas ("Buzzas"), M.D., regarding his hernia and elected to have it surgically repaired. (Digiulio Decl. Attach. 2 at 231, 235.) Notably, Plaintiff denied any painful or stiff joints, muscle cramps, or back pain during his consultation with Buzzas. (Digiulio Decl. Attach. 2 at 236.) On April 10, 2011, Plaintiff sent an inmate communication form to the medical staff at DRCI indicating that his pain medication was no longer sufficient and that he "continue[d] to have exc[r]uciating pain in [his] legs [and] ankles." (Digiulio Decl. Attach. 2 at 360.) Plaintiff was told to sign up for a "sick call, " but it does not appear that he did so. ( See Digiulio Decl. Attach. 2 at 18, 360.)

On May 6, 2011, Plaintiff's hernia surgery was performed by Buzzas and "[t]here were no identifiable complications." (Digiulio Decl. Attach. 2 at 240.) About three months later, on August 12, 2011, Plaintiff continued to complain about the ineffectiveness of his pain medication and that his wheelchair had been confiscated. (Digiulio Decl. Attach. 2 at 20.) The medical staff at DRCI took Plaintiff's leg measurements three days later, on August 15, 2011, which showed a one-inch discrepancy between Plaintiff's left and right leg. (Digiulio Decl. Attach. 2 at 20.)

On September 9, 2011, Plaintiff sent a kyte to the medical staff asking whether Digiulio had ordered a medical shoe and heel lift for his right leg. (Digiulio Decl. Attach. 2 at 351.) Plaintiff reported that he had been using a cane and performing "some exercise." (Digiulio Decl. Attach. 2 at 351.) Four days later, on September 13, 2011, Plaintiff sent a kyte to the medical staff asking to cancel the weekly weight sessions ordered by his physician because he had only lost three pounds and because he thought he might slip and fall once it became icy outside. (Digiulio Decl. Attach. 2 at 350.) Plaintiff was informed that he would have to sign a refusal of treatment in order to cancel his workout sessions. (Digiulio Decl. Attach. 2 at 350.)

On February 15 and February 27, 2012, Plaintiff reported chronic pain in his legs that was exacerbated by the winter conditions. (Digiulio Decl. Attach. 2 at 23.) Plaintiff's complaints continued throughout the coming months and were often times accompanied by requests to alter his pain medications. (Digiulio Decl. Attach. 2 at 23-25, 337.) In late May 2012, Plaintiff received orthotics and a leg brace from Digiulio. (Digiulio Decl. Attach. 2 at 25, 334.) The ...

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