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McKenzie v. Jorizzo

United States District Court, District of Oregon, Portland Division

January 6, 2015



Ann Aiken, United States District Judge.

Plaintiff Gustavo McKenzie ("Plaintiff"), a California prisoner, brings this 42 U.S.C. § 1983 action against Defendants Paul Jorizzo ("Jorizzo"), M.D., and Medford Medical Eye Center ("MMEC") (collectively, "Defendants"), alleging an Eighth Amendment claim for deliberate indifference to serious medical needs. Pursuant to Federal Rule of Civil Procedure ("Rule") 56(c), defendants move for summary judgment on Plaintiff's Eighth Amendment claim. For the reasons set forth below, Defendants' motion (Dkt. 41) for summary judgment is granted and this action is dismissed with prejudice.


"On a motion for summary judgment, 'facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citation omitted). As the Supreme Court has emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). When "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." Id. (internal quotation marks omitted).

"By its very terms, [the Rule 56(c)] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in the original). "When opposing parties tell two different stories, one of which is blatantly contradicted by the [summary judgment] record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380 (emphasis added).


Plaintiff received medical treatment by Jorizzo, "a medical doctor licensed by the State of Oregon practicing in the specialty of ophthalmology at the [MMEC]."[1] (Second Am. Compl. at 4A-1; Answer ¶ 1; McKenzie Decl. Ex. B at 1-2.) Plaintiff suffers from "primary open-angle glaucoma, " a progressive disease where eye pressures affect the optic nerve. (Jorizzo Decl. ¶ 3.) Prior to being evaluated by Jorizzo on December 13, 2012, Plaintiff "suffered profound visual loss in his right eye well beyond legal blindness." (Jorizzo Decl. ¶ 4.) Plaintiff was referred to Jorizzo by the Department of Corrections and Rehabilitation, Pelican Bay State Prison, "for an urgent/emergent glaucoma surgery" because his intraocular pressures remained consistently high despite the administration of "maximum medical therapy" at the prison. (Jorizzo Decl. ¶¶ 4-5.) Jorizzo's initial examination of Plaintiff s right eye revealed an intraocular pressure of forty-five and visual acuity tests showed only "hand movement vision." (Jorizzo Decl. ¶ 6.)

Following an informed consent discussion with Jorizzo, it was decided that Plaintiff would immediately undergo a surgical procedure known as a "trabeculectomy, " in order to allow fluid to escape from the eye and reduce intraocular pressures. (Jorrizo Decl. ¶¶ 6-7.) Jorizzo's chart notes from the day of the December 13, 2012 surgery indicate the following:

It was explained to the patient that [his intraocular pressure] is suboptimally controlled, [and] further treatment is needed. Trabeculectomy surgery discussed in detail with the patient, patient had the opportunity to ask questions, and was offered further, more detailed explanation of procedure. [Visual acuity] is limited at this time and it may get worse and may not improve.
It was also explained to the patient that in some cases, Fluorouracil injections may be necessary during the post[-]op[erative] period to ensure that the fluid in the eye is able to drain properly, and to optimize the final outcome of surgery. . . . Explained that [visual acuity] will be blurry for up to [three] months as the eye heals.

(Second Am. Compl. Ex. Bl at 3-4) (emphasis added).

At a post-operative visit on December 14, 2012, Plaintiff still had hand movement vision in his right eye and Jorizzo concluded that the surgery was successful since Plaintiff s intraocular pressures were significantly reduced. (McKenzie Decl. Ex. B at 3; Jorizzo Decl. ¶ 8.) Jorizzo's December 14, 2012 chart notes indicate, among other things, that Plaintiff needed to use an eye shield while sleeping; he was prescribed new eye drops for his right eye (Ocuflox, Durezol and Atropine); he was instructed to stop all "glaucoma" eye drops in his right eye (e.g., oculus dexter or "OD") but continue in the left eye (e.g., oculus sinister or "OS"); that his intraocular pressure was "very low" and his right eye was soft; that he needed to limit activity with no lifting, bending or straining; and that he would follow-up with "Dr. Lafever, " an optometrist at Pelican Bay State Prison, who could refer him to Jorizzo "as needed." (McKenzie Decl. Ex. B at 4, Ex. D at 1; Second Am. Compl. at 4A-6, Ex. Bl at 5-7.)

Plaintiff was seen for a follow-up visit with Adam Mpimsnwa ("Mpimsnwa"), M.D., at Pelican Bay State Prison on December 21, 2012. (McKenzie Decl. Ex. E at 1.) Plaintiff reported that "the pressure in [his right] eye [wa] s fine" and "that he had been seeing better after surgery, but yesterday he noticed his vision was worse." (McKenzie Decl. Ex. E at 1.) Mpimsnwa's chart notes indicate that an appointment with Dr. Lafever was going to be rescheduled (i.e., since Plaintiff refused a prior follow-up with Dr. Lafever after apparently being kept waiting in the rain) and that Mpimsnwa spoke with Jorizzo after the examination. (McKenzie Decl. Ex. E at 1.) Jorizzo informed Mpimsnwa "that he expected visual acuity to be worse after surgery for several weeks, " that a sudden decrease in vision could be due to a small hemorrhage brought on by overactivity, and that Dr. Lafever "could and should check eye pressure at her first opportunity." (McKenzie Decl. Ex. E at 1.)

On January 9, 2013, Dr. LaFever examined Plaintiff and determined that the intraocular pressure in his right eye was fifty-four. (Second Am. Compl. at 4A-8.) Instead of "wait[ing] around, " Plaintiff immediately returned to his cell and inserted glaucoma eye drops in his right eye to reduce the intraocular pressure. (Second Am. Compl. at 4A-8.) Plaintiff also stopped taking two of the three eye drops prescribed by Jorrizo- Durezol and Atropine. (McKenzie Decl. Ex. E at 2.) The medical staff at Pelican Bay State Prison documented the fact that Plaintiff refused to use his eye medications in the manner prescribed. (McKenzie Decl. Ex. E at 2.) Six days later, on January 15, 2013, Dr. LaFever examined Plaintiff and determined that the intraocular pressure in his right eye was thirty-four, which Plaintiff ...

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