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Barnes v. Gower

United States District Court, D. Oregon

February 17, 2015


Matthew S. Kirkpatrick, Kenneth R. Davis, II, LANE POWELL, PC, Portland, OR, Attorneys for Plaintiff.

Vanessa A. Nordyke, OREGON DEPARTMENT OF JUSTICE, Salem, OR, Attorney for Defendants.


MARCO A. HERNNDEZ, District Judge.

Plaintiff Christopher Lee Barnes brings this action against Defendant Bridgett Whelan, Medical Services Manager at Two Rivers Correctional Institution (TRCI), under 42 U.S.C. § 1983, alleging inadequate medical treatment in violation of the Eighth Amendment.[1] Plaintiff alleges that Defendant was deliberately indifferent to his serious medical needs because she failed to ensure that he received proper treatment for migraine headaches. Defendant moves for summary judgment. Plaintiff moves to strike supplemental evidence included with Defendant's reply brief. For the reasons that follow, both motions are denied.


Plaintiff was incarcerated at TRCI from May 16, 2012 to November 21, 2012, among other time periods. Plaintiff suffers from "extremely painful" migraine headaches. Barnes Decl. ¶ 5. His migraines are so excruciating that they make him vomit, lose his vision, lose consciousness, lose his temper, and exercise poor judgment, all of which have contributed to attempts to commit suicide. In November of 2011, Plaintiff was prescribed nine doses of Imitrex per month as treatment for his migraines. Plaintiff must take Imitrex as soon as he begins to feel the symptoms of a migraine in order for the drug to be effective.

In June of 2012, Plaintiff began requesting help from medical personnel at TRCI to figure out why he was having such frequent migraines and how he could receive more effective treatment. Plaintiff repeatedly requested an MRI. In addition, he requested help obtaining a medical record from his childhood that he believed would show that he had brain damage.

Plaintiff first requested an MRI at "sick call" on June 11, 2012; he made numerous other requests at subsequent sick calls.[2] Kirkpatrick Decl. Ex. 2, at 27. He made the same request through at least four inmate communications ("kytes") sent to Defendant on August 5, August 20, September 13, and September 23, 2012. Kirkpatrick Decl. Ex. 3, at 3; Ex. 4, at 1; Ex. 5, at 3, 4. In his kytes, Plaintiff complained that he had made the MRI request during sick call but no action had been taken. Defendant delegated the duty to respond to inmate communications to other nurses, who in turn directed Plaintiff to go to sick call. Plaintiff also filed a grievance with prison officials concerning the same issue, which he pursued through an appeal that was ultimately denied. Kirkpatrick Decl. Ex. 3; Ex. 5, at 1; Ex. 5, at 2.

Plaintiff informed a nurse during sick call on September 20, 2012, that he had "frontal lobe brain damage" as a child. Kirkpatrick Decl. Ex. 2, at 34. Plaintiff also alluded to possible brain damage in his kytes, stating that there were juvenile mental health records from the Oregon Youth Authority (OYA) indicating that his then-psychiatrist, Dr. Thiel, believed he might suffer from front temporal lobe brain damage.[3] Kirkpatrick Decl. Ex. 5, at 4, Ex. 8, at 2, 4; Barnes Decl. Ex 1, at 1. It is now clear that the mental health record Plaintiff referred to was a "progress report" from January 10, 1995, when Plaintiff was 12 years old, prepared by his program manager at a specialized foster care program. This progress report reflects that Dr. Thiel believed that "many of [Plaintiff's] sudden outbursts and negative behaviors may be due to frontal lobe brain damage." Barnes Decl. Ex 1, at 2. On October 11, 2012, at sick call, Plaintiff once again requested help from a nurse to obtain his medical records from the OYA, stating that he had been told that he needed a medical staff person to request them. Kirkpatrick Decl. Ex. 2, at 36. The nurse followed up with Defendant, who stated that "if medical wants the information we will request it" but also that Plaintiff's attorney could obtain his medical records at any time. Id . On October 12, 2012, the sick call nurse made a note that she had "reiterate[d]" to Plaintiff that "he can request information from any medical/psychological/dental/optical visit that he has had. And he doesn't need to have a provider request [the information]." Id.

Plaintiff also communicated to Defendant and other medical personnel at TRCI that his treatment plan was not working. He told a nurse at sick call that nine doses of Imitrex per month were insufficient because he was experiencing headaches every other day. In response to his complaint about his dosage of Imitrex, a nurse's progress notes indicate that Plaintiff was "advised to call if he has a migraine and no [I]mitrex is available so that we can see where the issue is because historical evidence does not support insufficient medication." Kirkpatrick Decl. Ex. 2, at 34. In response to his grievance related to the same issue, Nurse Wettlaufer wrote:

In your grievance you state that [Defendant] Mrs. Whelan is not doing her job when someone else answers your communications to her. All Health services staff answers all communications. You are requesting to have an MRI, have your fines paid, and copies of your health care record free, and $800, 000. At this time there is no medical indication for an MRI. You are currently prescribed Imitrex for your headaches. A review of your medication administration record indicates that since July 19, 2012 you have taken only three doses of Imitrex. Hopefully this medication is working for you. If you would like a copy of your heath care records, please send a communication to Mrs. Hawkins and she can help you to get this; however, it is not free. The grievance process does not allow for damages to be assessed. There is a different avenue for this.

Kirkpatrick Decl. Ex. 4, at 3.

On October 3, 2012, in response to Plaintiff's repeated requests for an MRI, Nurse Gruenwald performed a neurological examination of Plaintiff. Although she informed Plaintiff that it was doubtful that an MRI would "yield any info[rmation] that would change" Plaintiff's plan of care, she agreed to forward Plaintiff's MRI request to the Oregon Department of Corrections' Therapeutic Level of Care (TLC) committee. Kirkpatrick Decl. Ex. 2, at 35.

On October 15, 2012, Defendant reviewed Plaintiff's medical records and drafted a letter to Plaintiff on behalf of Dr. Shelton, the Medical Director at TRCI, stating that "Ms. Gruenwald's exam did not indicate an MRI was indicated; however, she is going to present your request to the TLC committee for their recommendation." Kirkpatrick Decl. Ex. 7, at 2. Further, the letter explained:

There is nothing in your health care record reflecting a brain injury or need for medical evaluation of this condition. You recently requested ODOC Health Services assist you in getting your OYA health records. You have been advised that ODOC Health Services has your pertinent medical records. You have been housed within the ODOC nine of the past ten years, these medical records are located at TRCI.

Kirkpatrick Decl. Ex. 7, at 2. On October 16, 2012, the TLC committee rejected Plaintiff's request for an MRI as "not medically necessary at this time[.]" Kirkpatrick Decl. Ex. 9, ...

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