United States District Court, D. Oregon
Robert Woodroffe, Two Rivers Correctional Institution, 82911 Beach Access Road, Umatilla, OR 97882-9419. Plaintiff pro se.
Jake J. Hogue and Shannon M. Vincent, Oregon Department of Justice, Trial Division, CLS, 1162 Court Street, N.E., Salem, OR 97301-0346. Of Attorneys for Defendants Carnig, Czerniak, Doman, Eastwood, Flores, Geer, Gulick, Real, Reding, Serrano, Shelton, Spang.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Before the Court is Defendants' motion for summary judgment on all remaining claims of Plaintiff Robert Woodroffe ("Plaintiff") against officials of the Oregon Department of Corrections (collectively, in whole or in part, "Defendants") for alleged violations of the First, Eighth, and Fourteenth Amendments. Plaintiff, proceeding pro se, also filed a cross-motion for summary judgment. In Plaintiff's motion, however, he argues that factual disputes exist and demands a jury trial to resolve them. The Court thus denies Plaintiff's motion for summary judgment and construes Plaintiff's motion as opposition to Defendants' motion for summary judgment, in addition to Plaintiff's other filings in opposition. For the reasons discussed below, Defendants' motion is granted.
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).
Plaintiff is incarcerated in the State of Oregon's prison system, which is operated by the Oregon Department of Corrections ("ODOC"). In January 2012, Plaintiff filed this action, alleging federal and state claims against approximately 60 defendants. Only a handful of those claims and defendants remain, either because the Court dismissed or Plaintiff conceded many of them. The claims remaining before the Court, which Plaintiff brings pursuant to 42 U.S.C. § 1983, allege that Defendants violated Plaintiff's First, Eighth, and Fourteenth Amendment rights.
Specifically, Plaintiff's remaining claims allege: (A) Eighth Amendment violations by Steve Shelton, M.D., and Garth Gulick, M.D., relating to their treatment of Plaintiff's knee and coccyx pain and an incident involving blood loss, and by Patricia Carnig, R.N., and Patricia Flores, R.N., relating to an incident involving blood loss; (B) Fourteenth Amendment violations by Inspector General Stan Czerniak and Hearings Officer Frank Serrano, stemming from disciplinary hearings within ODOC; and (C) First Amendment free-speech violations in three respects. The initial First Amendment claim is a facial challenge to the constitutionality of ODOC's prohibited-mail policy, which, in part, bans inmates from receiving freestanding nude or partially nude images in the mail. The second First Amendment claim is an "as-applied" challenge to the regulations, as allegedly enforced by Bill Doman, Steven Spang, and Randy Geer. The final First Amendment claim alleges retaliation by Drs. Shelton and Gulick relating to medical care; by Captain Robert Real and Captain James Eastwood, relating to misconduct reports; and by Mr. Doman and Mr. Spang, relating to the non-delivery of Plaintiff's incoming mail. The Court discusses additional facts as it addresses each claim.
Because Plaintiff proceeds pro se, the Court construes his filings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se party involved in civil litigation, however, is held to the same standards in responding to a motion for summary judgment and "should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); see also Warden v. Robinson, 2014 WL 252308, at *5 (D. Ariz. Jan. 23, 2014) ("A pro se litigant is held to the same standard in responding to a motion for summary judgment as a represented party."). Additionally, "[i]t is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case." Claar v. Burlington N.R.R., 29 F.3d 499, 504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Therefore, where Plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it.
A. Eighth Amendment Claims
Plaintiff brings claims for Eighth Amendment violations alleging inadequate responses by Dr. Shelton, Dr. Gulick, Nurse Carnig, and Nurse Flores to an incident of blood loss. He also brings an Eighth Amendment claim against Dr. Shelton and Dr. Gulick alleging indifferent responses to his purported knee and coccyx pain. Defendants argue that they are entitled to summary judgment on Plaintiff's Eighth Amendment claims because: (1) the claims fail as a matter of law; (2) Defendants are entitled to qualified immunity; and (3) Plaintiff's claims relating to coccyx and knee pain are precluded by a previous judgment. Because the Court finds no genuine issue of disputed fact with respect to all of Plaintiff's Eighth Amendment claims and that Defendants are entitled to judgment as a matter of law, the Court does not address Defendants' immunity and preclusion arguments.
The government has an "obligation to provide medical care to those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference to serious medical needs constitutes unnecessary and wanton infliction of pain, which is proscribed by the Eighth Amendment. Id. at 104. In this context, however, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id. at 106. To state a claim relating to medical care under Section 1983, a prisoner must "allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. Allegations and evidence that a medical professional was negligent in diagnosing or treating a medical condition is insufficient to support a claim of medical mistreatment under the Eighth Amendment. Id.
To establish an Eighth Amendment violation under Section 1983, a prisoner must satisfy "both the objective and subjective components of a two-part test." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). First, the plaintiff must show that the jail official deprived him of the "minimal civilized measure of life's necessities." Id. (citation and quotation marks omitted). Second, he must demonstrate that the jail official "acted with deliberate indifference in doing so." Id. (citation and quotation marks omitted). Under this standard, for example, a medical decision to decline ordering an xray is not a constitutional violation, but is a matter for medical judgment. Estelle, 429 U.S. at 107.
1. Plaintiff's Blood-Loss Incident
During the evening of October 1, 2010, Plaintiff reported to ODOC medical staff that he felt dizzy and that he had lost "several cups" of blood. Upon examination, Plaintiff's vital signs were normal. A few hours later, Plaintiff reported that he had passed out. Shortly after midnight, Nurse Flores escorted Plaintiff to the prison's special-housing clinic. Plaintiff appeared pale and shaky, experienced abdominal pain accompanied by hypoactive bowel sounds, and reported blood coming from his rectum. After Nurse Flores contacted Dr. Gulick, Dr. Gulick admitted Plaintiff to the infirmary for the night because of the reported rectal bleeding and ordered lab work for the morning.
Plaintiff claimed that he passed out in the infirmary and broke his nose in the ensuing fall. Nursing staff observed no blood around Plaintiff's nose and did not notice any difference in its appearance. Nurse Flores measured Plaintiff's vital signs, which were normal, and administered fluids to Plaintiff. The abdominal pain and hypoactive bowel sounds continued for several hours, accompanied by Plaintiff's report of water retention. Blood was found in Plaintiff's underwear and toilet. Dr. Gulick, upon report from the nursing staff, ordered Plaintiff to a local hospital in the morning. An exam at the hospital revealed no evidence of new or old blood in Plaintiff's nose or stomach. A colonoscopy, however, revealed diverticulosis. Plaintiff received two units of blood at the hospital because of his history of fainting and reduced hemoglobin level. Upon returning to the prison, Plaintiff's vital signs and eating, drinking, and voiding were normal.
Plaintiff states that he lost "over half his blood" and that he feared for his life because of the discomfort and bleeding that he experienced. Plaintiff does not identify the basis for his knowledge regarding the amount of blood that he alleges that he lost. Although losing several cups of blood could create a serious medical need, Plaintiff provides no medical evidence regarding the amount of blood that he lost, that his life was actually in danger, or, critically, that Defendants' responses were inadequate. Defendants offer uncontroverted evidence that they monitored Plaintiff's vital signs, considered his bleeding to be a non-emergency, and housed him in the prison infirmary after Dr. Gulick determined that Plaintiff should be transported to the hospital for further evaluation the following morning. Because Defendants provided Plaintiff with medical care that they deemed appropriate under the circumstances and Plaintiff's arguments, at most, are only that Defendants were medically negligent, there is no genuine dispute over whether Defendants were deliberately indifferent to Plaintiff's blood loss.
2. Plaintiff's coccyx and knee pain
Plaintiff asserts that Drs. Gulick and Shelton were deliberately indifferent to Plaintiff's coccyx pain by failing to provide surgery to remove his coccyx, which Plaintiff asserts was recommended by "up to ten" other doctors; that Drs. Gulick and Shelton were indifferent to Plaintiff's knee and coccyx pain by discontinuing a previously prescribed medication (Neurontin) without first examining him; and that Drs. Gulick and Shelton also denied Plaintiff additional medications, including Ultram, Vicodin, and Tramadol, which were possibilities suggested by outside doctors and requested by Plaintiff to treat his pain. The crux of Plaintiff's assertions, as he indicates, is that the medical care that he has received while incarcerated is not the same as the medical care that he would have received if he lived among the general population.
Defendants acknowledge that they did not provide Plaintiff with coccyx removal or surgical intervention for his knee pain. Defendants, however, provide medical records that identify the bases for Defendants' decisions with respect to Plaintiff's coccyx and knee pain. In addition to meeting with ODOC medical providers, Plaintiff met with outside medical providers. Outside doctors identified that Plaintiff's coccyx is displaced, and possibly fractured, but they identified no objective issues with Plaintiff's knee. Although a specialist noted that coccyx removal was a possible treatment for Plaintiff's reported coccyx pain, the specialist did not find evidence of pathology that warranted its removal. Similarly, other outside doctors repeatedly recommended against removal of Plaintiff's coccyx.
Regarding Plaintiff's knee, a series of x-rays revealed no abnormality with his knee other than mild arthritis and degenerative changes resulting from Plaintiff's age and body size. Defendants, therefore, provide uncontroverted evidence that Plaintiff received medical attention for his reported coccyx and knee pain. Plaintiff, however, argues that Defendants' treatment of his coccyx pain was insufficient because Defendants lacked medical expertise in that area. Plaintiff believes that further evaluation by coccyx specialists would have resulted in better treatment of his pain. Plaintiff essentially asserts that Defendants were negligent in refusing additional evaluation and treatment relating to Plaintiff's coccyx pain
As stated earlier, negligent medical decisions do not create violations of the Eighth Amendment. Estelle, 429 U.S. at 107. Thus, even if refusing further evaluation and alternative treatment of Plaintiff's coccyx was negligent, Defendants' decisions were not in violation of the Eighth Amendment. The fact that Plaintiff might have been able to pursue removal of his coccyx if he was not incarcerated does not create a factual question over the need for coccyx removal or deliberate indifference to this alleged need. Any different medical opinion that exists regarding treatment of Plaintiff's coccyx and knee pain is a difference in medical judgment, not a constitutional violation. Id. Additionally, because there is no evidence of a medical need to remove Plaintiff's coccyx or a need for surgical treatment of Plaintiff's knee, there is no genuine dispute of material fact that suggests that Defendants were deliberately indifferent to Plaintiff's request for further medical treatment of these issues.
Plaintiff also asserts that Defendants were indifferent to his pain by failing to provide him with requested medications, including Neurontin, Tramadol, Ultram, and Vicodin, to alleviate his chronic pain. Defendants acknowledge that they did not provide Plaintiff with the pain medications that, at times, had been prescribed to Plaintiff by other doctors. Although Plaintiff presents evidence that other doctors recommended at least some of these medications, the evidence also indicates that Drs. Gulick and Shelton declined to provide them to Plaintiff because the medications were indicated for short-term rather than chronic pain. Moreover, the uncontroverted evidence is that Defendants provided or allowed Plaintiff treatment and medication to address his pain, including a sacrococcygeal joint injection; Tylenol and ibuprofen; an extra mattress; reassignment to a lower bunk bed; and a donut pillow.
"Prison officials have broad discretion to determine medical care and an inmate is not entitled to the treatment he wants." Jackson v. Multnomah Cnty., 2013 WL 428456, at *6 (D. Or. Feb. 4, 2013) (citing Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970)). Moreover, the "failure to administer narcotic pain medication in such circumstances... does not rise to the level of a constitutional infringement-[Plaintiff] was provided with non-narcotic pain medications, and narcotics in these circumstances were not a life necessity." Jackson, 2013 WL 428456, at *6; see also Fields v. Roberts, 2010 WL 1407679, at *4 (E.D. Cal. April 7, 2010) (refusing to prescribe narcotic pain medication even when an outside doctor recommended it is a difference in medical opinion on the proper course of treatment and is not a basis for an Eighth Amendment claim). Put simply, Plaintiff is not entitled to the medication he desires. The medication Plaintiff requested to treat his coccyx and knee pain was not a life necessity, as indicated by Plaintiff's medical record. Rather, Defendants' substitution of one medication for another constituted a difference in medical opinion by doctors familiar with Plaintiff's medical history. This does not give rise to an Eighth Amendment violation. Additionally, the extensive notes regarding Plaintiff's treatment, including Defendants' consideration of Plaintiff's ...