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McLennan v. Oregon Department of Corrections

United States District Court, D. Oregon

July 22, 2015

KYLE McLENNAN, Plaintiff,

Kyle McLennan, Eastern Oregon Correctional Institution, Pendleton, OR. Plaintiff pro se.

Ellen F. Rosenblum, Attorney General, Vanessa A. Nordyke, Assistant Attorney General, OREGON DEPARTMENT OF JUSTICE, Salem, OR, Of Attorneys for Defendants.


MICHAEL H. SIMON, District Judge.

Plaintiff, Kyle McLennan, proceeding pro se, brings this action against the Oregon Department of Corrections ("ODOC") and individual defendants Doctor Leland Beamer, Registered Nurse and Medical Supervisor Dorothy Wettlaufer, Registered Nurse Jimmi Blanchett, and Registered Nurse Ashley Astorga.[1] Plaintiff alleges violations of his rights under the Eighth Amendment. Before the Court is Defendants' Motion for Summary Judgment on all claims. For the reasons that follow, 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 did not file a response to Defendants' motion for summary judgment. A court may not, however, grant summary judgment by default. See Heinemann v. Satterberg, 731 F.3d 914, 916-17 (9th Cir. 2013). When a party fails to respond to a fact asserted by the movant, a court may:

(1) give [the party] an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). This rule was amended in 2010 to incorporate the "deemed admitted" practice of many courts-where a party fails to respond to an asserted fact, that fact may be "deemed admitted" (considered as undisputed). Heinemann, 731 F.3d at 917. Here, the Court will consider as undisputed the facts asserted by Defendants in their unopposed motion.

Considering a fact as undisputed, however, does not mean that summary judgment automatically may be granted. A court must still determine, considering the facts the court has found undisputed for want of a response, the legal consequences and proper inferences to be drawn from those facts. Id. (quoting Fed.R.Civ.P. 56 Advisory Committee Notes (2010)). Accordingly, the Court considers Defendants' motion on the merits in light of the undisputed facts.


Plaintiff is an inmate who was admitted to the custody of Oregon Department of Corrections ("ODOC") on May 15, 2013. Plaintiff has been housed at Eastern Oregon Correctional Institution since June 26, 2013. Plaintiff's earliest release date is October 7, 2015. Shelton Decl. Dkt. 27, ¶ 3.

Plaintiff filed a complaint in this matter on May 6, 2014, alleging that Defendants (1) acted with deliberate indifference to his medical needs throughout treatment of a corneal ulcer in his right eye, and (2) harassed and retaliated against him when he tried to file a grievance against ODOC. Dkt. 1.

Corneal ulcers are most commonly caused by injury, abrasion, an infection with bacteria, or viruses. Shelton Decl. Dkt. 27, ¶ 6. Corneal ulcers may heal with a white or grey round spot on the cornea that represents a residual scar from the injury; the spots usually clear as time passes. Id. The symptoms for a corneal ulcer are a red eye, eye pain, a feeling that something is inside the eye, tearing, blurry vision, pain when looking at bright lights, and swelling of the eye lids. Id.

When the eye is examined and nothing is initially visible, the health practitioner stains the cornea with Fluorescein in order to make foreign objects, abrasions, or ulcers visible. Id. If upon an examination the cause of the corneal ulcer or abrasion is unknown, the patient may be given antibiotic drops that work against many kinds of bacteria. Id.

When Plaintiff woke up on the morning of November 24, 2013, his right eye was red, hurting, and he felt like something was in it. Id. at ¶ 7. Later that day, Plaintiff discussed his discomfort with Defendant Jimmi Blanchett, a Registered Nurse working at ODOC. Id. Blanchett used Flourescein to stain Plaintiff's eye, and noted that Plaintiff's right eye was red and had an abrasion, but found no foreign objects in it. Id. Blanchett followed ODOC nursing treatment protocol for eye infections or abrasions and (1) gave Plaintiff Tobramycin, antibiotic eye drops, (2) instructed him to use it "three times per day every day for five days, " and (3) advised him not to use his contact lenses until his eye was better.[2] Blanchett noted that Plaintiff verbalized his understanding. Id.

On November 25, 2013, the next day, Plaintiff complained to Defendant Ashley Astorga, another Registered Nurse, that his eye pain had worsened. Id. at ¶ 8. Astorga "noted that [Plaintiff] had redness on the entire sclera, an obvious cornea abrasion, [that] his upper eyelid was swollen, and no foreign body [in the eye]." Id. Astorga also had Plaintiff stay in the infirmary until Doctor Leland Beamer could see him that morning. Id.

When Dr. Beamer saw Plaintiff that morning, he noted that Plaintiff's right eye was inflamed, but could not determine the cause except for Plaintiff's use of contact lenses. Id. He also noted that Plaintiff's right eye was inflamed and had a corneal ulcer. Id. Dr. Beamer prescribed an antibiotic, a pain killer, and eye drops, and instructed Plaintiff on how and when to use the medications. Id. Dr. Beamer also told Plaintiff not to use his contacts for three to four weeks. Id.

On December 13, 2013, Plaintiff complained that he had "hurt/scratched his eye, " and Registered Nurse Johanna McGainey saw him. Id. at ¶ 9. McGainey noted a "grey/clear tiny circle on top of the pupil area, " and scheduled Plaintiff to see the doctor as soon as possible. Id. Dr. Beamer saw Plaintiff again on that same day. Id. He noted that Plaintiff "was still having visual problems and had a central grey spot (leukemoid reaction/scar) where he had his eye ulcer." Id. Dr. Beamer also referred Plaintiff to an ...

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