United States District Court, D. Oregon
Levi, Jesse Merrithew, and Noah Horst, Levi Merrithew Horst
PC, Of Attorneys for Plaintiff.
Lindsey H. Hughes and Jamie Edward Valentine, Keating Jones
Hughes PC, Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon, United States District Judge
Norris Giles (“Plaintiff”) brings this suit
against Defendants Conmed Healthcare Management, Inc.
(“Conmed”) and Dr. Carla Antola (“Dr.
Antola”) (collectively, “Defendants”),
alleging two claims: deliberate indifference to
Plaintiff's serious medical needs in violation of 42
U.S.C. § 1983 (“Section 1983”) and
professional medical negligence. Before the Court is
Defendants' motion for summary judgment against both
claims. For the reasons discussed below, Defendants'
motion is granted in part and denied in part. The Court
grants summary judgment against Plaintiff's Section 1983
claim, but Plaintiff may proceed on his negligence claim.
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).
was incarcerated at the Coos County Jail (the
“Jail”) from February 28, 2013, to March 27,
2013. During his incarceration, Plaintiff was under the
medical care of Dr. Antola and other medical staff also
employed by Conmed. Viewed in the light most favorable to
Plaintiff, the facts are as follws.
Plaintiff first arrived at the jail on February 28, he
believed that he was suffering from food poisoning. ECF 45-1
at 9:15-18. Dr. Antola first examined Plaintiff on March 1.
ECF 41-2 at 1. Plaintiff told Dr. Antola that he had
abdominal pain and nausea, was vomiting, and had experienced
no bowel movements except for blood for the past two days.
ECF 41-1 at 5; ECF 41-2 at 1. In her notes for that
examination, Dr. Antola wrote that Plaintiff suffered from
diabetes, which had been uncontrolled for many years. ECF
41-2 at 1. Dr. Antola made a differential diagnosis of
“gastroparesis versus food poisoning versus bowel
obstruction.” ECF 41-2 at 1. Dr. Antola placed
Plaintiff on diet of clear liquids for three days. ECF 41-2
March 1 and March 7, Plaintiff was housed in the Jail's
general population. See ECF 41-5 at 1-3. On March 5,
Plaintiff sent a health services request, also called a
“kite, ” complaining of “severe stomach
pains” and vomit that smelled like feces. ECF 41-3 at
2-3. Dr. Antola responded to the kite by extending
Plaintiff's liquid diet indefinitely, explaining
“when we treat you for your condition . . . you become
upset and throw your food away. . . . I don't think you
are as sick as you claim to be.” ECF 41-3 at 2. On
March 6, Plaintiff signed a refusal of treatment form,
declining his prescribed liquid and diabetic diets. ECF 41-4
at 1. Plaintiff stated that he was refusing treatment because
his prescribed diet did not give him “enough to
eat.” ECF 41-4 at 1.
March 7, Plaintiff complained of dizziness while eating or
even seeing food. ECF 41-5 at 3. Plaintiff was transferred to
the booking unit at the Jail for medical observation, where
he remained until March 12. ECF 41-5 at 6. On March 8,
Plaintiff had his second visit with Dr. Antola. ECF 41-2 at
5. Plaintiff complained of constipation and dizziness after
eating. ECF 41-2 at 5. Dr. Antola told Plaintiff that his
symptoms were likely due to his high blood sugar levels; Dr.
Antola suggested that Plaintiff stick to his diabetic diet
and remain on medical lockdown until his blood sugar was
below 200. ECF 41-2 at 5. Plaintiff became agitated and
called the medical staff, including Dr. Antola,
“quacks.” ECF 41-2 at 5. Plaintiff signed another
refusal of treatment form, expressly refusing the
“[n]on-insulin diabetic diet” and “blood
glucose checks.” ECF 41-4 at 2. On March 11, Plaintiff
apologized to Nurse Marjory Hausler (“Nurse
Hausler”) for his behavior during his March 8
appointment. ECF 41-2 at 6.
the early morning of March 12, Plaintiff sent a kite
complaining about the kinds and amount of food being sent to
him on his diabetic meal trays. ECF 41-8 at 4-5. Dr. Antola
replied in writing:
Foremost you need to understand this is a jail not a hotel
with room service. Your diabetic diet has been accommodated
to the best of the jail capabilities-you also keep
contradicting yourself regarding the diet-you told us you
“know” they serve the same food on regular and
diabetic trays-now you are saying the opposite-Now you say
you are starving; before you were nauseated. Please keep your
story straight so we can help you better in your medical
41-8 at 4. Later that day of March 12th, Dr. Antola saw
Plaintiff for the third time. In her medical notes for this
examination, Dr. Antola wrote that Plaintiff was not
“constant with his history.” ECF 41-2 at 7.
During her deposition, she explained that the fact that
Plaintiff was “changing his story about his symptoms
might mean that he's exaggerating his symptoms.”
ECF 41-1 at 9. Dr. Antola noted that Plaintiff was
“rude” and “argumentative, ” called
medical staff “quacks, ” and made
“quacking” noises directed at the staff. ECF 41-5
at 6. Dr. Antola advised Plaintiff to continue his regular
blood sugar testing and released Plaintiff back into the
general Jail population, where he remained for the rest of
his time in custody. See ECF 41-1 at 9; ECF 41-5 at
Antola did not personally examine Plaintiff again until March
26, although she continued to oversee his care. See
ECF 45-8 at 28:19-29:13. Between March 12 and March 26,
Plaintiff repeatedly complained to medical and Jail staff
about his prescribed diabetic diet and blood sugar testing.
Plaintiff also continued to complain about his symptoms,
including, stomach pain, nausea, vomiting, constipation, and
March 14, Plaintiff requested to be removed from his diabetic
diet. ECF 41-2 at 8. An Emergency Medical Technician
(“EMT”) then spoke with Plaintiff, who apologized
and said he actually did want to stay on the special diet.
ECF 41-2 at 8. Plaintiff also sent a kite stating, “I
want to say that I am sorry to the whole entire medical staff
for all the mean-foul and evil words that has [sic] come out
of my mouth.” ECF 41-3 at 8.
afternoon of March 15, Nurse Hausler noted that
Plaintiff's blood sugar was in the “target”
range. ECF 41-2 at 9. After being in “the yard, ”
where he had access to commissary foods, Plaintiff complained
to staff of abdominal pain. ECF 41-2 at 9. Nurse Hausler
concluded that when Plaintiff was in the general population
he would complain of various ailments that would then improve
when he was in medical isolation. ECF 41-2 at 9. While
consulting with Dr. Antola about these ...