United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Jo Kinley (“Kinley”) filed a Complaint against
Dr. Robert Snider, Mary Raines, and John/Jane Does 1-10
(collectively “Defendants”), alleging a claim
under 42 U.S.C. § 1983 for a violation of
Kinley's Eighth Amendment right to be free of cruel and
unusual punishment arising from Defendants' alleged
failure to provide adequate medical care. (ECF No.
1.) Defendants filed a Motion for Summary Judgment
(ECF No. 44), seeking entry of judgment on
Kinley's § 1983 claim. For the reasons set
forth below, the Court GRANTS Defendants' Motion for
Summary Judgment and dismisses Kinley's Complaint.
was in the custody of the Oregon Department of Corrections
(“ODOC”) from June 23, 2010 until her release on
July 21, 2016. (Robert W. Snider Decl. Attach. 1, Aug.
26, 2015.) At the time ODOC took custody of Kinley, she
was suffering from pre-existing spinal injuries. In 1994 and
1998, Kinley underwent fusion surgeries following a car
accident and a domestic violence incident, respectively.
(Michelle Burrows Decl. Ex. 43 at 4, Jan. 30, 2017.)
While Kinley reported good results following the 1994 back
surgery, in 2008 she became “progressively
worse.” (Burrows Decl. Ex. 43 at 4 (“For
the past one year, the pain has become more
2010, when Kinley entered the Coffee Creek Correctional
Facility (“CCCF”), Dr. Snider performed an intake
examination and medical screening of Kinley. (Snider
Decl. ¶ 6.) During her intake exam, Kinley reported
“chronic neck pain and a history of fusion surgeries of
the cervical spine at ¶ 3-6 in 1994 and 1999 due to a
ruptured disk as a result of a motor vehicle accident; a left
ankle open reduction and internal fixation with steel plate .
. . in 2001; and right shoulder and back tumor surgical
repair, date unknown.” (Snider Decl. ¶
6.) Dr. Snider was aware of Kinley's pre-existing
spinal injuries. (Burrows Decl. Ex. 39 (Robert W. Snider
Dep. 48:2-49:24 (acknowledging that he reviewed
Kinley's medical records), July 22, 2015 (hereinafter
accordance with the practice at CCCF, Kinley was assigned to
work in the kitchen for six months upon her arrival at the
prison. (Burrows Decl. Ex. 41 (Stacey Jo Kinley Dep.
47:7-10 (“[A]nybody that gets here from a new - or
just coming into the facility, is required to work in the
kitchen for six months before you can look for another
job.”), July 22, 2015 (hereinafter “Kinley
Dep.”).) In response to her complaints about neck pain
while performing her kitchen duties, Dr. Snider placed Kinley
on a lifting restriction of no more than twenty pounds for
four months, beginning August 3, 2010. (Snider Decl.
¶ 11.) However, Dr. Snider declined, as
unnecessary, Kinley's request for a shorter work shift.
(Snider Decl. ¶ 11.)
August 23, 2010, Kinley fell in the kitchen during her work
shift. (Snider Decl. ¶ 12; Kinley Dep.
50:8-51:8.) Immediately after her fall, Kinley told her
supervisor that she was “not okay and I need to go to
medical.” (Kinley Dep. 54:4-12.) Kinley
reported to the nursing staff at CCCF that she fell in the
kitchen and hurt her back. (Snider Decl. ¶ 12.)
Medical staff placed Kinley “on a no work status until
Thursday, August 26, 2010, when she could be seen by a
provider.” (Snider Decl. ¶ 12.) On August
26, 2010, at Kinley's request, the no work order and the
lifting restrictions were discontinued. (Snider Decl.
¶ 13, Attach. 2 at 115.) However, on the
same day, Dr. Kinley extended Kinley's Neurontin
prescription and authorized an additional pillow and towel
for six months. (Snider Decl. Attach. 2 at 115.)
2011, Kinley complained of pain radiating through her right
side and numbness in her right arm. (Kinley Dep.
56:11-19.) Kinley alleges that despite multiple earlier
complaints of pain and discomfort, it was not until she
presented with pain and numbness on her right side,
i.e., a “new injury, ” that ODOC ordered
an x-ray. (Kinley Dep. 58:10-59:12.) With regard to
her prior complaints of pain, on July 29, 2010, Kinley had
reported to medical staff that she “worked in the
kitchen yesterday when I got done my neck hurt so bad I
couldn't stand it. I've had # surgeries on my neck.
I've been disabled x 10 years you should have all that. I
shouldn't be working anyway.” (Burrows Decl.
Ex. 12.) The Progress Notes from that visit include the
entry: “Provider APPT MADE.” (Burrows Decl.
Ex. 12.) The medical records between August 2010 and May
2011 include a number of entries regarding Kinley seeking
treatment for pain. (Burrows Decl. Ex. 13 (in August
2010, Kinley complains of a “sore right
shoulder”); Ex. 14 (in August 2010, Kinley
seeks treatment for “chronic neck pain”); Ex.
15 (in September 2010, Kinley reports that her
“butt cheek hurts down to calf”); Ex. 16
(in August 2010, Kinley complains of “frequent
numbness” in her right hand and “sometimes”
numbness in her right shoulder); Ex. 17 (in
September 2010, Kinley seeks treatment for chronic muscle
tightness and pain); Ex. 18 (in October 2010, Kinley
states that she “fell in kitchen my hips getting worse
& worse. They have to do something. I guess I'm just
going to have to contact my lawyer.”); Ex. 19
(in November 2010, Kinley requests chiropractic treatment);
Ex. 21 (in April 2011, Kinley seeks treatment for
“chronic neck & back pain”); Ex. 22
(in May 2011, Kinley reports that she has “been losing
strength in my hands. Sometimes I have numbness from my neck
down my hand. There's no pain.”).)
23, 2011, Kinley underwent a cervical spine x-ray that showed
evidence of degenerative disc disease:
[Q]uite severe degenerative disc disease involving
intervertebral disc spaces from C3 to C6. The bodies of C5-6
and 7 have been surgically fused. IMPRESSION: Anterior
subluxation of C3 is most likely due to degenerative changes
involving posterior facet joints. There is degenerative disc
disease from C3 to C5. There has been a surgical fusion from
C5 to C7.
(Snider Decl. Attach. 2 at 163.) The following
month, in June 2011, Dr. Snider referred Kinley to ODOC's
orthopedic surgeon, Dr. Jerry Becker, for an evaluation of
Kinley's neck pain. (Burrows Decl. Ex. 27.)
Becker evaluated Kinley for her cervical spine complaints. In
addition to performing a clinical examination, Dr. Becker
reviewed Kinley's x-ray. Dr. Becker diagnosed Kinley with
“C5-6, C6-7 fusion with multi-level degenerative disc
disease and some subluxation of C3-4.” (Defs. Mot.
Summ. J. Ex. 3 (Jerry Becker Dep. 25:13-15, Jan. 21, 2016
(hereinafter “Becker Dep.”).) Additionally,
Dr. Becker provided a “second diagnosis” to
“rule out C7-T1 nerve root compromise on the right
side.” (Becker Dep. 25:16-17.) Dr. Becker
recommended that Kinley undergo a cervical magnetic resonance
imaging (“MRI”), “fairly soon.”
(Becker Dep. 26:6-7.)
August 2, 2011, Kinley received an MRI. (Snider Decl.
Attach. 2 at 165.) Dr. Becker reviewed the MRI report
and concluded that “the findings are long-term,
multi-year, they are basically a combination of trauma and
degenerative disc disease, aging issues.” (Becker
Dep. 31:5-8.) Dr. Becker noted that Kinley had not
experienced a “fracture or dislocation” and the
“spurs” were a result of long-term formation, not
a recent trauma. (Becker Dep. 31:10-15.) It was Dr.
Becker's opinion that from an “orthopedic
surgeon's standpoint there was “no indication . . .
for surgery.” (Becker Dep. 44:4-7.)
following month, a neurosurgeon, Dr. Magdalene Banasiak,
evaluated Kinley for cervical spine surgery. (Burrows
Decl. Exs. 31, 32.) Dr. Banasiak examined
Kinley and reviewed the same x-ray and MRI that Dr. Becker
considered. Dr. Banasiak recommended Kinley have an
“EMG and nerve conduction study of the right upper
extremity to rule out ulnar neuropathy.” (Burrows
Decl. Ex. 32 at 2.) Contrary to Dr. Becker's view,
Dr. Banasiak recommended that Kinley “undergo anterior
cervical discectomy and fusion at ¶ 4-5 and C3-4 for
decompression of the spinal canal, bilateral nerve roots
causing radiculopathy, and correction of the progressive
kyphosis.” (Burrows Decl. Ex. 32 at 2.) On
April 10, 2012, Dr. Brian Ragel performed the surgery
recommended by Dr. Banasiak.
judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a). On a motion
for summary judgment, the court must view the facts in the
light most favorable to the non-moving party, and all
reasonable inferences must be drawn in favor of that party.
Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891
(9th Cir. 2005). The court does not assess the credibility of
witnesses, weigh evidence, or determine the truth of matters
in dispute. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). “Where 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.'” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).