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Nelson v. Oregon Department of Corrections

United States District Court, D. Oregon

January 12, 2018



          Michael McShane, United States District Judge.

         Plaintiff, a former inmate housed by the Oregon Department of Corrections (ODOC), filed suit pursuant to 42 U.S.C. § 1983 and alleged a claim of deliberate indifference to his serious medical needs arising from his medical treatment after a hip replacement surgery. Defendants now move for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth below, defendants' motion is granted and this case is dismissed.


         Plaintiff is a former inmate who was incarcerated at Columbia River Correctional Institution (CRCI) in Portland, Oregon, and the Oregon State Penitentiary (OSP) in Salem, Oregon during the time period relevant to his claims.

         On March 23, 2015, Dr. Robert Zirschky, a physician at Willamette Surgery Center, performed hip replacement surgery on plaintiff and provided aftercare instructions that included physical therapy after surgery. DiGiulio Decl. Att. 1 at 47 (ECF No. 33); Pl.'s Response (ECF No. 40) Ex. 1. Plaintiff was transferred to OSP after his surgery. There, he was prescribed a pain medication, Oxycodone, with one tablet to be taken every four hours for five days. DiGiulio Decl. Att. 1 at 22.

         On March 26, 2015, plaintiff was observed walking with the assistance of a cane and going to the recreation yard. The next day, plaintiff was observed walking throughout the ward. Id. Att. 1 at 44-45. Dr. Ole Hansen prescribed four more days of Oxycodone. Id. Att. 1 at 22.

         On March 28, 2015, plaintiff was noted to have full range of motion in his hip. Id. Att. 1 at 44. On March 29, 2015, plaintiff requested a reduction in his pain medication dosage and an increase in its frequency. Id. Att. 1 at 43.

         On March 30, 2015, Dr. Degner discontinued plaintiff's Oxycodone prescription and replaced it with a prescription for Tramadol, with one to two tablets taken three times a day for three days, and then one tablet taken daily for three more days. DiGiulio Decl. Att. 1 at 21. The next day, Nurse Henkelman noted that plaintiff was ambulatory and encouraged him to increase his activity. Id. Att. 1 at 43.

         On April 1, 2015, plaintiff had an x-ray and follow-up appointment with Dr. Becker, an orthopedist, who noted that plaintiff's gait was “excellent without external support” and that plaintiff's hip replacement was successful with “no sign of complication.” Id. Att. 1 at 42. Dr. Becker recommended that plaintiff be transferred back to CRCI with a low bunk for three months, remain medically idle for two weeks, perform only light work for three months, and perform the physical therapy exercises that had been shown to him. Id.

         On April 4, 5, and 6, 2015, plaintiff requested and received dosages of Tylenol. Id. Att. 1 at 40. On April 10, 2015, plaintiff reported that he was experiencing pain since the expiration of his Tramadol prescription, and he was seen walking with a limp and the assistance of a cane. Id. Att. 1 at 37. Dr. Glenn Greeder prescribed Tramadol for five additional days to be taken as needed. DiGiulio Decl. Att. 1 at 20.

         On April 15, 2015, plaintiff again requested a new prescription for Tramadol. Dr. Greeder denied the request and discussed ODOC's policy regarding chronic narcotic use. Id. Att. 1 at 20, 37 Dr. Greeder informed plaintiff that he might experience pain from his surgery but that his condition did not warrant narcotics. Id.

         On April 21, 2015, Dr. Thomas Bristol examined plaintiff and noted he was walking with an even gait and could get up and down from the exam table without difficulty. Id. Att. 1 at 38. Plaintiff reported continuing low back pain and asked for a renewal of his Tramadol prescription. Instead, Dr. Bristol ordered x-rays and a trial prescription for Mobic. Id. Att. 1 at 21, 38.

         On April 24, 2015, plaintiff received x-rays on his lumbar spine. They showed “little degenerative change” and a potential pars fracture. DiGiulio Decl. Att. 1 at 12.

         On April 26, 2015, plaintiff complained that the Mobic was not working and he could not sleep through the night without pain. Id. Att. 1 at 36. Plaintiff asked that he be allowed to participate in yoga and walking classes. Id. Dr. Bristol indicated that he had no objection to ...

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