United States District Court, D. Oregon
G. Passannante, Broer & Passannante, PS. Of Attorneys for
F. Rosenblum, Attorney General, Nathaniel Aggrey and Vanessa
A. Nordyke, Assistant Attorneys General, of Attorneys for
Timothy J. Helfrich, Yturri Rose, LLP, Of Attorneys for
Defendant Dr. Kenneth Little.
OPINION AND ORDER
Michael H. Simon, District Judge.
Richard Anthony Jenkins, a prisoner incarcerated at Snake
River Correctional Institution (“SRCI”), brings
this civil rights action pursuant to 42 U.S.C. § 1983
alleging that defendants Steve Shelton, Aimee Hughes, Ashley
Clements, Garth Gulick, and James Taylor (the “State
Defendants”) acted with deliberate indifference towards
Mr. Jenkins' medical needs in violation of the Eighth
Amendment. Dr. Kenneth Little, a physician in Boise, Idaho,
is also named as a defendant. In its previous opinion, the
Court granted partial summary judgment dismissing several
named state defendants against whom Mr. Jenkins failed to
exhaust administrative remedies. EFC 95. The Court also
granted summary judgement to the State Defendants on whether
their refusal to refer Mr. Jenkins to an independent
specialist amounted to deliberate indifference, finding it
did not. Id.
the Court now is what remains of the State Defendants'
Motion for Summary Judgment and Dr. Little's Motion to
Dismiss for lack of personal jurisdiction. The Court deferred
ruling on these matters pending the appointment of counsel
for Mr. Jenkins, limited discovery, and supplemental
briefing. Id. For summary judgment, the Court now
addresses whether the State Defendants violated the Eighth
Amendment with regards to how they treated Mr. Jenkins'
pain. After consideration of the supplemental briefing, the
Court GRANTS summary judgment in favor of the State
Defendants. The Court also GRANTS Dr. Little's Motion to
Dismiss for lack of personal jurisdiction.
Motion for Summary Judgment
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 “[credibility
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 plaintiffs 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) (quotation
marks and citation omitted).
Motion to Dismiss for Lack of Personal Jurisdiction
motion to dismiss for lack of personal jurisdiction brought
pursuant to Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of demonstrating that the
court's exercise of jurisdiction is proper. See
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
800 (9th Cir. 2004) (citing Scher v. Johnson, 911
F.2d 1357, 1361 (9th Cir. 1990)). When the court's
determination is based on written materials rather than an
evidentiary hearing, “the plaintiff need only make a
prima facie showing of jurisdictional facts.”
Id. (quotation marks and citation omitted). In
resolving the motion on written materials, the court must
“only inquire into whether the plaintiffs pleadings and
affidavits make a prima facie showing of personal
jurisdiction.” Id. (quotation marks omitted)
(quoting Caruth v. Int'l
Psychoanalytical Ass 'n, 59 F.3d 126, 128 (9th Cir.
1995)). A plaintiff cannot solely rest on the bare
allegations of its complaint, but uncontroverted allegations
in the complaint must be taken as true. Id.
Conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiffs favor.
Id. (citing Am. Tel. & Tel. Co. v. Compagnie
Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) and
Bancroft & Masters, Inc. v. Augusta
Nat'l Inc., 223 F.3d 1082, 1087
(9th Cir. 2000)).
November 30, 2011 until December 1, 2011, Mr. Jenkins, while
in state custody at SRCI, was treated at a hospital after he
collapsed during stair step exercises. At the hospital, a
lumbar spine x-ray was taken and showed no acute abnormality.
An MRI of the lumbar spine taken on December 1, 2011, only
revealed evidence of associated small joint effusion in the
back, suggesting an overuse problem. Mr. Jenkins was returned
to SRCI, observed in the infirmary for a short time, and then
returned to general population at SRCI.
February 9, 2012, Garth Gulick, M.D., examined Mr. Jenkins
for a second opinion consultation. Dr. Gulick noted that Mr.
Jenkins had reported intermittent back pain without cause or
association beginning in 2008. Dr. Gulick noted that
injections, Medrol dose packs, and all medication except for
Elavil had been unsuccessful in reducing the pain, and that a
recent taper of Elavil had increased Mr. Jenkins' pain to
a level of six or seven out of ten. On examination, Dr.
Gulick observed that Mr. Jenkins walked slowly, but a lower
back exam was negative for causes. Dr. Gulick ordered a
lumbar spine x-ray and a trial of Pamelor.
February 9, 2012 and June 14, 2012, Mr. Jenkins was seen at
sick call and by Dr. Joedean Elliot-Blakeslee several times
for complaints of increasing low back pain. Mr. Jenkins
requested stronger medication, physical therapy, and a
wheelchair. On May 4, 2012, he received a Toradol injection.
He was also approved to use the “wheelchair taxi
service” to get him to and from his work at SRCI.
Physical therapy, however, was not approved.
a June 14, 2012, appointment with Dr. Elliot-Blakeslee for
Mr. Jenkins' chronic low back pain, Dr. Elliot-Blakeslee
noted that Mr. Jenkins' MRI and x-rays did not show
serious defects and that, to date, he had tried all kinds of
pain medications to no effect. Dr. Elliot-Blakeslee ordered a
trial of Neurontin. A follow-up appointment took place on
July 9, 2012. Dr. Elliot-Blakeslee explained to Mr. Jenkins
that his MRI report from 2011 did not show any spinal cord or
nerve impingement, although mild degenerative joint disease
in two facet joints was found. His Neurontin prescription was
August 6, 2012, through November 30, 2012, in response to his
subjective pain complaints, Mr. Jenkins was examined several
times by Dr. Elliot-Blakeslee and at least once by Dr.
Gulick. Mr. Jenkins stated that he had tried all types of
medications including non-steroidal anti-inflammatories
(“NSAID”), tricyclics, Neurontin, and capsaicin,
and that none of these helped his pain. Mr. Jenkins
complained of pain involving his entire bilateral scapula and
thoracic and lumbar areas down to his pelvis, in addition to
shin and plantar fasciitis pain. Both physicians performed a
battery of diagnostic tests that were inconclusive as to the
source of Mr. Jenkins' pain. Dr. Gulick also recommended
treatment with Cymbalta, which although the Therapeutic Level
of Care (“TLC”) committee approved, was
discontinued because Mr. Jenkins reported it was ineffective.
Mr. Jenkins was ultimately given a trial of Tramadol.
January 7, 2013, Mr. Jenkins reported to Dr. Elliot-Blakeslee
that, with Tramadol, he was able to start exercising again
and could sleep better. He stated that his pain level had
reduced from between eight and nine down to about four to
five on a zero to ten point pain scale. Dr. Elliot-Blakeslee
noted that multiple evaluations had been conducted and many
types of medications had been prescribed in the past in
response to Mr. Jenkins' chronic pain complaints. His
Tramadol renewal was submitted to the TLC committee. The TLC
committee approved a renewal of Tramadol for three months
then a taper during an additional three-month period.
February 27, 2013 and April 29, 2013, the TLC committee
denied Mr. Jenkins' requests for a new lumbar spine MRI
for lack of medically indicated necessity. Mr. Jenkins was
given the option to purchase an MRI on his own.
13, 2013, Mr. Jenkins was seen by Dr. Elliot-Blakeslee. Mr.
Jenkins requested a refill of Tramadol and Neurontin, stating
that they reduce his pain “a little.” He stated
that he hurts everywhere on his body and again requested an
MRI of his lumbar spine. Dr. Elliot-Blakeslee noted that she
suspected fibromyalgia and took Mr. Jenkins' requests to
the TLC committee. The TLC committee denied Mr. Jenkins'
request for a refill of Tramadol and Neurontin. Both Dr.
Gulick and Dr. Elliot-Blakeslee examined Mr. Jenkins'
x-rays and laboratory results, noting negative impressions,
and concluding that there was no evidence that Tramadol and
Neurontin were medically necessary.
2, 2013, Dr. Elliot-Blakeslee saw Mr. Jenkins in response to
his continued pain complaints. He was given a list of 13
different pain medications to choose from that TLC would
allow. He did not want to try any of them and only wanted
Tramadol and Neurontin. The MRI from 2011 was reviewed with
him again with explanation that there was no pathology severe
enough to cause the pain nor was it consistent with entrapped
5, 2013, Mr. Jenkins reported to sick call stating that he
had taken six Tylenol after breakfast and six more after
lunch because of the pain and the fact that his Tramadol and
Neurontin regimen had been stopped. He was informed about the
harms of overuse of Tylenol and was scheduled for a
provider's visit. After continued reports of pain on July
8, 2013, and a possible diagnosis of fibromyalgia by Dr.
Elliot-Blakeslee, on July 10, 2013, the TLC committee
approved a Tramadol and Neurontin regimen. Two weeks later
(July 24, 2013), Mr. Jenkins reported to sick call with
complaints about pain shooting up his right foot. A cane was
issued pending an appointment with Dr. Elliot-Blakeslee on
July 29, 2013. At the appointment, Dr. Elliot-Blakeslee
discontinued Mr. Jenkins' use of a cane and instead
advised him to use a crutch for two months. Dr.
Elliot-Blakeslee also ordered a refill of Tramadol.
Jenkins continued to report pain from August, 2013, through
October, 2013. He stated that, though he received medication,
it was not as much as he needed and was not helping his pain.
On October 24, 2013, Tramadol was discontinued and Mr.
Jenkins was prescribed a crutch for a period of two months.
On January 2, 2014, the TLC committee approved a lumbar spine
MRI and a Neurontin and Ultram (a brand name of Tramadol)
Thomas Bristol saw Mr. Jenkins on January 24, 2014. Dr.
Bristol noted mild disc degeneration of the lumbar region
from the 2011 MRI. He also found mildly restricted range of
motion in the neck and shoulders and stated he would
“consider fibromyalgia.” On February 3, 2014, Mr.
Jenkins underwent a new lumbar spine MRI. The MRI showed a
right paracentral disk protrusion focally distorting the
thecal sac and displacing the right S1 nerve root at level
L5-S1. The TLC committee approved Dr. Bristol's request
for neurosurgical consultation for Mr. Jenkins on February
Kenneth Little performed a L5-S1 hemilaminectomy, medial
facetectomy, and microdiscectomy on Mr. Jenkins on May 20,
2014. On June 19, 2014, Dr. Little outlined a recovery plan
for Mr. Jenkins. For purposes of Dr. Little's Motion to
Dismiss, the Court takes as true Mr. Jenkins' allegation
that Dr. Little originally prescribed Tramadol and Neurontin
indefinitely. The medical record shows that Dr. Little noted
Mr. Jenkins was making good progress and recommended a
Tramadol regimen twice a day for the next three weeks,
followed by a gradual taper as with his Neurontin. Mr.
Jenkins was prescribed Neurontin for two weeks on July 17,
2014. On July 30, 2014, Tramadol and Neurontin were
discontinued in accordance with Dr. Little's order.
ongoing complaints of pain, on August 2, 2014, Mr. Jenkins
received a Toradol injection for his back pain. Four days
later on August 6, 2014, Mr. Jenkins reported that he had
taken 16 Tylenol pills within 24 hours. He was taken offsite
to urgent care and discharged the same day when his blood
tests showed minimal levels of acetaminophen. He was then
held in the SRCI infirmary for observation until August 11,
2014. Mr. Jenkins did not report suicidal ideation but did
state that he “just need[s] the Neurontin back.”
Mr. Jenkins' access to non-aspirin was restricted on Dr.
Gulick's order. In the infirmary, Mr. Jenkins was
prescribed Tramadol and limited doses of acetaminophen for
two months to manage his pain.
committee discussed the plan of care for Mr. Jenkins'
pain issues on August 13, 2014. Options discussed included
another MRI, Neurontin, and Tramadol. The TLC committee did
not approve any of these options, finding that no evidence
supported that they were medically needed.
October 22, 2014, Mr. Jenkins refused to get his medications.
Mr. Jenkins contends that walking to get his medications was
too painful and that the medications were not effective. Mr.
Jenkins was sent offsite for a neurological consult with Dr.
Stephen W. Asher on November 17, 2014. Dr. Asher found no
abnormalities and reviewed the findings with Mr. Jenkins. On
November 19, 2014, the TLC committee again found no medical
support that Mr. Jenkins would benefit from a Neurontin
November 25, 2014, Mr. Jenkins reported to sick call with
severe back pain complaints but was unable to point to the
area of his back in pain and was unwilling to participate in
an examination by bending or stretching. Mr. ...