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Jenkins v. Shelton

United States District Court, D. Oregon

March 28, 2018

STEVE SHELTON, Director of Health Service, Oregon Department of Corrections; MS. AIMEE HUGHES; MS. ASHLEY CLEMENTS; MR. GARTH GULICK; MR. JAMES TAYLOR; MR. KENNETH LITTLE, Defendants.

          Mark G. Passannante, Broer & Passannante, PS. Of Attorneys for Plaintiff.

          Ellen F. Rosenblum, Attorney General, Nathaniel Aggrey and Vanessa A. Nordyke, Assistant Attorneys General, of Attorneys for State Defendants.

          Timothy J. Helfrich, Yturri Rose, LLP, Of Attorneys for Defendant Dr. Kenneth Little.


          Michael H. Simon, District Judge.

         Plaintiff 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.

         Before 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.


         A. Motion for Summary Judgment

         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 “[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).

         B. Motion to Dismiss for Lack of Personal Jurisdiction

         On a 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)).


         From 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.

         On 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.

         Between 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.

         During 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 continued.

         From 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.

         On 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.

         On 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.

         On June 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.

         On July 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 nerves.

         On July 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.

         Mr. 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) regimen.

         Dr. 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 12, 2014.

         Dr. 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.

         After 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.

         The TLC 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.

         On 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 regimen.

         On 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. ...

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