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McNair v. State

United States District Court, D. Oregon

May 14, 2018

STATE OF OREGON, et al., Defendants.


          STACIE F. BECKERMAN, United States Magistrate Judge

         Timothy Luther McNair (“Plaintiff”), an inmate in the custody of the Oregon Department of Corrections (“ODOC”), brings this civil rights action alleging violations of the Eighth Amendment's protection against cruel and unusual punishment, and Oregon state tort law. Defendants Kluger, Jordan, Nooth, Bell, Taylor, and Griener move for summary judgment on all claims. (ECF No. 67.) This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367. For the reasons stated below, the Court grants Defendants' motion for summary judgment.


         Plaintiff was admitted to ODOC custody on October 19, 2015. (Decl. of Dr. DiGiulio in Supp. of Defs. Mot. for Summ. J. (“DiGiulio Decl.”) ¶ 3.) On October 20, 27, and November 5, 2015, Plaintiff attended “sick-call.” (DiGiulio Decl., Exh. 1 at 15-16.) He reported pain in his left arm, neck, and back, and pain and numbness in his feet. ODOC transferred Plaintiff to Snake River Correctional Institution (SRCI) on November 18, 2015, and scheduled follow-up medical care to be provided there. (Id.)

         Plaintiff attended sick-call at SCRI on November 25, 2015, complaining of dry feet. (DiGiulio Decl., Exh. 1 at 14.) Medical staff gave him Vaseline. (Id.) One month later, on December 28, Plaintiff returned to sick-call and complained of pain in his right heel and left foot. (DiGiulio Decl., Exh. 1 at 13.) On January 4, 2016, Plaintiff met with his medical provider, Dr. Hemphill, who approved x-rays and scheduled a follow-up visit. (DiGiulio Decl., Exh. 1 at 10; Sec. Am. Compl. (“SAC”) at 4.)

         The x-rays indicated minor spurring of both of Plaintiff's heels. (DiGiulio Decl., Exh. 1 at 17-18.) Heel spurs are calcium deposits on the heel bone that can cause pain, particularly when suffered in conjunction with plantar fasciitis, an inflammation of tissue in the foot. (DiGiulio Decl. ¶ 8.) “Treatments for heel spurs and associated symptoms include exercise, custom-made orthotics, anti-inflammatory medications, and cortisone injections.” (Id.)

         On February 23, 2016, Dr. Hemphill approved Plaintiff for a cortisone injection to treat the foot pain. (DiGiulio Decl., Exh. 1 at 9.) In March 2016, Dr. Hemphill ordered a low-bunk assignment in response to Plaintiff's reported difficulty and pain accessing a top bunk. (DiGiulio Decl., Exh. 1 at 8.)

         Dr. Hemphill saw Plaintiff three additional times in March and April 2016. (DiGiulio Decl., Exh. 1 at 7.) On May 12, 2016, ODOC staff prescribed Plaintiff hydrocodone for pain. (DiGiulio Decl., Exh. 1 at 7.) Dr. Hemphill also submitted a request for orthotic gel heel inserts to the Therapeutic Level of Care Committee (“TLOC”), ODOC's medical oversight committee. (Id.)

         On June 8, 2016, the TLOC approved Plaintiff for “in-debt” pay for the heel inserts. (DiGiulio Decl., Exh. 1 at 32.) Under this payment method, the institution advances the cost of the device to the inmate, and deducts the cost from the inmate's account when funds become available. (DiGiulio Decl. ¶ 22.) This ensures that inmates will not be denied a medical device due to indigence. (Id.) On June 13, 2016, Plaintiff was fitted for the heel cups and signed a release. (DiGiulio Decl., Exh. 1 at 12, 21.) ODOC debited his account on July 6, 2016. (Id.)

         In June 2016, Dr. Hemphill prescribed Plaintiff a different pain medication, in response to reports that the hydrocodone was not helping. (DiGiulio Decl., Exh. 1 at 11.) Although Plaintiff communicated with medical staff in July 2016, he did not report foot pain. On August 3, 2016, Dr. Hemphill requested, and the TLOC approved, another pair of orthotic inserts. (DiGiulio Decl., Exh. 1 at 20.) This pair was approved for “self-pay, ” meaning that Plaintiff must pay for the devices before receiving them. (DiGiulio Decl. ¶ 28.) Plaintiff did not have enough funds in his account to pay the $39.00 cost. (DiGiulio Decl. ¶ 29.) He requested, and received approval for, “in-debt” pay. On October 26, 2016, Plaintiff was sized for the insoles, he received them on November 18, and the funds were debited from his account on November 30, 2016. (DiGiulio Decl., Exh. 1 at 22-25; DiGiulio Decl., Exh. 3.)

         Plaintiff filed this action against ODOC medical personnel, claiming inadequate medical care relating to his foot pain. (See SAC.) Plaintiff alleges that Dr. Hemphill issued an order to provide Plaintiff with wider shoes than those issued upon his arrival at SRCI, and that Defendants ignored Dr. Hemphill's shoe order, aggravating his medical condition. (Id. at 4-5.) Plaintiff further alleges, “[a]s a result of the decision by defendant(s) the [TLOC, ] I was “Denied” the gel heel cups [and the gel insoles] that were prescribed by Dr. Hemphill.” (Id. at 5.)

         Dr. Christopher DiGiulio, ODOC's Acting Medical Director for Health Services, reviewed Plaintiff's medical records and “no record was found of approved medical orthotic shoes during a search of the relevant time period.” (DiGiulio Decl. ¶ 35.) Plaintiff does not contest the authenticity or accuracy of the ODOC medical records provided by Defendants in support of their motion for summary judgment. (See DiGiulio Decl., Exh. 1; see also Pl. Resp. to Defs. Mot. Summ. J.)


         A. ...

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