United States District Court, D. Oregon
RICHARD F. WEAVER, JR, Plaintiff,
BENNETTE NORTON/TRCI's TLC COMMITTEE; ROGER CONLEY; CHRISTOPHER DiGIULIO; LINDA GRUENWALD; STEVE SHELTON; DAROTH WETTLAUFER; BRIGITTE WHELAN, Defendants. Richard F. Weaver, Jr. 8855258 Two Rivers Correctional Institution
Richard F. Weaver, Jr., Two Rivers Correctional Institution,
Pro Se Plaintiff.
F. Rosenblum Attorney General Nathaniel Aggrey Assistant
Attorney General Department of Justice Attorneys for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Richard Weaver brings this action under 42 U.S.C. §
1983, alleging violations of his Eighth Amendment right to be
free from cruel and unusual punishment. Defendants include:
Two Rivers Correctional Institution's
(“TRCI”) Therapeutic Level of Care Committee
(“TLC Committee”); the individual members of the
TLC Committee (Roger Conley, Christopher DiGiulio, Linda
Gruenwald, Dr. Steve Shelton, Daroth Wettlaufer, and Brigitte
Whelan); and Oregon Department of Corrections
(“ODOC”) physician Dr. Bennette Norton
(collectively “Individual Defendants”). Plaintiff
claims that Defendants were deliberately indifferent to his
serious medical needs in treating his bilateral ulnar
neuropathy. Before the Court is Defendants' Motion for
Summary Judgment . The Motion is GRANTED in part and
DENIED in part.
is currently in ODOC custody and incarcerated at TRCI in
Umatilla, Oregon. Plaintiff suffered from ulnar neuropathy in
both elbows. Shelton Decl. ¶¶ 3, 8, 40, ECF 51;
Weaver Decl. Ex. A, at 7, ECF 63. “The ulnar nerve runs
down the entire length of the arm and helps control the
muscles in the forearm and hand.” Shelton Decl. ¶
6. The ulnar nerve is especially susceptible to entrapment at
the elbow because of fluid buildup which may occur there.
Id. If non-surgical treatments fail, such as
anti-inflammatory medication, use of a splint or sling, and
physical therapy, then surgery may be necessary. Id.
at ¶ 7. In this case, Plaintiff's ulnar nerves were
pinched at the elbows, causing soreness, numbness, and
weakness in his arms and hands. Id. Ulnar nerve
anterior transposition surgeries were performed on both of
Plaintiff's elbows and cubital tunnel release was
performed on his left elbow. Id. at ¶¶ 8,
40. Ulnar nerve transposition is a procedure “to move
the ulnar nerve so that it doesn't stretch over the bony
parts of the elbow joint.” Id. at ¶ 7.
Cubital tunnel release “is a procedure to remove parts
of the compressed tube that the nerve passes through in the
elbow.” Id. Plaintiff claims that Defendants
failed to provide adequate post-operative care to his right
elbow and that they unreasonably delayed performing surgery
on his left elbow.
Medical Care of Plaintiff's Right Elbow
January 6, 2016, outside medical provider Dr. Robert Hansen
performed ulnar nerve transposition surgery on
Plaintiff's right elbow at West Idaho Orthopedics and
Sports Medicine. Id. at ¶ 8; Weaver Decl. Ex.
A, at 10-11. During surgery, Plaintiff suddenly awoke and
“forcefully jerked” his arm “with a pop and
tearing being heard, ” tearing the ulnar collateral
ligament. Weaver Decl. Ex. A, at 11. According to Dr. Hansen,
the “[t]he ligament itself looked pretty strong”
and he repaired it, stabilizing the elbow by the end of the
procedure. Id. After the procedure, a soft wrap and
a splint were applied to Plaintiff's arm and he was
returned to the recovery room in stable condition.
Id. Plaintiff was transported back to TRCI and
monitored by medical staff there. Shelton Decl. ¶ 8.
Medical staff reminded Plaintiff to elevate his arm and wear
his splint and sling at all times. Id., Attach. 1,
the night after surgery, Plaintiff bled through his dressing.
Weaver Decl. Ex. A, at 15. The following day, he was given
new dressing, his splint was replaced, and he was given pain
medication. Id. On January 11, Plaintiff was
evaluated by TRCI medical staff and advised to keep his arm
in a sling. He was also given pain medication. Id.
On January 14, medical staff evaluated Plaintiff again and he
was fitted with a new sling and instructed on its proper use.
Shelton Decl. ¶ 10, Attach. 1, at 2. From January
through July of 2016, Plaintiff was: evaluated by medical
staff on multiple occasions; given a new sling, new splint,
and elbow brace; prescribed pain medication; and instructed
on how to conduct self-guided physical therapy exercises.
Shelton Decl. ¶¶ 11-24.
Medical Care of Plaintiff's Left Elbow
2, 2015, ODOC physician Dr. Garth Gulick diagnosed Plaintiff
with mild ulnar neuropathy and proposed an ulnar nerve study.
Weaver Decl. Ex. A, at 1. On July 21, 2015, Dr. Gulick
recommended medical imaging for bilateral ulnar nerve
neuropathy. Id. at 2. On August 7, 2015, after an
EMG was taken of Plaintiff's upper extremities, outside
medical provider Dr. Stephen Asher concluded that Plaintiff
had bilateral moderate ulnar neuropathy. Id. at 3-4.
On August 12, 2015, Dr. Gulick recommended that the TLC
Committee approve nerve transposition surgery based on
Plaintiff's bilateral ulnar neuropathy. Id. at
6-7. Dr. Hansen concurred with Dr. Gulick's findings.
Id. The TLC Committee approved the recommendation on
August 26, 2015. Id.
November 20, 2015, Dr. Hansen examined Plaintiff and
concluded that he had significant ulnar neuropathy.
Id. at 9. Dr. Hansen recommended surgical release
transposition of the ulnar nerve. Id. He wrote:
“Patient is sent [sic] for current numbness aching now
weakness and pain in both upper extremities left is
worse.” Id. at 8 (emphasis added). Dr.
Hansen further noted that his findings were “consistent
with ulnar neuropathy worse on the left side than
the right side” and he recommended surgical release
transposition of the ulnar nerve. Id. at 9 (emphasis
added). Under the “Plan” heading, Dr. Hansen
I think the patient would benefit from ulnar nerve
transposition. Sometimes this does not completely relieve the
symptoms and it is possible he may have some persistent
numbness and/or weakness in one or both hands this was
discussed with him. He is having some proceed [sic] with
surgery with this understanding. He will be scheduled for
release and transposition of the left ulnar nerve in this
much as this is most symptomatic.
Id. at 9 (emphasis added).
Hansen's January 6, 2016 operative report describing
Plaintiff's surgery contains some contradictions.
Id. at 10-11. Dr. Hansen wrote that Plaintiff was
diagnosed with ulnar neuropathy in the right arm.
Id. at 10. However, under “Procedures
Performed” he wrote: “Release and anterior
transposition of left ulnar nerve and repair of
left medial ulnar collateral ligament at the
elbow.” Id. at 10 (emphasis added). The
parties do not dispute that Dr. Hansen performed surgery on
Plaintiff's right elbow, not his left. Dr. Hansen
compounded this error when he further described performing
surgery on Plaintiff's left elbow. Id. It is
unclear from the record why Dr. Hansen performed surgery on
Plaintiff's right elbow even though he recommended
surgery on the left first. It is also unclear whether Dr.
Hansen accidentally wrote “left” when he meant
“right” or vice versa.
event, Plaintiff received surgery on his right elbow in
January of 2016 and he received post-operative care through
at least July of 2016. While Plaintiff was receiving
postoperative care on his right elbow, he repeatedly reported
pain in his left elbow and requested a second surgery. Weaver
Decl. Ex. B, at 6-12. For example, on May 6, 2016, Plaintiff
requested surgery on his left arm. Id. at 2. On May
9, he complained generally about nerve pain and requested a
new pain medication. Id. at 3. On May 31, Plaintiff
complained to ODOC again, repeating his request for surgery
on the left arm. Id. at 6. On June 10, 2016,
Plaintiff asked ODOC to schedule surgery on his left arm.
Id. at 8-9. He reiterated that request again on July
18 and 28. Id. at 10-12.
August 18, 2016, Dr. Norton examined Plaintiff. Shelton Decl.
¶ 25. In response to Plaintiff's requests for a
second surgery on his left elbow, Dr. Norton told him that
only surgery on the right had been approved; however, Dr.
Norton scheduled another evaluation of Plaintiff's left
elbow. Id., Attach. 1, at 9. Dr. Norton examined
Plaintiff once more and referred him to Kadlee Neuroscience
Center for a bilateral EMG, which was taken on October 12,
2016. Weaver Decl. Ex. A, at 26. Dr. Turner took the EMG and
wrote that Plaintiff had mild to moderate ulnar neuropathy at
the left elbow. Id. at 27; Shelton Decl. Attach 1,
November 15, 2016, Dr. Norton sent a letter to the TLC
Committee proposing surgery on Plaintiff's left elbow.
Weaver Decl. Ex. A, at 32. The TLC Committee members that
reviewed the request by telephone included Defendants
DiGiulio and Dr. Shelton. Id. The committee
recommended an orthopedic consult on Plaintiff's Right
elbow, then to bring Plaintiff back for consideration of the
February 27, 2017, Dr. Norton evaluated Plaintiff again and
noted that further examination of Plaintiff's left elbow
had been scheduled. Id. at ¶ 35, Attach. 1, at
16. On May 30, 2017, Dr. Norton scheduled a neurosurgical
consult as to Plaintiff's left elbow. Id. at
¶ 38, Attach. 1, at 17. On July 10, 2017, the TLC