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Weaver v. Norton

United States District Court, D. Oregon

September 4, 2018


          Richard F. Weaver, Jr., Two Rivers Correctional Institution, Pro Se Plaintiff.

          Ellen F. Rosenblum Attorney General Nathaniel Aggrey Assistant Attorney General Department of Justice Attorneys for Defendants.

          OPINION & ORDER


         Plaintiff 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[1]); 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 [50]. The Motion is GRANTED in part and DENIED in part.


         Plaintiff 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.

         I. Medical Care of Plaintiff's Right Elbow

         On 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, at 3.

         During 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.

         II. Medical Care of Plaintiff's Left Elbow

         On June 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.

         On 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 explained:

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).

         Dr. 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.

         In any 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.

         On 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[2]. 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, at 34.

         On 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 left. Id.

         On 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 ΒΆ 38, Attach. 1, at 17. On July 10, 2017, the TLC ...

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