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Suchodolski v. Peters

United States District Court, D. Oregon, Portland Division

October 10, 2018





         Plaintiff Skyler J. Suchodolski (“Suchodolski”), an inmate in the custody of the Oregon Department of Corrections (“Department”) currently housed at the Warner Creek Correctional Facility (“Warner Creek”) who is appearing pro se, filed this Section 1983 action alleging violations of rights protected by the Eighth and Fourteenth Amendments. Suchodolski names Colette S. Peters, Director of the Department (“Peters”); Michael Gower, Assistant Director of the Department (“Gower”); Christopher DiGiulio, M.D., Deputy Medical Director of the Department (“Dr. DiGiulio”); Mark Jungvirt, Interim Health Services Administrator of the Department (“Jungvirt”); Mark Nooth, Eastside Institution Director for the Department (“Nooth”); Steve Brown, Warner Creek Superintendent (“Brown”); Brenda Johnson, Executive Support Specialist 1 for the Department (“Johnson”); Daniel Dewsnup, M.D., Therapeutic Level of Care Committee (“Committee”)[1] member (“Dr. Dewsnup”); Thomas Bristol, M.D., Committee member (“Dr. Bristol”); Heidi A. Montgomery, Committee member (“Montgomery”); Sean Elliott, Committee member (“Elliot”); and Charles Scott Graham, M.D. (“Dr. Graham”)(collectively “Defendants”) as defendants.

         Currently before the court are the parties' cross-motions for summary judgment. The court finds Suchodolski failed to establish the level of care provided by Defendants violated his rights under the Eighth Amendment. Additionally, Suchodolski failed to identify the existence of a right or interest entitled to protection under the Fourteenth Amendment or Defendants deprivation of such right. Accordingly, Defendants' motion for summary judgment is granted and Suchodolski's motion for summary judgmment is denied.[2]


         While weightlifting on October 19, 2016, Suchodolski felt a “warm/burning tearing sensation in [his] right lower abdominal/groin area.” (Suchodolski Decl. dated December 27, 2017, ECF No. 22 (“Suchodolski Decl.”), ¶ 1.) The following day, a nurse examined Suchodolski, provided education on muscle sprains and strains, suggested the use of Tylenol for pain, and recommended Suchodolski avoid weight lifting. (Pl.'s 42 U.S.C. § 1983 Ex. List, ECF No. 24 (“Ex. List”), Exs. 1, 2.) On October 24, 2016, Suchodolski reported continued pain to the nurse, which now included discomfort in his right testicle, and was scheduled to see a physician on November 23, 2016. (Suchodolski Decl. ¶¶ 6, 8; Ex. List Ex. 2.) Suchodolski missed his November 23, 2016 appointment and did not attempt to reschedule as his symptoms appeared to alleviate with rest. (Suchodolski Decl. ¶¶ 9-11; Ex. List Ex. 2.)

         Suchodolski resumed weightlifting and, in late February, 2017, felt a “pop” and a warm, burning sensation in his lower abdominal area while performing “deadlifts.” (Suchodolski Decl. ¶¶ 12, 13.) Suchodolski reported the injury to a nurse, who scheduled an appointment with a physician. (Suchodolski Decl. ¶ 13.) On March 1, 2017, Dr. Graham examined Suchodolski and noted Suchodolski:

is tender in the right lower quadrant area just above the ilio inguinal ligament, he has no tenderness at the external inguinal ring, it is more between the external and internal ring, his testicles were descended bilaterally, he has no evidence of a hernia on exam but he does have pain in that area, he said once in a while he will get a little tiny bump about the size of the end of his finger. I feel an obvious defect.[3]

(Ex. List Ex. 3.)

         Dr. Graham diagnosed Suchodolski with the “possibility of a beginning of a slight inguinal hernia versus ilio inguinal strain” and recommended Suchodolski limit his squats and deadlifts to reduce strain to the area. (Ex. List Ex. 3.) Dr. Graham agreed to refer Suchodolski's request for an ultrasound to the Committee, but expressly noted “there are no signs of strangulation or incarceration or even any sign of a definite hernia in the site.” (Ex. List Ex. 3.) On March 2, 2017, the Committee denied the request for additional testing, recommending conservative care and clinical follow-up for development of a hernia. (Ex. List Ex. 4.)

         Suchodolski filed a grievance on March 9, 2017 (the “First Grievance”), claiming Dr. Graham mishandled his diagnosis and submitted an inaccurate referral to the Committee, and requesting a proper examination. (Ex. List Ex. 5.) Barbara Fitzpatrick, R.N. (“Fitzpatrick”) denied the First Grievance on March 15, 2017, explaining that while Dr. Graham acknowledged Suchodolski's pain, there was no definitive signs of a hernia and no evidence of a serious medical issue. (Ex. List Ex. 6.) Two days later, Suchodolski reported an increase in pain and requested another evaluation by a physician, which was scheduled. (Ex. List Ex. 3.) Suchodolski appealed the denial of his First Grievance on March 27, 2017 (the “First Appeal”), again seeking “proper medical care and a further examination.” (Ex. List Ex. 7.)

         Dr. Graham examined Suchodolski again on April 5, 2017. (Ex. List Ex. 11.) His chart notes provide:

Subjective: Patient comes in [to] discuss his right inguinal pain and possible hernia. I had evaluated him on March 1, 2017[, ] and I did not feel a hernia present during that exam. He does have possibly a little bit of weakness in that area or prominence with Valsalva on the right versus the left. He said he continues to have pain anytime he does any lifting, bending over he will have pain. He actually describes it as this thing that pop[s] out and he will push it back in and it will pop out and he will push it back in, it just depends on what he is doing. No. left-sided symptoms. He is here really to discuss further evaluation and possible ultrasound or other modalities to evaluate for a hernia for potential repair. He gives a history of that if it does come out, he is able to push it back in which to me shows no signs of strangulation or incarceration. He has no urinary symptoms, he is able to function at the capacity of the institution; Just getting up, moving and going to chow. He said he has also stopped lifting weights.
Objective: Blood pressure, 141/67, pulse 83, SATS 95% on room air, weight 190 pounds; GENERAL-23 year old male, he is alert and awake, abdomen is soft, with Valsalva standing there is a slight bulge or fullness on the right more than on the left, even with Valsalva and coughing, bearing down I do not feel any inguinal hernia, there is nothing herniated through the external inguinal ring, the left side is normal, there's a little more bulging on the right side than the left side. He was not able to reproduce this true herniation that he describes so that I can't evaluate that or reduce it.
Assessment: right inguinal strain without evidence of a hernia present.
Plan: I don't think an ultrasound or CT scan at this point would change my plan of care and obviously there is not a large hernia that is becoming strangulated or incarcerated. I am unable to get him to reproduce the true herniation during the exam. TLC has reviewed this case and they recommended continued monitoring of his symptoms and evaluation. If there's any changes in his symptoms or problems he can always be reevaluated and reassessed at any time. He will follow up on an as-needed basis or if there's any changes he will be seen at any time.

(Ex. List Ex. 11.) On April 6, 2017, Suchodolski failed to appear for triage with the nurse. (Ex. List Ex. 8.) On April 7, 2017, Suchodolski sought clarification of his diagnosis and treatment plan, explaining his “bunkie” had a hernia repair while incarcerated in another Department facility which did not require review or approval by the Committee. (Ex. List Ex. 8.)[4]

         In a letter dated April 17, 2017, Dr. DiGiulio effectively denied the First Appeal. (Ex. List Ex. 13.) Dr. DiGiulio referenced the Department's Health Services Section Policy and Procedure #P-A-02.1 (the “Policy”), which he explained “addresses the level of therapeutic care provided by [Department] health services, ” and concluded Suchodolski's “current concerns would fall under the category of Level 3 ‘medically acceptable but not medically necessary' for which treatment is authorized on a case[-]by[-]case basis.” (Ex. List Ex. 13.) Dr. DiGiulio informed Suchodolski:

based on the findings of your examination, Dr. Graham and the [Committee] have determined a higher level of care is not medically indicated or necessary at this time. It is understood that you are/may experience discomfort as a result of this injury. Health Services will work with you to minimize this; your part is to avoid activities such as weightlifting that cause further strain to the area. Please continue to work with the medical staff at [Warner Creek] to address future medical needs.

(Ex. List Ex. 13.) Two days later, Suchodolski appealed the denial of the First Appeal (the “Second Appeal”), representing he had been diagnosed with an inguinal hernia and asserting failure to treat a hernia, no matter how slight, is deliberately cruel. (Ex. List Ex. 17.)

         Suchodolski reported continued pain on April 24, 2017, and his “hernia” popped out again on April 28, 2017 (Ex. List Ex. 11.) In early May, 2017, Suchodolski complained to a nurse of a sharp, burning pain in his right inguinal area which prevented him from completing his bowel movement on at least two occasions. (Ex. List Ex. 38.) Suchodolski explained the pain was getting worse and he was experiencing anxiety as a result of his condition. (Ex. List Ex. 38.) He was still lifting weights but not doing “squats” or “deadlifts, ” and had pain when doing sit ups or even just need for straining during bowel movements and decreasing manipulation of the area with his fingers, and educated Suchodolski on splinting the area, if necessary. (Ex. List Ex. 42.)

         On May 10, 2017, the Committee reviewed a request for a second opinion by a Department physician, again agreed with Dr. Graham's evaluation, and recommended Suchodolski be followed clinically. (Ex. List Ex. 44.) In a letter dated May 17, 2017, the Department denied the Second Appeal, explaining:

[t]here is no documentation in your medical file from Dr. Graham diagnosing you with an inguinal hernia. As explained to you previously, Dr. Graham[']s notes of March 1, 2017[, ] state that you have the possibility of a beginning of a slight hernia versus an ilio inguinal strain. You were recently re-evaluated on April 5, 2017[, ] by Dr. Graham. Based on the findings of that examination, the diagnosis on April 5, 2017, was right inguinal strain without evidence of a hernia present.
Health Services is in no way denouncing your concerns. However, based upon the findings of your physical examinations to date, continued observation and conservative care are recommended by the [Committee]. In addition, as Dr. DiGiulio explained in his response to your grievance appeal, your medical issue is currently a level 3 category, meaning that a higher level of care is not medically necessary at this time.
Health [S]ervices will continue to monitor your condition for changes or for any indication that further work up is warranted. It is important for you to avoid activities which cause further strain or injury to the area. Health Services understands that avoid those activities may require a lifestyle change; the decision to make those life style changes to avoid further injury is up to you.

(Ex. List Ex. 48.)

         In early June 2017, Suchodolski reported an increase in pain “from the root of the right testicle” up to the abdomen despite “resting, ” eliminating “squats or heavy lifting, ” and just “trying to take it easy.” (Ex. List Ex. 46.) At Suchodolski's request, the nurse scheduled another appointment with Dr. Graham, which occurred on June 21, 2017. (Ex. List Ex. 46.) Dr. Graham's chart notes from the June 21, 2017 examination provide:

Subjective: Patient comes in to be reevaluated for his lower abdominal pain. He is still concerned that he might have an underlying hernia. He points to just above the base of his penis at the suprapubic area in regards to where he feels pain. He says when he bears down he feels a bulge. He did come in and see Nurse Erickson in April, and he was evaluated. There was no evidence of a bulge at that time. He denies any bowl or bladder issues, but he does have pain in this area. He says he wouldn't be into medical if it wasn't bothering him; he says that he has a lot better things to do than come to medical. Apparently, this has been an ongoing issue since 2015. At that point he was doing quite a bit of heavy lifting. He denies any back pain or lower extremity problems. It is just kind of in that one spot. When asked more about his lifting practices and what he does - he said he hasn't been doing any lighting except for his own body weight since he was advised against strenuous/heavy lifting. He said he has been doing squats with his own body weight. He said he's even taken extended periods of time off the weight pile to rest it, and it sill continues to bother him. I have sent this to [the Committee] for review a couple different times, and basically they recommended that I continue to evaluate him for any changes.
Objective : BP - 133/64, pulse 78, SATS 99% on room air, weight 185lbs; General - 23 year-old male, he is alert and awake and in no acute distress, he ambulates in without any abnormal limps or problems; HEENT - show conjunctiva to be non-pale, heart is regular, lungs are clear, abdomen is soft; Standing Exam: he is a normal, circumcised male. There is no obvious bulge, even when he Valsalva's or strains, I do not see a bulge. On both right and left a little bit of a bulge is noted at the pyramidalis and the lower rectus abdominal muscles when he does strain. There is no abnormality in his right inguinal ligament area. Even with Valsalva, there is ...

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