United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
Yim You, United States Magistrate Judge
se plaintiff James Arthur Ross (“Ross”) is
an inmate housed at Two Rivers Correctional Institution
(“TRCI”) in Umatilla, Oregon. He brings a civil
rights action pursuant to 42 U.S.C. § 1983 against
defendants Dr. Steven Shelton, M.D., medical director at the
Oregon Department of Corrections (“ODOC”), J.
Dafoe, health services administrator at ODOC, and three TRCI
nurses, B. Whelan, Shannon Johnston, and M. Whelan. Ross'
allegations stem from medical care he has received for a knee
injury. He alleges that defendants violated his rights
“to be free from retaliation, to medical treatment, to
be free from cruel and unusual punishment, equal protection
and due process and the [Americans with Disabilities Act]
ADA, as guaranteed . . . through the Oregon Constitution,
Article I, . . . and the United States Constitution[, ]
Amendments 1st, 8th, and 14th[.]” Compl. 2, ECF #2.
Ross seeks 1) an MRI of his knees, ankles, and shoulder; 2)
discontinuation of the policy of placing inmates on sports
restrictions and subjecting them to disciplinary sanctions
for noncompliance; 3) discontinuation of the practice of
administering x-rays for injuries that should be detected
through other means, such as MRIs; and 4) monetary relief in
the amount of $127, 569.23. Id. at 6.
collectively seek summary judgment (ECF # 31) on all of
Ross' claims. For the reasons discussed below,
defendants' motion for summary judgment is
Summary Judgment Standard
56(c) authorizes summary judgment if “no genuine
issue” exists regarding any material fact and
“the moving party is entitled to judgment as a matter
of law.” 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). Once the moving party does so, the nonmoving party
must “go beyond the pleadings” and designate
specific facts showing a “genuine issue for
trial.” Id. at 324 (citing FRCP 56(e)).
court must view the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in
the non-movant's favor. Newmaker v. City of
Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016), cert.
denied, 137 S.Ct. 2217 (2017). Although
“[c]redibility determinations, the weighing of
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
plaintiff's 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) (citation and quotation marks
se complaints are “to be liberally
construed.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). “This rule protects the rights of pro se
litigants to self-representation and meaningful access to the
courts, . . . and is particularly important in civil rights
cases.” Pouncil v. Tilton, 704 F.3d 568,
574-75 (9th Cir. 2012) (citations and quotation marks
6, 2012, Ross saw a medical provider for right knee pain
after being involved in an altercation. Decl. Digiulio,
¶ 7. This was Ross' first complaint of knee pain
since his admission to ODOC in 2004. Id. Three days
later, on July 9, 2012, Ross received two x-rays of his right
knee. Id. The findings were “negative”
and showed “no [b]ony, articular or soft tissue
abnormality.” Id. ¶ 8.
8, 2013, Ross complained of right knee pain, which he has
been experiencing since childhood. ECF #32, at 20. He
reported that his knee went in and out of socket, and that it
was out of socket again. Id. He described constant
pain, rated at a score of six on a scale of one to ten, and
asked for the knee to be popped back into place. Id.
After reviewing the July 9, 2012 x-ray, which showed no
significance, medical staff instructed Ross to rest and take
ibuprofen for pain, and he was given a sports
restriction for two weeks. Id.
17, 2014, Ross was playing basketball when he was struck
below the left knee. Id. at 24-25. He complained of
pain radiating to his toes, a swollen knee, and
“popping.” Id. Ross reported that he
landed on the side of his ankle and heard a
“pop.” ECF #32, at 11. Ross was x-rayed the same
day, and the results were again normal. Digiulio Decl. ¶
9. He was told to rest, ice, elevate, and take ibuprofen, and
he was given crutches with an Ace bandage wrap. ECF #32, at
one month later, on August 20, 2014, Ross complained about
ongoing knee pain and was told to return to sick call if the
problem persisted. Id. He returned on August 30,
2014, complaining again of knee pain. Id.
January 8, 2016, Ross reported to sick call with complaints
of pain in the left knee in the patella region (left
kneecap). Id. ¶ 11. He reported a history of
left knee trauma from playing basketball, and was
experiencing pain and stiffness that woke him during the
night and had worsened over the past six to eight months.
Ross reported that ibuprofen was no longer effective. Ross
was placed on a sports restriction for three months.
days later, Ross received an x-ray of his left knee.
Id. The findings were “normal.”
Id. The articular surfaces were smooth and joint
spaces appeared normal. Id. No acute or chronic
feature was seen, and the patella was aligned and intact.
January 29, 2016, Ross sent an inmate communications form to
the medical department complaining about lack of treatment
for his knee. Compl., Ex. 3. Three days later, on February 3,
2016, he was advised that his “x-ray was normal so most
likely it is soft tissue injury and it takes time for soft
tissue injuries to resolve[.] [R]esting your leg and taking
anti-inflammatories as directed is the right
February 4, 2016, Ross filed a grievance, complaining that
the sports restriction was punitive. He stated that he had
heart problems and needed exercise on a regular basis, and
that there were plenty of exercises he could perform without
hurting his knee. Id., Ex. 5. On March 14, 2016,
defendant Shannon Johnston, an RN Nurse Manager, responded to
the grievance, noting that x-ray results showed a normal left
knee and that a “sports restriction would assist in the
healing of [his] chronic knee injury.” Id.,
Ex. 6. Ross appealed his grievance on March 21, 2016.
Id., Ex. 7. In his appeal, he expressed concern that
“medical would retaliate against me by putting [the]
same restriction on me.” Id.
3, 2016, Dr. Shelton wrote Ross a letter addressing his
grievance form. Id., Ex. 8. Dr. Shelton told Ross
explained that “[t]he type of knee pain [he]
experienced is appropriately treated with rest and
nonsteroidal anti-inflammatory drugs (NSAIDs) which includes
ibuprofen, Naxproxen, and aspirin” and that
“[t]he restriction from sports was intended to avoid
further injury to [his] knee and allow it time to
heal.” Id. Dr. Shelton invited Ross to
“send an Inmate Communication or visit sick call to
discuss the treatment plan based on the progression of [his]
knee symptoms” and that “Health Services is
committed to providing care that is respectful,
compassionate, objective and non-judgmental.”
11, 2016, Ross filed another grievance appeal form.
Id., Ex. 9. Ross stated that “nothing in Dr.
Shelton's response justifies the actions taken by
‘medical' on me, which did not provide me (in my
opinion) proper medical treatment, but only punished me for
seeking it.” Id. On June 27, 2016, defendant
J. DaFoe, an ODOC Health Services Administrator, wrote Ross
and stated, “I see that your knee pain is something
that you have been dealing with for quite some time . . .
.” Id., Ex. 10. DaFoe reiterated that a
“sports restriction is intended to avoid further injury
to your knee and allow it to heal” and “ensures .
. . that you are avoiding the activities that can worsen your
symptoms.” Id. DaFoe explained that
“[t]his is a standard treatment/protocol for patients
complaining of joint/extremity pain/discomfort” and
“not intended to be a ‘punishment' by any
has not reported any knee pain since, although he has
complained on different occasions about the flu, a rash, and
a sore on his third right toe. Digiulio Decl. ¶
14; ECF #32, at 46, 47. According to Dr. Christopher
Digiulio, a physician and deputy medical director with ODOC,
the medical care that Ross has received for knee pain ...