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Ross v. Shelton

United States District Court, D. Oregon, Pendleton Division

February 21, 2019

STEVEN SHELTON, M.D., et al, Defendants.


          Youlee Yim You, United States Magistrate Judge

         Pro 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.

         Defendants collectively seek summary judgment (ECF # 31) on all of Ross' claims. For the reasons discussed below, defendants' motion for summary judgment is GRANTED.[1]

         I. Summary Judgment Standard

         FRCP 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)).

         The 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 omitted).

         Pro 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 omitted).

         II. Eighth Amendment

         A. Background Facts

         On July 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.

         On July 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[2] for two weeks. Id.

         On July 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 12.

         Approximately 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.

         On 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. Id.

         Three 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. Id.

         On 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 treatment.” Id.

         On 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.

         On May 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.” Id.

         On May 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 means.” Id.

         Ross 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. ΒΆ 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 ...

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