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Gosney v. Gower

United States District Court, D. Oregon

April 1, 2019

MICHAEL GOWER, et al. Defendants.



         Plaintiff Donald Allen Gosney (“Gosney”), an incarcerated person in the custody of the Oregon Department of Corrections (“ODOC”), brings this case against Michael Gower (“Gower”) (ODOC's Assistant Director of Operations), Linda Ann Gruenwald (a nurse practitioner employed by ODOC), and other ODOC medical personnel (collectively, “Defendants”). (ECF No. 151.) Gosney alleges that Defendants violated his rights to adequate medical care and reasonable accommodations, as guaranteed by the Eighth and Fourteenth Amendments (claims one through three), and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (claims four and five). (Sec. Am. Compl. (“SAC”) ¶¶ 85-109.)

         On June 1, 2018, the Court granted Defendants' motion for partial summary judgment on Gosney's first three claims (for inadequate medical care). (ECF No. 156.) Defendants now move for summary judgment on Gosney's remaining (ADA) claims. (ECF No. 179.) The Court has jurisdiction over this case under 28 U.S.C. § 1331, and all parties have consented the jurisdiction of a U.S. Magistrate Judge under 28 U.S.C. § 636(c). For the following reasons, the Court grants Defendants' motion for summary judgment.

         BACKGROUND [1]

         On February 22, 2013, and again two weeks later, Gosney attended “sick-call” at Two Rivers Correctional Institution. He reported to ODOC medical staff that he was experiencing pain and decreased mobility in his left hip, stemming from a childhood infection. (SAC ¶¶ 4, 17, 19.) Over a year later, on May 6, 2014, Gosney attended sick-call again to report hip pain. (SAC ¶ 21.)

         Gosney received an x-ray that week. (SAC ¶ 22.) Defendant Gruenwald evaluated Gosney on May 22, 2014. (Declaration of Christopher DiGiulio, Dec. 8, 2017 (“DiGiulio Decl.”) ¶ 11.)[2] She prescribed a low bunk/tier/no stairs restriction for one year and pain medication. (Id.)

         On May 27, 2014, Defendant Gruenwald recommended, and ODOC's Therapeutic Level of Care Committee (“TLOC”) approved, magnetic resonance imaging (an “MRI”). (DiGiulio Decl. ¶ 12.) The test was completed two weeks later. (SAC ¶¶ 22-26; DiGiulio Decl. ¶ 13.) The MRI findings were compatible with degenerative disease. (DiGiulio Decl. ¶ 13.)

         Defendant Gruenwald evaluated Gosney again on June 27, 2014. (Id. ¶ 14.) She noted his gait, his range of motion, and his reported physical activity, and she changed his prescription pain medication based on Gosney's report of continued pain. (Id.)

         Two and a half months later, on September 13, 2014, Gosney complained that his medication was not sufficiently managing his pain. (Id. ¶ 15.) Defendant Gruenwald responded two days later (on a Monday), prescribing a different medication for pain and inflammation relief. (Id.)

         On October 3, 2014, a nurse called Gosney in to check on his condition. (SAC ¶ 30; DiGiulio Decl. ¶ 16.) Gosney reported decreased mobility and increasing difficulty with daily activities, and discussed the possibility of a change in work assignment. (SAC ¶ 30; DiGiulio Decl. ¶ 16.) Early the next week, Defendant Gruenwald presented Gosney's case to the TLOC, and the TLOC approved an orthopedic consultation. (DiGiulio Decl. ¶ 17.)

         Gosney met with Dr. Richard Carpenter, an orthopedic specialist, on October 27, 2014. (SAC ¶ 34; DiGiulio Decl. ¶ 18.) Defendant Gruenwald asked Dr. Carpenter to evaluate Gosney's hip and provide a treatment recommendation and a timeframe on how long “he can go for needing hip replacement.” (DiGiulio Decl. ¶ 18.) In his report, Dr. Carpenter wrote, “[Gosney] suffered a hematogenous spread of a systemic infection at three years of age and now has rather significant degenerative arthritis of the left hip. Presently, he is [in great] pain[] and would like a left total hip arthroplasty.” (DiGiulio Decl., Att. 1 at 39.) He explained that Gosney faced a slightly increased chance of infection with surgery, but Dr. Carpenter believed that he could perform the hip replacement safely. (Id.) Gosney recalls Dr. Carpenter “explaining the need for total hip replacement as soon [as] possible” during their appointment. (SAC ¶ 34.) However, Dr. Carpenter did not provide a timeframe in his report, stating only that “[t]his should be presented to the treatment committee, and we will be happy to perform a trabecular metal ingrowth prosthesis on both the acetabular and femoral side.” (DiGiulio Decl., Att. 1 at 39.)

         Gosney's medical record shows a notation on October 27, 2014, stating “pt returned from outside appt pink sheet returned given to provider for review.” (DiGiulio Decl., Att. 1 at 15.) The following day, Defendant Gruenwald noted, “Will present to TLOC.” (Id.)

         The following week, Gosney complained of numbness in his leg. (SAC ¶ 39; DiGiulio Decl. ¶ 18.) He was provided ice, heat, ibuprofen, and relief from work duties. (SAC ¶ 40; DiGiulio Decl. ¶ 21-22.)

         On November 18, 2014, Defendant Gruenwald presented Gosney's case to the TLOC and requested a prescription for pain medication. She did not request ...

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