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Lujan v. Oregon Department of Corrections

United States District Court, D. Oregon, Pendleton Division

April 2, 2019

MICHAEL LUJAN, Plaintiff,
v.
OREGON DEPARTMENT OF CORRECTIONS, CHRIS DIGIULiO, DR. PATTON, MICHAEL F. GOWER, COLLETTE PETERS, DR. DANIEL DEWNSNUP, DR. NORTON, DR. YIN, DR. DAVIES, DR. BEAMER, TROY BOWSER, ILES, EYNON, MONTOYA, J. BUGHER, MS. B. WHELAN, J. DAFOE, Defendants.

          OPINION AND ORDER

          ROBE E. JONES, SENIOR JUDGE UNITED TALES DISTRICT COURT.

         Plaintiff Michael A. Lujan, acting pro se, brought this prisoner civil rights action pursuant to 42 U.S.C. § 1983');">3. His six claims arise from the medical care he received while incarcerated at the Two Rivers Correctional Institution (TRCI) in Umatilla, Oregon. He alleges that the Oregon Department of Corrections (ODOC) and its employees Dr. Christopher DiGiulio, Dr. Mark Patton, Michael Gower, Dr. Bennette Norton, Dr. Qiang Yin, Michelle Davies, Dr. Leland Beamer, Dr. Daniel Dewsnup, Bridgett Wheian, Joe DaFoe, and Joseph Bugher, violated his Eighth and Fourteenth Amendment rights when they acted with deliberate indifference to his medical needs. He also contends that Colette Peters, Michael Gower, Arnell Eynon, Nicole Montoya, Sherry lies, and Troy Bowser violated his First and Fourteenth Amendment rights by "erecting barriers designed to [prevent] the plaintiff from completing the requirement of grievance exhaustion." (Doc #2, p. 23');">3). In addition, Lujan alleges four state tort claims against various named defendants, alleging physical and financial abuse, breach of contract, medical malpractice, and negligence. Lujan seeks declaratory and injunctive relief, monetary damages for economic and non-economic losses, as well as punitive damages for these claims.

         Defendants filed a motion for summary judgment [#19]. For the following reasons, the defendants&#3');">39; motion is GRANTED as to all claims.

         Legal Standard

         1. Summary Judgment

         Summary judgment is proper where pleadings, discovery and affidavits show there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.p. 56(a). The district court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.p. 56(c). if the moving party shows that there are no genuine issues of material fact, the burden shifts to the non-moving party to "go beyond the pleadings and by [his] own affidavits or by the &#3');">39;depositions, answers to interrogatories and admissions on file,&#3');">39; designate specific facts showing that there is a genuine issue for trial. Celotex Corp. V. Catrett, 3');">317');">477 U.S. 3');">317, 3');">322-24 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 3');">39');">865 F.2d 153');">39, 1542 (9th Cir. 1989). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party and inferences drawn from facts are viewed in the light most favorable to the non-moving party. 7". W. Elec. Service, Inc. v. Pacific Bee. Contractors Ass&#3');">39;n, 809 F.2d 626, 63');">30-3');">31 (9th Cir. 1987). A pro se plaintiff is to be held to a less stringent standard than a plaintiff acting with assistance of counsel. Erickson v. Pardus, 551 U.S. 89, 95 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

        &nbsp.2. Eighth Amendment Claim

         The treatment a prisoner receives in prison is subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 3');">31 (1993');">3). The Eighth Amendment imposes duties on prison officials to provide prisoners with basic necessities, including medical care. Farmer v. Brennan, 511 U.S. 825, 83');">34 (1994). A prison official violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged is objectively, sufficiently serious, Farmer, 511 U.S. at 83');">34, and (2) the prison official possessed a sufficiently culpable state of mind. Id. The official must know of and disregard an excessive risk to an inmate&#3');">39;s health. Farmer, 511 U.S. at 83');">37.

         Discussion

         1. Background [1]

         The case arises out of a settlement in a prior Section 1983');">3 case filed by Lujan, Lujan v. Gruewald, 2:14 cv-01640-MO (D. Or.). Under the terms of the settlement, the ODOC agreed to provide Lujan a one-time medical consultation with Dr. DiGiulio to assess Lujan&#3');">39;s complaints of low back pain. [#3');">33');">3, Ex. 3');">3, p.2]. On April 24, 2017, DiGiulio examined Lujan. DiGiulio noted a previous finding of a compression fracture and recommended further diagnostic evaluation including a new x-ray, a nerve conduction study and electromyogram (EMG), and a follow-up appointment to determine a plan of care. [#3');">33');">3, Ex. 3');">3, p.2]. At the time, Lujan had an active prescription for a drug used for managing back pain and refused to take it. [#3');">33');">3, Ex. 3');">3 p.2]. Approximately a month later, Lujan submitted grievance TRCl 2017-05-269 claiming DiGiulio was deliberately indifferent to Lujan&#3');">39;s serious medical need.[2]

         Lujan alleges that on May 3');">31, 2018 he appeared at sick-call complaining of back and leg pain and that Dr. Patton ordered Capzasin cream for the pain. A week later, Lujan submitted grievance TRCl 2017-06-13');">38 against Patton claiming Patton subjected Lujan to unnecessary infliction of pain.[3');">3" name="FN3');">3" id= "FN3');">3">3');">3]

         On June 27, Dr. Turner performed a nerve conductor test and an EMG on Lujan as recommended by DiGiulio. Subsequently, Turner examined Lujan noting "evidence of a chronic radiculopathy without signs of uncompensated denervation" and recommended a lumbar MRI and a referral for an epidural steroid injection. [#3');">33');">3, Ex. 1], The next day, Lujan wrote DiGiulio and provided him with a copy of Turner&#3');">39;s findings. DiGiulio did not respond. [#3');">33');">3, p. 7-8]. Lujan alleges that he wrote an inmate communication form to Health Services Manager Whelan requesting that she address his pain and she responded that she did not have the authority to do so.

         In June, Patton gave Lujan a steroid injection. [#3');">33');">3, Ex. 3');">3, p. 5]. On July 7, Patton conducted the follow-up appointment after receiving Turner&#3');">39;s findings. Lujan complained of intense pain which Patton acknowledged and suggested Lujan use Ibuprofen and other non-steroidal, anti-inflammatory drugs (NSAID). [#3');">33');">3, p. 8], On July 28, Lujan had an MR1 that found a L4-5 bulging disc that abutted the L4 nerve root. [#3');">33');">3, Ex.23');">3. Between July 28 and August 16, Lujan sent communications to Gower, Peters, Bowser, DaFoe, and Bugher ...


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