United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
E. JONES, SENIOR JUDGE UNITED TALES DISTRICT COURT.
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
filed a motion for summary judgment [#19]. For the following
reasons, the defendants3');">39; motion is GRANTED as to all
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 Ass3');">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)).
Eighth Amendment Claim
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 inmate3');">39;s health. Farmer,
511 U.S. at 83');">37.
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 Lujan3');">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
Lujan3');">39;s serious medical need.
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=
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
Turner3');">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.
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');">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