United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
Michael W. Mosman, Chief United States District Judge.
action comes before me on Defendants' Motion for Summary
Judgment . For the following reasons, I GRANT
Defendants' Motion for Summary Judgment.
Larry McCright is a prisoner in the custody of the Oregon
Department of Corrections (ODOC), currently housed at the
Eastern Oregon Correctional Institution (EOCI) in Pendleton.
McCright is suing prison officials in their individual and
official capacities for violating his Eighth Amendment rights
by denying or delaying medical care for a urinary tract issue
and a heart murmur issue (Degenerative Valvular Heart
Disease-DVHD). I previously denied McCright's Motion for
a Preliminary Injunction  based on his failure to
demonstrate a likelihood of success on the merits and failure
to show he is likely to suffer irreparable injury if a
preliminary injunction did not ensue. Order . Following
that denial, Defendants moved for summary judgment.
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). While the movant has the burden of
showing that no genuine issue of fact exists, the nonmoving
party "may not rest upon the mere allegations or denials
of his pleading, but must set forth specific facts showing
that there is a genuine issue for trial." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(quoting Fed.R.Civ.P. 56(e)). The initial burden is on the
moving party to show that no genuine issue of material fact
exists. Celotex Corp v. Catrett, 477 U.S. 317, 323
(1986). Once that burden is met, the burden shifts to the
non-moving party to show through the production of evidence
that an issue of fact remains to be tried. Id. at
Failure to Exhaust Administrative Remedies
first argue that McCright did not exhaust the ODOC's
grievance procedure requirements for his urinary tract
issues. The Prison Litigation Reform Act requires prisoners
to exhaust all available remedies before filing a § 1983
action. Porter v. Nussle, 534 U.S. 516, 524, 532
(2002). McCright has filed several grievances related to his
DVHD issue, but none related to his urinary tract issues.
Defendants acknowledge that one grievance filed may refer to
the urinary tract issues, but that grievance was filed after
the filing of the complaint in this suit and has not been
exhausted. Due to this failure to exhaust his administrative
remedies, I agree with Defendants and GRANT summary judgment
on McCright's urinary tract issues.
Failure to Sufficiently Plead Deliberate Indifference
order to prevail on a claim of the denial of adequate medical
care in violation of the Eighth Amendment, McCright must
establish that Defendants were deliberately indifferent to
his "serious" medical needs. Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000. Deliberate
indifference is shown only where an official "knows of
and disregards an excessive risk of inmate health and
safety." Farmer v. Brennan, 511 U.S. 825, 837
(1994). A difference of medical opinion between doctors over
medical treatment does not amount to deliberate indifference
to a plaintiffs serious medical need. Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989).
contentions in his previous Motion for a Preliminary
Injunction  are relevant here. In that motion, and in his
Complaint, he alleges that Dr. Lehr, an outside physician,
recommended an unknown medication and surgery to fix his
DVHD. Dr. Beamer, a physician specialist at EOCI, agrees that
McCright has DVHD and will need surgery at some point. Dr.
Beamer is monitoring McCright's situation but does not
think McCright needs immediate surgery. McCright wants ODOC
to implement Dr. Lehr's plan immediately, because he is
concerned failure to do so will lead to pain and risk of
death. Unfortunately, McCright has not submitted any evidence
supporting this contention. The medical records he submitted
with his Motion for Preliminary Injunction do not support
this. Dr. Beamer's Declaration  states that there are
no signs of deterioration of McCright's DVHD and nothing
to show that surgery should be performed immediately.
McCright submitted a study performed by Dr. Lehr in 2018
stating that McCright's heart shows "no significant
changes noted in comparison to the previous echocardiographic
study" conducted in 2017. McCright Decl.  Exhibit B
argument for deliberate indifference is based on an alleged
disagreement in treatment plans between Dr. Lehr and Dr.
Beamer. McCright also alleges that Defendants have been
deliberately indifferent to his heart condition by not
permitting immediate surgery, which McCright fears may cause
pain and long-term damage. Even if a difference in the
opinions of Drs. Lehr and Beamer existed, a difference of
medical opinion cannot amount to deliberate indifference.
Further, I found in my previous order  that McCright has
not submitted any evidence supporting his contention that
serious harm may result without the immediate treatment he
desires but ...