242 F.Supp.2d 821 (D.Or. 2002), Civ. 00-1398, Lavender v. Lampert
| Citation | 242 F.Supp.2d 821 |
| Party Name | Lavender v. Lampert |
| Case Date | September 30, 2002 |
| Court | United States District Courts, 9th Circuit, U.S. District Court — District of Oregon |
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Danny G. Lavender, Ontario, OR, Pro se.
Hardy Myers, Attorney General, Lynne D. Rennick, Assistant Attorney General, Leonard W. Williamson, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for Defendants.
OPINION AND ORDER
HAGGERTY, Chief Judge.
Plaintiff, an inmate at Snake River Correctional Institution, ("SRCI") brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants violated the Eighth and Fourteenth Amendments by demonstrating deliberate indifference to plaintiff's serious medical needs, thereby causing him pain, physical injury, emotional distress, and permanent disability. ( See Am. Compl. (# 7) at 2-5, 8.) Currently before the court is defendants' Motion for Summary Judgment (# 29), which, for the reasons set forth below, is granted as to defendant K. Ryals, and denied as to the remaining defendants.
SUMMARY OF CLAIMS
Plaintiff has been in the custody of the Oregon Department of Corrections ("ODOC") since April 15, 1999. On August 25, 1981, prior to his incarceration, plaintiff suffered a gunshot wound that resulted in a chronic medical condition (partial spastic paralysis) which causes his right foot to flex and curl his toes into a claw. (Am. Compl. at 1.) Defendants contend that surgery and custom orthopedic shoes cannot cure plaintiff's condition, but plaintiff alleges that defendants are deliberately indifferent to managing and treating the chronic pain associated with this medical condition, and that defendants have been deliberately indifferent to the pain and injury caused by delays in providing medically necessary orthopedic footwear.
Plaintiff alleges many other incidents related to defendants' failure to respond to his medical conditions: that various defendants have refused to give plaintiff prescribed medications; that various defendants have refused to treat plaintiff during medical emergencies; and that various defendants
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have unnecessarily delayed or refused to implement treating physicians' orders. Finally, plaintiff alleges that, as a result of defendants' actions, he suffers unnecessarily from pain in his right foot, legs, and back; that his right foot has been damaged further and the skin on his toes rubbed painfully raw from being forced to walk without appropriate orthopedic footwear; that he has suffered emotional distress and anxiety; and that his disability has been exacerbated by defendants' failures to treat him so that he cannot engage in, or is limited in, his normal daily activities, such as walking and performing his work.
Plaintiff requests equitable relief in the form of a transfer from SCRI to another ODOC institution, and medical care to correct the problems with his foot. Plaintiff also requests money damages in the amount of $20 million, including compensatory and punitive damages, costs and post-judgment interest.
By Order dated April 13, 2001, this court found that plaintiff's amended complaint failed to state a claim against defendants Cook, Wambaugh, Bills, Bonner, and Nugent, and dismissed these defendants from the current action. (Order (# 8) at 3-4.) The court's April 13, 2001, Order also dismissed plaintiff's claims brought under the Americans with Disabilities Act, Rehabilitation Act, Oregon's Racketeer and Corrupt Organizations Act, and various state criminal statutes. Id. Therefore, the only claim remaining in this action is plaintiff's § 1983 claim, in which plaintiff alleges that defendants Duncan, Folkman, Posey, Weavert (Beaver), 1 Wick, L. Ryals, K. Ryals, and Lampert ("remaining defendants") violated the Eighth and Fourteenth Amendments by deliberately ignoring and failing to treat plaintiff's serious medical conditions.
SUMMARY OF FACTS
I. Treatment of Chronic Pain
Plaintiff's ODOC medical records indicate that, beginning on March 11, 1999, he complained of chronic pain to medical staff at the Coos County Jail. 2 (Defs.' Motion for Summ. J. (# 29) at Ex. 101, Aff. of Diana Wambaugh, ANP (hereafter "Wambaugh Aff."), Attach. 1, p. 5.) On that date, plaintiff stated that he had been using Tylenol to control his pain, even though Tylenol was not very helpful, so medical staff at the jail prescribed 400 mg of Motrin 3 to be taken on an "as needed" basis for pain relief. ( Id.) The Motrin prescription appears to have been continued until May 9, 1999, after plaintiff's April 27, 1999, transfer to SRCI. ( Id. at Attach. 1, pp. 2-6.)
On April 28, 1999, plaintiff first visited sick call at SRCI, where he requested, but apparently did not receive, Motrin for pain in his leg. ( Id. at Attach. 1, p. 31.) Instead, the nurse wrote a referral to the medical clinic practitioner, who examined
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plaintiff on May 5, 1999, for his complaint of right knee pain and his request to renew the Motrin prescription. ( Id. at p. 2, ¶ 5 & n. 4.) The practitioner, Ms. Wambaugh, prescribed Percogesic, an aspirin-free pain reliever, to be taken twice a day for six months as needed, and assigned plaintiff to a bottom bunk for one year. ( Id. at p. 2, ¶ 6 & Attach. 1, pp. 17, 31.) The Percogesic apparently was effective at relieving plaintiff's pain, since he did not seek additional medical treatment for twenty-two days.
On May 27, 1999, plaintiff complained to the sick call nurse of increased pain in his knee from exercising, and said that he was in pain up to his lower back. (Wambaugh Aff. at Attach. 1, p. 32.) Again, the record does not indicate that he received any immediate treatment for his pain; instead, the nurse referred him to the medical clinic, where he was examined by Ms. Wambaugh on June 1, 1999. ( Id.) On that visit, Ms. Wambaugh decided to discontinue the prescription for Percogesic, and change the prescription to 800 mg of Motrin, to be taken three times a day for six months as needed. ( Id. at p. 3, ¶ 6 & Attach. 1, p. 17.)
Plaintiff apparently experienced adverse effects from the increased dose of Motrin, and reported to the sick call nurse on June 3, 1999, that he was afraid take it because of his allergy to Naprosyn, which, like Motrin, is an NSAID. 4 ( Id. at p. 32.) Plaintiff also reported on that date that he needed pain medication at night for cramps in his right leg, and on this occasion the nurse responded immediately by calling Dr. J.L. Stoune, who is apparently a staff physician at SRCI, and who approved changing plaintiff's prescription to try 325 mg of Quinine Sulfate to be taken once per day. ( Id. at pp. 17, 32, 68.) At a follow-up visit with Dr. Stoune on June 9, 1999, at which plaintiff continued to complain of right leg pain, Dr. Stoune prescribed additional medication, 300 mg of Neurontin, 5 to be taken three times per day. (Wambaugh Aff. at Attach. 1, pp. 18, 33.)
On June 11, 1999, plaintiff visited sick call with continuing complaints about the condition of his right leg, and was referred to defendant Dr. Ian Duncan, who examined plaintiff for complaints of right knee pain on June 17th. ( Id. at p. 33-4). At that time, Dr. Duncan recommended an orthopedic consultation for plaintiff's underlying injury, continued the prescription for Neurontin, and prescribed 975 mg of acetaminophen (Tylenol) to be taken as needed for pain. Plaintiff's medications did not effectively alleviate his pain, because he complained at sick call on June 27, 1999, that his leg pain had increased; and, although his duty was lightened to assign him to housing, he did not receive additional pain relievers. ( Id. at p. 34.) In response to plaintiff's complaints of pain, at a follow-up examination on June 28, 1999, Dr. Duncan prescribed a two-week trial of Flexaril, 6 to be taken three
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times per day as needed to alleviate muscle spasms. ( Id. at pp. 18, 34.)
On July 8, 1999, Dr. Gary L. Bills, an orthopedic specialist, examined plaintiff, and "found that plaintiff had a right sided spastic hemiparesis--an incomplete paralysis which resulted in plaintiff's foot inverting to the point that he walked uncomfortably on the side of it and recommended a surgical release of the tendons." (Defs.' Concise Stmt. of Mat. Facts at p. 3, ¶ 7.) Dr. Bills did not, however, directly address plaintiff's chronic pain management issues, and on July 12, 1999, plaintiff again appeared at sick call complaining of lower back and right leg pain, and requesting a renewal of his Flexaril prescription, which expired that day. (Wambaugh Aff. at Attach. 1, pp. 18-19, 35.) While the nurse scheduled plaintiff for a visit to the clinic to renew his medication, plaintiff did not receive any additional pain medication until July 16, 1999, when Dr. Duncan renewed his Flexaril prescription for a two-month period. ( Id. at pp. 19, 35).
However, plaintiff's medications ceased to be effective at controlling his pain, because on July 28th and 30th, and again on August 4th, plaintiff appeared at sick call with complaints of leg and back pain; and on each occasion he was told that he had a future appointment to see a health care provider, and he did not receive any additional medication for pain. ( Id. at pp. 35-7.) On August 5, 1999, plaintiff was examined by Ms. Wambaugh, and although he requested stronger, narcotic, pain relievers, she "did not believe that Mr. Lavender needed narcotic pain medication for a 15-year-old deformity," and did not authorize a change in his current medications. ( Id. at p. 4, ¶ 13 & Attach. 1, p. 37.) Plaintiff appeared at sick call the next day, complaining of continued pain, and stating that, "[t]he doctor I saw yesterday didn't do nothing. This hurts." ( Id. at Attach. 1, p. 37.) He was not given any additional pain...
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Lavender v. Lampert.
...District Court DELIBERATE INDIFFERENCE Lavender v. Lampert, 242 F.Supp.2d 821 (D.Or. 2002). An inmate brought a [section] 1983 civil rights action asserting deliberate indifference to his serious medical needs. The district court held that the inmate's allegations supported his deliberate i......