Evans v. Nelson
| Docket Number | 2:19-cv-01210-MK |
| Decision Date | 07 September 2022 |
| Parties | MICHAEL JAMES EVANS, Plaintiff, v. MICHELLE NELSON; MARLENA AGUIAR; DR. BENNETTE BEN NORTON, M.D.; DR. MARK PATTON, M.D.; DR. GARTH GULICK, M.D.; GUY HALL; DOUG ABBOTT; GENELLE MACKEY; GREG JONES; LINDA ANN GRUENWALD, FNP; JOSE OLVERA; WILLIAM MCMILLIAN; KEVIN HODGES; STEVE BOSTON; DR. JOHN DOE #1; DR. JOHN VARGO, D.O.; MR. ROBB NUTT, EAST SIDE PHARMACIST; SHANNON JOHNSTON, TRCI MEDICAL MANAGER; DOROTHY D. WETLAUFER, ASST. MEDICAL ADMIN TRCI; DR. STEVEN SHELTON, M.D., MEDICAL DIRECTOR OF ODOC; AMBER HELFER, PHARMACY TECHNICIAN, TRCI; BARBRA ZELLER, PHARMACY TECHNICIAN, TRCI; CARRIE BROSNAN, PHARMACY TECHNICIAN, TRCI; MARK NOOTH, SUPERINTENDENT, SRCI; JOHN MYRICK, SUPERINTENDENT, TRCI; TAYLOR BOWSER, SUPERINTENDENT, TRCI; JOE BUGHER, ASSISTANT DIRECTOR; MICHAEL F. GOWER, ASSISTANT DIRECTOR OF OPERATIONS ODOC; PHARMACY TECHNICIAN #1 SRCI; PHARMACY TECHNICIAN #2 SRCI; PHARMACY TECHNICIAN #3 SRCI; STEPHANIE MARTIN; C.O. PETER ALLEMAN; JERI TAYLOR, SUPERINTENDENT; TONY KORNEGAY; C.O. LINDA CARTER RET.; CAPT. LAINE IVERSON RET.; and LT. RICH YOUNG, Defendants |
| Court | U.S. District Court — District of Oregon |
Plaintiff Michael James Evans (“Plaintiff”) asserts fifteen causes of action under 42 U.S.C. § 1983 and Oregon state law against Defendants Nelson, Aguiar, Norton, Patton Gulick, Hall, Abbott, Mackey, Jones, Gruenwald, Olvera, McMillian, Hodges, Boston, Dr. John Doe #1, Vargo, Nutt, Johnston, Wetlaufer, Shelton, Helfer, Zeller, Brosnan, Nooth, Myrick, Bowser, Bugher, Gower, Pharmacy Technician #1, Pharmacy Technician #2, Pharmacy Technician #3, Martin, Alleman, Taylor, Kornegay, Carter, Iverson, and Young:
Claim (1): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Vargo and Dr. John Doe #1;
Claim (2): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendant Gruenwald; Claim (3): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gulick, Nutt, Pharmacy Technician #1, Pharmacy Technician #2, and Pharmacy Technician #3;
Claim (4): a First Amendment retaliation claim and Eighth Amendment cruel and unusual punishment claim against Defendants Alleman, Jones, Hall, Mackey, and Abbott;
Claim (5): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gruenwald, Helfer, Zeller, Brosnan, Nutt, Pharmacy Technician #1, Pharmacy Technician #2, and Pharmacy Technician #3;
Claim (6): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, and an Eighth Amendment deliberate indifference claim against Defendants Olvera, Hodges, McMillan, Boston, Jones, Hall, Mackey, and Abbott;
Claim (7): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gulick and Nutt;
Claim (8): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Gruenwald and Norton;
Claim (9): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Norton, Patton, Nelson, and Aguiar;
Claim (10): a First Amendment claim against Defendant Martin;
Claim (11): an Eighth Amendment deliberate indifference claim against Defendants Nutt, Johnston, Wetlaufer, Shelton, Helfer, Zeller, Brosnan, Pharmacy Technician #1, Pharmacy Technician #2, Pharmacy Technician #3, Nooth, Myrick, Bowser, Bugher, Gower, Norton, Patton, Gulick, and Gruenwald; Claim (12): an Eighth Amendment deliberate indifference claim and state law medical malpractice claim against Defendants Norton, Nelson, and Aguiar;
Claim (13): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Young, Kornegay, Norton, and Gruenwald;
Claim (14): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Carter, Norton, and Gruenwald; and
Claim (15): a First Amendment retaliation claim, an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment denial of due process claim, and a state law medical malpractice claim against Defendants Taylor, Iverson, Norton, and Gruenwald. Pl.'s Third Am. Compl., 21-71, ECF No. 56 (“TAC”).
Defendants Abbott, Aguiar, Alleman, Boston, Bowser, Brosnan, Bugher, Gower, Gruenwald, Gulick, Hall, Helfer, Hodges, Iverson, Johnston, Jones, Kornegay, Mackey, Martin, McMillian, Myrick, Nooth, Norton, Nutt, Olvera, Patton, Shelton, Taylor, Vargo, Wettlaufer, Young, and Zeller (collectively, “Defendants”) move for partial summary judgment on procedural grounds as to all of Plaintiff's claims except Plaintiff's tenth claim against Defendant Martin.[1] Defs.' Mot. Summ. J. 1, 39, ECF No. 119 ( ).[2] For the reasons that follow, Defendants' motion should be GRANTED in part and DENIED in part.
Plaintiff is an adult in custody (“AIC”) of the Oregon Department of Corrections (“ODOC”) at Two Rivers Correctional Institution (“TRCI”). TAC ¶ 1 ECF No. 56.
Medical concerns among AICs at ODOC are handled similarly to those of nonincarcerated patients. Decl. of Dr. Warren Roberts ¶ 5, ECF No. 129 (“Roberts Decl.”). AICs are expected to bring health concerns to their provider's attention. Id. For non-urgent concerns, AICs can submit a request for an appointment with a medical provider. Id. For more urgent concerns, AICs can request attendance at a daily medical triage. Id. Emergencies are “handled on an emergency basis, as the situation warrants.” Id.
AICs are generally entitled to informed consent or refusal of a medical service. Id. at ¶ 6. AICs may change their consent or refusal, and their decision is honored absent emergencies or other unusual situations. Id.
Certain medications are given daily or on a regular basis to AICs during daily medication calls. Id. at ¶ 7. AICs report to the medication call line at the designated time and receive their medications directly from medical staff. Id. However, some medication can be kept by AICs in their cells or with their possession for self-administration. Id. AICs are expected to request renewals of such medications, just as non-incarcerated patients are expected to do. Id.
Plaintiff was admitted to ODOC on December 13, 2007. Med. R. 1.[3] All AICs are given an initial intake medical examination upon their arrival. Roberts Decl. ¶ 9, ECF No. 129. Plaintiff received his initial intake medical examination on December 18, 2007. Med. R. 5. In addition to receiving a physical examination, Plaintiff had tests done including a lipids panel test and an EKG ordered. Med. R. 4-5, 57.
On December 23, 2007, Plaintiff had an EKG, which was noted to be abnormal. Med. R. 135, 923.
On January 11, 2008, Plaintiff's lipid panel came back showing Plaintiff's lipid levels were “mostly well outside healthy limits.” Roberts Decl. ¶ 11; Med. R. 558. On January 16, 2008, Plaintiff's medical provider discussed the lipid panel results with Plaintiff. Med. R. 134, 558. At that time, Plaintiff admitted to a history of high lipids and the medical provider diagnosed Plaintiff with hyperlipidemia. Med. R. 134. The medical provider also performed a “Special Needs Review” (“SNR”) of Plaintiff's condition, and noted Plaintiff's test and examination results, medications, weight, activity level, diet, advice given, and plan. Med. R. 929. The advice and plan were for another lipids panel check, a low-fat diet, regular exercise, and a six-month prescription for Lopid. Id. Lopid was provided to Plaintiff as a self-administered medication. Med. R. 916. Plaintiff's medical records indicate that he did not receive any Lopid after June 2008. Roberts Decl. ¶ 13, ECF No. 129.
At some point during or before July 2008, Plaintiff conveyed to Defendant Vargo that Plaintiff had “chronic, severe hereditary hyperlipidemia.” TAC ¶ 94, ECF No. 56. Additionally, Plaintiff represents that he was first diagnosed with hyperlipidemia by his personal physician in 2003 and was treated with a statin called Mevacor/Lovastatin. Pl.'s Resp. 5-6, ECF No. 143.
Plaintiff alleges that at no point did Defendant Vargo “order lipid panels to determine if the [L]opid was needed or even therapeutically effective[.]” TAC ¶ 95, ECF No. 56. Plaintiff also alleges the Lopid was “discontinued” after six months and “not replaced with any other [statin] while [Plaintiff was] at [Oregon State Prison].” Id. Plaintiff further alleges that “[a]t no time did [he] receive the medications needed to control his high blood pressure as he had been prescribed by his regular physician prior to his incarceration throughout the remainder of his stay at [Oregon State Prison.]” Id. at ¶ 96.
Plaintiff's lipid levels were tested again on August 6, 2008, and March 18, 2009. Med. R. 556, 559. The results of both panels indicated Plaintiff's lipid levels were outside the normal range. Id.
On March 26, 2009, Plaintiff met with Defendant Gruenwald because Plaintiff stopped taking his cholesterol-lowering medication and wanted an unrelated medication renewed. Med R. 129. Defendant Gruenwald conducted another SNR regarding Plaintiff's hyperlipidemia and noted that Plaintiff's control of the...
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