Tilahun v. Gower
| Decision Date | 03 May 2021 |
| Docket Number | CIVIL 6:16-cv-00070-AC |
| Parties | SHUA TILAHUN, Plaintiff, v. MICHAEL F. GOWER, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
Plaintiff an adult in custody at the Oregon State Penitentiary (“OSP”), brings this civil rights action pro se. Currently before the court are the parties' cross-motions for summary judgment.[1] For the reasons that follow plaintiff's motion for summary judgment should be denied the defendants' motion for summary judgment should be granted, and this case should be dismissed.
Plaintiff brings this action against several Oregon Department of Corrections (“ODOC”) employees, contractors, and officials. His Amended Complaint alleges violation of his rights under the Fourteenth Amendment Equal Protection Clause and his right to be free from cruel and unusual punishment under the Eighth Amendment, based upon claims of denial of medical care related to the discontinuance of a pain reliever (Neurontin) and denial of treatment for facial injuries improper mental health treatment, and improper housing accommodations in violation of his rights under 42 U.S.C § 1983.[2] Defendants move for summary judgment on the following grounds: (1) many of plaintiff's allegations concern conduct which occurred outside the statute of limitations; (2) plaintiff fails to allege facts stating a claim upon which relief may be granted against defendant Gower; (3) plaintiff has not fully exhausted his administrative remedies as to all of the claims alleged; (4) plaintiff has not stated a viable equal protection claim; (5) plaintiff did not suffer deliberate indifference to his serious medical or mental health needs; (6) plaintiff's housing accommodations were not unconstitutional; and (7) defendants are entitled to qualified immunity.[3]
Plaintiff was prescribed Neurontin in February of 2012 to treat back pain. (Paulson Decl., ECF No. 147, ¶ 6). Plaintiff states he was prescribed Neurontin for chronic back pain caused by nerve damage from multiple injuries. (Am. Comp. at ¶ 20; Exh. 12a).
Neurontin (generic name “gabapentin”) is an anti-epileptic drug, also called an anticonvulsant, which can help patients who suffer from seizures. (Paulson Decl. at ¶ 4.) Neurontin is also used to treat neuropathic pain caused by the herpes virus or shingles. Id. It is a drug that has a heavy sedative effect, which can be akin to having a couple of beers or valiums. Id. at ¶ 5. Within the prison setting, it is often diverted, or used inappropriately, due to its sedative effect. Id. Because of its potential for abuse, and because there are other medications for treatment of epilepsy and shingles, it has been taken off the formulary at ODOC and an inmate must have Therapeutic Level of Care (“TLC”) Committee approval to use it. Id.
Plaintiff's Neurontin prescription was discontinued in February of 2015 due to educated suspicion of diverting, or “cheeking, ” the medication, as well as a lack of clinical indication that it was needed to treat his back pain. Id. at ¶ 6. “Cheeking” refers to keeping the medication in one's mouth instead of swallowing it as intended, and later retrieving it. Id. The reasons for cheeking include selling the drug or otherwise providing it to someone else, and collecting multiple medications in one setting for an increased sedative effect. Id.
According to Dr. Reed Paulson, there is no current clinical indication to prescribe Neurontin to plaintiff because his back pain can be treated with other medications. Id. at ¶ 7. Plaintiff has been offered several NSAID medications, which he declined after trying. Id. Plaintiff has also been offered on multiple occasions physical rehabilitation teaching materials for his back. Id. Dr. Paulson informed plaintiff that no medication is a perfectly good option and the plaintiff could and should focus on physical measures to improve back function. Id. In July of 2016, plaintiff was transported to the Emergency Department of the Salem Hospital because of an overdose of the illegal drug “spice, ” a synthetic cannabinoid. Id. This incident made plaintiff even less of a candidate for neuro-altering medications, for his own safety. Id.
Plaintiff states he continues to suffer back pain for which he now receives over-the-counter pain relievers with coatings to protect the stomach from prolonged use. (Am. Comp. at ¶ 27). Plaintiff states that over-the-counter pain relievers do not alleviate the pain, and that long-term use would be harmful to his health even if they did alleviate the pain. Id.
Plaintiff's nose, cheek, and occipital bone were broken in a 2012 altercation with staff at the Two Rivers Correctional Institution. (Am. Comp. at ¶ 28). Plaintiff states that at the time of the injury, an emergency room doctor told him he needed to see a specialist. Id. Since arriving at OSP, plaintiff has complained of issues with his face, including discomfort in the left maxilla with swelling and persistent congestion. (Paulson Decl. at ¶ 9). In November of 2013 and again in April of 2016 Willamette Valley Radiology took and reviewed facial x-rays, which were normal. Id. Since suffering his facial injury, plaintiff has had approximately 129 medical appointments within ODOC. (Coffey Decl., ECF No. 149 at ¶ 3).
Plaintiff has been diagnosed from childhood with several chronic and severe psychological disorders, including major depression, conduct disorder, ADHD, Schizoaffective Disorder, Transient Tic Disorder, Posttraumatic Stress Disorder, Reactive Attachment Disorder, Tourette's, Bipolar Disorder, Aspergers Disorder, as well as cognitive functioning deficits and learning disorders. (Am. Compl. at ¶ 37). In July and August of 2014, plaintiff participated in psychological testing at OSP. (Gitnes Decl., ECF No. 146 at ¶ 3). This testing informed a change in plaintiffs mental health diagnosis to dysthymia (now known as “persistent depressive disorder”), antisocial personality disorder, narcissistic personality disorder, and borderline personality disorder. Id. These diagnoses remain in effect. Id.
Plaintiff's mental health medications have been changed or discontinued at least four different times due to indications of misuse or diversion of medication, which has included repeated instances of cheeking. (Dravis Decl., ECF No. 145 at ¶ 5). On May 5, 2014, plaintiff's prescription for Strattera (for treatment of ADHD), and prescriptions for Benadryl, Remeron, and BuSpar (for treatment of anxiety and depression) were discontinued due to cheeking. Id. On July 10, 2014, plaintiff was prescribed Celexa for treatment of depression and anxiety. Id. On August 5, 2014, plaintiff's Celexa prescription was discontinued and he was prescribed Lexapro. Id. His Lexapro prescription was ordered “crushed” on September 5, 2014, due to cheeking. Id. On January 22, 2015, plaintiff was prescribed Vistaril for insomnia. Id. On March 3, 2015, plaintiff's Vistaril prescription was stopped due to cheeking. Id.
On April 18, 2016, plaintiff was prescribed Effexor XR for depression and anxiety. Id. Effexor XR is an extended release medication that cannot be crushed. Id. Plaintiff's Lexapro dosage was lowered for one week and then discontinued because the Effexor XR was intended to replace it. Id. Plaintiff requested this change in medication. Id. On July 13, 2017, orders were entered to taper and discontinue plaintiff's prescription for Effexor XR. This was done due to a disciplinary report indicating that a correctional officer observed plaintiff placing something in his mouth and swallowing it during a random search. Id. Plaintiff ultimately gave at least three different versions of what happened, but told one person that he swallowed Effexor XR. Id.
Plaintiff has a history of misusing medications. Id. at ¶ 6. Because of the multiple incidents demonstrating that he is unable or unwilling to use prescription psychotropic medication responsibly, he no longer isconsidered an appropriate candidate for treatment with psychotropic medication.[4] Id. In Dr. Dravis's opinion, medications are not required or necessary to treat plaintiffs mental health conditions. Id.
There are multiple housing units, or blocks of cells, within OSP. (Long Decl., ECF No. 144 at ¶ 4). Plaintiff has been housed in both “D” and “E” blocks, as well as in cells within the Disciplinary Segregation Unit (“DSU”). Id. Cells in “D” and “E” blocks have 48 square-feet of space. Id. Cells in DSU have 50.66 square feet of space. Id. From July 25, 2016, to date, plaintiff has been housed by himself. Id.
Summary judgment is appropriate where 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(a). The moving party must establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of that party. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014); Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
Because plaintiff is proceeding pro se, the court construes...
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