Walton v. Arrendondo, Case No. 2:14-cv-00626-KI

• Decision Date: 20 January 2016
• Docket Number: Case No. 2:14-cv-00626-KI
• Parties: TYRONE EARL WALTON, Plaintiff, v. NICOLAS F. ARRENDONDO, MD, medical surgeon; being sued individually and in his official capacity, Defendant.
• Court: U.S. District Court — District of Oregon

TYRONE EARL WALTON, Plaintiff, v. NICOLAS F. ARRENDONDO, MD,medical surgeon; being sued individually and in his official capacity, Defendant.

Case No. 2:14-cv-00626-KI

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

January 20, 2016

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

Tryone Earl Walton

#4421385

82911 Beach Access Rd.

Umatilla, OR 97882

Pro se Plaintiff

Christopher J. Mertens

Miller, Mertens & Comfort, PLLC

1020 N. Center Parkway, Suite B

Kennewick, WA 99336

Attorney for Defendant

KING, Judge:

Tyrone Earl Walton, an inmate at Two Rivers Correctional Institution ("T.R.C.I."), brings a civil rights complaint against Nicolas F. Arrendondo, M.D., the doctor who performed Walton's back surgery. Walton's only remaining claim is that Dr. Arrendondo failed to provide sufficient information to allow Walton to give informed consent, in violation of the Fourteenth Amendment. Pending before me is Dr. Arrendondo's Motion for Summary Judgment [68]. For the following reasons, I grant the motion and dismiss this case with prejudice.

BACKGROUND

When Walton complained of back pain he was transferred from T.R.C.I. in Umatilla, Oregon to Good Shepherd Medical Center for an MRI on his lumbar spine. The MRI indicated a severe L5 radicular deficit thought to be at the L5 root. Walton was referred to Dr. Arrendondo, who examined Walton on May 28, 2010. Dr. Arrendondo explained to Walton that surgery was indicated; without surgery Walton's condition and symptoms would worsen. Specifically, Dr. Arrendondo mentioned symptoms such as weakness, numbness, pain, possible loss of bowel and bladder control, or loss of sexual function without surgery. Walton understood from Dr. Arrendondo that without surgery he would become paralyzed. Dr. Arrendondo recommended an anterior lumbar interbody fusion ("ALIF") which would be supplemented with a posterior pedicle screw fixation. Dr. Arrendondo warned Walton of the risk of retrograde ejaculation,¹ a condition occurring in about six percent of the patients undergoing this procedure. Walton understood surgery carried a six percent chance he would experience pain with ejaculation.Compl. ¶ 13. Walton informed Dr. Arrendondo he would have to think about whether to undergo the recommended surgery.

A few weeks later, Walton met with Dr. Fred I. Field, a vascular surgeon who would assist Dr. Arrendondo. Dr. Field is not a named defendant. Dr. Field thought Walton was a good candidate for the procedure. Walton's main concern was retrograde ejaculation, but Dr. Field also discussed other possible complications. He explained to Walton "that these risks are small but that we cannot guarantee absence of risks or complications." Walton Decl. Ex. 3, at 2. Walton attests Dr. Field refused to discuss alternatives to ALIF surgery, stating that it was the only surgery he would perform.

On or about July 2, 2010, Walton discussed the surgery with prison doctor, Greg Lytle, M.D., who is also not a named defendant. According to Walton, Dr. Lytle thought a six percent chance of retrograde ejaculation was nothing to be concerned about. Walton concluded he would proceed with the surgery.

Walton had a pre-operative appointment with Dr. Arrendondo on July 8, 2010, at which time Dr. Arrendondo again reviewed the risks of surgery. Specifically, Dr. Arrendondo identified the following risks: death, numbness, weakness, failure of fusion, failure of hardware, pain, retrograde ejaculation, and the need for additional surgery. The doctor wrote in the chart that he also discussed alternatives and the benefits of surgery. Walton signed an informed consent document acknowledging he had been informed of the treatment, the alternative treatments, and the risks and that he understood them. The document specifically mentioned: severe loss of blood, infection, cardiac arrest, death, permanent or partial disability, damage to vital organs such as the brain, heart, lung, liver and kidneys, and possible paralysis. Despite hissigned statement to the contrary, Walton attests that Dr. Arrendondo "never discussed alternative solutions for surgery." Walton Decl. ¶ 6.

On July 19, 2010, at the Providence St. Mary Medical Center, Dr. Arrendondo performed back surgery on Walton which involved an incision in his groin area. Dr. Arrendondo did not view the inability to get an erection or to ejaculate as a material risk as he considered it an unlikely side effect. Walton alleges in his complaint that he noticed his penis was swollen the day after his surgery. He also alleges that as a result of the surgery he could not achieve an erection throughout 2010 and 2011.

Walton wrote Dr. Arrendondo on February 15, 2011 saying his back was "doing fine" but inquiring about his inability to achieve an erection. Arrendondo Decl. Ex. D. In a letter dated March 12, 2011, Dr. Arrendondo told Walton the problem he was having was a "less common complication" than the retrograde ejaculation and that it might take 24 months to recover fully. Arrendondo Decl. Ex. E-1. Dr. Arrendondo also mentioned the most common causes of erectile dysfunction are psychological and medication-related and suggested Walton talk with medical personnel at the prison about his stress levels and medications. Walton alleges he has still not fully recovered.

Walton filed his complaint on April 10, 2014², alleging the risks of the surgery were not fully explained to him. He states he would have declined surgery had Dr. Arrendondo told him he may not be able to obtain a full erection. I dismissed Walton's Eighth Amendment deliberateindifference claim on the ground that Walton failed to allege sufficient facts to support a reasonable inference that Dr. Arrendondo acted with deliberate indifference.

Dr. Arrendondo moves for summary judgment on two grounds: statute of limitations and the lack of any genuine issues of material fact on the elements of Walton's Fourteenth Amendment claim.

LEGAL STANDARDS

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "must view the evidence on summary judgment in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party." Nicholson v. Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9^th Cir. 2009) (citation omitted).

DISCUSSION

I. Statute of Limitations

Dr. Arrendondo argues Walton's claim should be dismissed because Walton failed to timely file his complaint within the statute of limitations. Since Section 1983 contains no statute of limitations, Oregon's two-year personal injury statute of limitations governs the timeliness of a Section 1983 action in this court. Sain v. City of Bend, 309 F.3d 1134, 1139 (9^th Cir. 2002);ORS 12.110(1);³ Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9^th Cir. 2012) (applying Oregon's "residual two-year statute of limitations for personal injury actions" to a Section 1983 action). "[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law." Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law "a claim accrues . . . when the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and the cause of that injury." Bonneau, 666 F.3d at 581 (quotation and citations omitted).

The question, then, is when Walton knew or had reason to know Dr. Arrendondo had given him incomplete information. See TwoRivers v. Lewis, 174 F.3d 987, 992 (9^th Cir. 1999) (claim accrues when plaintiff knows or has reason to know of the injury). Dr. Arrendondo contends Walton's cause of action accrued on the day following surgery, when Walton noticed swelling of the affected area, making his complaint due no later than July 20, 2012. Compl. ¶¶ 24-27.

Viewing the facts in the light most favorable to Walton, I accept that he did not know of any unexpected side effects in the days following surgery. Pl.'s Mem. 4 (he was in "severe pain and barely able to walk. And spent the first few days after surgery in his bunk."). Nevertheless, Walton unquestionably knew he could not achieve an erection or ejaculate as of the date he sent a letter to Dr. Arrendondo reporting these problems and inquiring about their likelihood ofresolving. His letter was dated February 15, 2011. Walton did not file his lawsuit until more than two years after he knew or had reason to know of the injury. See Heggem v. Congdon, No. C08-0070-MJP, 2008 WL 4702741, at *3 (W.D. Wash. Oct. 21, 2008) (constitutional informed consent claim dismissed because "plaintiff had reason to know of any injury arising out of the manner in which Dr. Congdon managed and conducted plaintiff's chemotherapy treatment [during those treatments]").

Walton argues the statute should be tolled. He argues he first discovered his injury when he followed Dr. Arrendondo's letter advice and waited the additional 24 months to see if he would heal. Relying on ORS 12.110(4), the statute of limitations relevant to medical malpractice claims, he contends Dr. Arrendondo's assurances to wait and see constituted "fraud, deceit or misleading representation" making the statute of limitations run from the date the fraud, deceit or misleading representation is discovered or should have been discovered. ORS 12.110(4).⁴

It is true state law governs not only the length of the limitations period, but also the "closely related questions of tolling and application[.]" Wilson, 471 U.S. at 268-69. Evenassuming ORS 12.110(4) is sufficiently "'closely related' to the borrowed statute of...