Allee v. Shurbondy et al

Filing 60

ORDER: Defendants' motion for judgment on the pleadings 37 is granted with prejudice. Plaintiff's motions 35 , 36 , 45 , 51 , and defendants' motion for stay 41 are denied as moot. Signed on 9/24/2012 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
DONALD ERNEST ALLEE,
No. 1:11-cv-0188-PA
Plaintiff,
v.

J. SHURBONDY, et al.,

ORDER

Defendants.

PANNER, District Judge:
Plaintiff, an inmate in the custody of the Oregon Department
of Corrections, brings this action pro se, claiming defendants did
not provide adequate medical care and discriminated against him
because of disability.
Defendants move for judgment on the pleadings and to dismiss
for failure to exhaust.

I grant the motion for judgment on the

pleadings.
BACKGROUND
This is plaintiff's third action claiming prison employees
improperly refused to provide him with a wheelchair or cane,
despite an injury to his right knee that made walking painful.
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In 2006, plaintiff filed an action in this court, alleging
deliberate indifference and disability discrimination.

This court

granted summary judgment to the defendants, and the Ninth Circuit
affirmed.

Allee v. Or. Dep't of Corr., 2007 WL 2417390
(9th Cir. 2009)

(D. Or.

2007)

(Allee I), aff'd, 315 F. App'x 610

(Allee

II).

The Ninth Circuit held that plaintiff "failed to controvert

defendants' medical evidence showing that [plaintiff's] condition
might improve with increased walking, and that a wheelchair and
cane were not medically necessary."

Allee II, at *1.

In 2010, plaintiff filed an action in state court, again
claiming that prison employees were deliberately indifferent to
his serious medical needs by denying him a wheelchair or cane.
The Malheur County Circuit Court dismissed plaintiff's action with
prejudice.

Allee v. Noth, Case No. 10058112H (Malheur Cnty. Cir.

Ct. Dec. 3, 2010).

Plaintiff did not appeal.

See Hallman Decl.,

Attach. 6, at 4.
In December 2010, plaintiff was transferred from the Snake
River Correctional Institution to the Two Rivers Correctional
Institution.

At the Two Rivers Correctional Institution, prison

staff initially did not provide plaintiff with a wheelchair.
Plaintiff alleges that without a wheelchair, he could not take
showers and was disciplined for that failure.
Plaintiff filed this action in February 2011.

Plaintiff

alleges in spring 2011, he realized that his pain was caused by
fallen arches. and poor circplation to his feet.

Plaintiff alleges

that by using improvised arch supports in his shoes, he now can

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stand and walk short distances without pain for the first time in
years.
~s

On August 10, 2012, plaintiff stated by affidavit that he

"'up and mobile, with nearly no pain in my feet'

--unless I

try to walk too far or stand for too long a period of time; and,
Medical Staff are (currently) accommodating my needs by providing
me with a cane and use of a wheelchair -- without a lot of hoo-ha,
nonsense."

Pl.'s Aff.

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23.
DISCUSSION

I.

Judgment on the Pleadings
A.

Legal Standards for Judgment on the

"After the pleadings are closed
judgment on the pleadings."

~leadings

. a party may move for

Fed. R. Civ. P. 12(c).

The court

should grant judgment on the pleadings when, accepting the
complaint's factual allegations as true, "'there is no issue of
material fact in dispute, and the moving party is entitled to
judgment as a matter of law.'"
1102, 1108

(9th Cir. 2012)

Chavez v .' United States, 683 F. 3d

(quoting Fleming v. Pickard, 581 F.3d

922, 925 (9th Cir. 2009)).
A motion for judgment on the pleadings is equivalent to a
motion to dismiss for failure to state a claim under Rule
12 (b) (6).
Cir. 2012).

Harris v. County of Orange,

682 F. 3d 1126, 1131 (9th

In ruling on these motions, the court takes the facts

alleged in the complaint to be true and determines whether the
moving party is entitled to judgment as a matter of law.

Id.

The

court discounts conclusory statements of fact, which are not
entitled to the presumption of truth.

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Chavez, 683 F.3d at 1108.

"'Determining whether a complaint states a plausible claim for
relief will .

. be a context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense."'

Id. at 1109 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009)).
B.

Defendants Are Entitled to Judgment on the Pleadings
1.

Deliberate Indifference

To prevail on an Eighth Amendment claim for deliberate
indifference, a plaintiff first must show that he has "'a serious
medical need by demonstrating that failure to treat a prisoner's
condition could result in further significant injury or the
unnecessary and wanton infliction of pain.'"
680 F.3d 1113, 1122 (9th Cir. 2012)
F:3d 1091, 1096 (9th Cir. 2006)
citation omitted)).

Wilhelm v. Rotman,

(quoting Jett v. Penner, 439

(further quotation marks and

"'Second, the plaintiff must show the

defendant's response to the need was deliberately indifferent.'"
Id.

(quoting Jett,

439 F.3d at 1096).

To show deliberate

indifference, the plaintiff must present evidence that the
defendants purposefully acted or failed to respond to the
plaintiff's medical need, and that the defendants' indifference
harmed the plaintiff.

Wilhelm,

680 F.3d at 1122.

Medical

malpractice or negligence is not sufficient to establish an Eighth
Amendment violation, nor is a difference in medical opinion.

Id.

at 1122-23.
Plaintiff alleges, "I was mis-diagnosed (all this time), when
I had clearly stated my pains and conditions, that were very

4 - ORDER

disabling."

Am. Compl. at 5.

pleadings as true,

Taking plaintiff's non-conclusory

I conclude that plaintiff has shown at worst a

negligent misdiagnosis of his medical problems.

Negligent

misdiagnosis, without more, is not deliberate indifference.
Wilhelm, 680 F. 3d at 1123 (decision not to. operate on hernia was
not deliberate indifference because physician incorrectly thought
the plaintiff did not have a hernia).
to treat plaintiff's medical problems.

Here, defendants attempted
Plaintiff's complaints

about difficulty walking generally focused on his right knee.
Although plaintiff disagrees with defendants' treatment decisions,
he has not shown deliberate indifference.
2.

Disability Discrimination

Taking plaintiff's non-conclusory allegations as true, he has
failed to show defendants discriminated against him because of a
disability.

Plaintiff has not presented evidence that defendants

regarded him as suffering from a disability.

Nor do plaintiff's

allegations show that defendants discriminated against him based
on disability.
C.

Claim and Issue Preclusion

Defendants contend the judgment against plaintiff in the
state court litigation bars plaintiff from raising the same issues
here.

The "full faith and credit" statute, 28 U.S.C.

§

1738,

requires this court to give a state court judgment the same
preclusive effect the judgment would have under state law.
Engquist v. Or. Deo't of Agriculture, 478 F.3d 985, 1007
2007), aff'd,

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553 U.S. 591 (2008).

(9th Cir.

Here, plaintiff filed the state court action in 2010,
complaining that staff at Snake River Correctional Institution
improperly denied him access to a cane or wheelchair.
court ruled against plaintiff.

The state

To the extent plaintiff's Eighth

Amendment claim is based on defendants' alleged actions between
January and May 2010, the claim is barred by the final judgment in
the state court action.

The deliberate indifference issue is

identical in both actions; the issue was actually litigated and
was essential to a final decision on the merits; plaintiff had a
full and fair opportunity to be heard; the party to be precluded
is the same; and the prior proceeding is entitled to preclusive
effect.

See Nelson v. Emerald People's Util. Dist., 318 Or. 99,

104, 862 P.2d 1293, 1296-97 (1993).
II.

Failure to Exhaust State Administrative Remedies

Defendants also move to dismiss claims for failure to exhaust
administrative remedies.

Because defendants are entitled to

judgment on the pleadings, I need not address this issue.
CONCLUSION

Defendants' motion for judgment on the pleadings (#37) is
granted with prejudice.

Plaintiff's motions (##35, 36, 45, 51),

and defendants' motion for stay (#41) are denied as moot.
IT IS SO ORDERED.
DATED this

z~

OWEN M. PANNER
U.S. DISTRICT JUDGE
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