Landingham v. Peters et al

Filing 42

ORDER: The Court GRANTS Defendants' Motion 29 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 04/29/2014 by Judge Anna J. Brown. See attached 13 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PAUL A. LANDINGHAM,
Plaintiff,

v.
COLETTE PETERS, Director;
STEVE SHELTON, Medical
Director; WILLIAM HOEFEL,
Health Services Director;
DR. NORTON, CMO-TRCI; LINDA
GRUENWALD, ARNP-TRCI;
DR. DIEL, TLOC-DOC Member;
DR. DIGIULIO, TLOC Member;
DR. VAN HOUTEN, TLOC Member;
H. MILLER, NP, TLOC Member;
TWO RIVERS CORRECTIONAL
INSTITUTION MEDICAL STAFF (in
all) ; EASTERN OREGON
CORRECTIONAL INSTITUTION
MEDICAL STAFF (in all); MIKE
GOWER, Director of
Operatives; M.E. PERKINS,
R.N. TRCI; MANAGER B. WHELAN,
Nurse Manager, TRCI; MITCH
MORROW; S . FRANKE ,
Superintendent TRCI,
Defendants.

1 - OPINION AND ORDER

2:13-CV-00532-BR
OPINION AND ORDER

PAUL A. LANDINGHAM
#17142542
Deer Ridge Correctional Institution
3920 East Ashwood Road
Madras, OR 97741
Plaintiff, Pro Se
ELLEN ROSENBLUM
Attorney General
ROBERT E. SULLIVAN
Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301
[phone]
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendants' Motion
(#29)

for Summary Judgment.

For the reasons that follow, the

Court GRANTS Defendants' Motion.

BACKGROUND
On March 28, 2013, Plaintiff Paul Landingham, an inmate at
Deer Ridge Correctional Institution, filed a pro se Complaint in
this Court pursuant to 42 U.S.C. § 1983 in which he alleges
Defendants have been deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment to the United
States Constitution by denying him appropriate medical care and
treatment for his preincarceration lumbar fusion, bilateral hip
surgery, and history of blood clots.

2 - OPINION AND ORDER

Specifically, Plaintiff

alleges Defendants (1) have denied him the use of a cane,
(2) have denied him a thick or ftdouble mattress,n (3) have failed
to provide him with an appropriate dosage of Coumadin, and
(4) have not been sufficiently responsive to his complaints of
chronic pain.
On January 13, 2014, the Court issued a Summary Judgment
Advice Notice to Plaintiff advising him that if he did not submit
evidence in opposition to Defendants' Motion for Summary
Judgment, summary judgment would be entered against him if it was
appropriate.
On February 10, 2014, Plaintiff filed a Response to
Defendants' Motion that contained three pages of argument and a
copy of his Complaint.

On March 28, 2014, Plaintiff filed a Sur-

Reply containing one page of additional factual allegations.
Court took this matter under advisement on March 28, 2014.

STANDARDS

Summary judgment is appropriate when ftthere is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.

n

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F. 3d 1142, 1146 (9th Cir. 2005).

3 - OPINION AND ORDER

In response to a properly

The

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

Id.

"This burden is not a light one.

The non-moving party must do more than show there is some

In re

'metaphysical doubt' as to the material facts at issue."

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F. 3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.

v. Verity, Inc., 606 F. 3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F. 3d 948, 957

Easter v. Am. W. Fin.,

(9th Cir. 2004) (citation omitted).

A "mere

disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."

Deering v. Lassen Cmty. Call. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F. 2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
4 - OPINION AND ORDER

evidence than otherwise would be necessary."
v.

Brekka,

LVRC Holdings LLC

581 F. 3d 1127, 1137 (9th Cir. 2009) (citation omitted).

The substantive law governing a claim or a defense
determines whether a fact is mater'ial.
Prod.,

Inc.,

454 F. 3d 975, 987

Miller v.

(9th Cir. 2006).

Glenn Miller

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
I .

Standards
Deliberate indifference to serious medical needs is a

cognizable claim for violation of the Eighth Amendment
proscription against cruel and unusual punishment.
Gamble,

429 U.S. 97, 104 (1976).

Estelle v.

See also Actkinson v.

Vargo,

284 F. App'x 469, 472 (9th Cir. 2008).
To sustain [a] deliberate indifference claim, [a
plaintiff must) meet the following test:
"First,
the plaintiff must show 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.
Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent."
Peralta v.

Dillard,

No. 09-55907, 2013 WL 57893, at *3 (9th Cir.

Jan. 7, 2013) (quoting Jett v. Penner,
Cir. 2006)).

439 F.3d 1091, 1096 (9th

To satisfy the second prong (i.e., that defendant's

response to the need was deliberately indifferent), a plaintiff
5 - OPINION AND ORDER

must show there was "'(a) a purposeful act or failure to respond
to a prisoner's pain or possible medical need and (b) harm [was)
caused by the indifference.'"
1096) .

Id.

(quoting Jett,

439 F.3d at

Deliberate indifference may be established by showing

that prison officials have denied, delayed, or intentionally
interfered with medical treatment or it may be demonstrated by
the way that prison officials have provided medical care.

Jett,

439 F.3d at 1096.
"Mere negligence in diagnosing or treating a medical
condition, without more, does not violate a prisoner's Eighth
Amendment rights."

Toguchi v. Chung, 391 F. 3d 1051, 1057 (9th

Cir. 2004) (citation omitted).

See also Wilhelm v. Rotman, 680

F.3d 1113, 1122 (9'" Cir. 2012) ("Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.").

In addition, "a plaintiff's showing of nothing more

than a difference of medical opinion as to the need to pursue one
course of treatment over another [is] insufficient, as a matter
of law, to establish deliberate indifference."

Wilhelm,

680 F.3d

at 1122 (quotation omitted).

II.

Analysis
As noted, Plaintiff contends Defendants have been

deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment by denying him the use of a
cane and a double-thick mattress, by failing to provide him with

6 - OPINION AND ORDER

an appropriate dosage of Coumadin, and by being insufficiently
responsive to Plaintiff's complaints of chronic pain.

A.

Denial of a cane and double-thick mattress
Plaintiff alleges in his Complaint that his leg gives

out while walking due to his back and hip problems and Defendants
have improperly denied him the use of a cane and a double-thick
mattress.
Plaintiff's treating physician, Steve Shelton, M.D.,
testifies in his Declaration that Plaintiff's requests for a cane
and double-thick mattress have not been granted because there is
not any evidence of a medical reason for either of these items.
Dr. Shelton states Plaintiff "does not appear to have significant
mobility issues," and Plaintiff's "observed physical activities
do not support his claims of chronic disabling pain."
Steve Shelton a t ] 6.

Decl. of

For example, Plaintiff's medical records

reflect Plaintiff went to sick call on March 21, 2012, and
reported serious back pain and left leg numbness that were
getting progressively worse.

Shelton Decl., Ex. 2 at 87-88.

Plaintiff, however, also reported doing upper-body stretches and
walking three miles per day.

Id.

Similarly, in June 2012

security staff reported Plaintiff lifted weights and walked the
track without apparent difficulty during yard time.
Decl., Ex. 2 at 92-93.

Shelton

In August 2012 medical staff observed

Plaintiff playing hacky-sack in his housing unit without pain.

7 - OPINION AND ORDER

Shelton Decl., Ex. 2 at 98.

Finally, Dr. Shelton notes there are

repeated reports in Plaintiff's medical record that medical staff
and others saw Plaintiff ambulating without difficulty throughout
2012 and 2013.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds no reasonable juror could conclude on
this record that Defendants have been deliberately indifferent to
Plaintiff's serious medical needs by denying him a cane and a
double-thick mattress.

Plaintiff, therefore, has not established

Defendants violated Plaintiff's rights under the Eighth
Amendment.

B.

Coumadin
Plaintiff contends Defendants have been_deliberately

indifferent to his serious medical needs by failing to provide
him with what he believes is a sufficient dose of Coumadin for
his blood-clotting condition.
Dr. Shelton testifies in his Declaration that Plaintiff
has been prescribed Coumadin since his admission to the Oregon
Department of Corrections (ODOC), and Plaintiff's
Medication Administration Records (MARs) indicate
he receives his Coumadin daily.
Lab results show
the international normalized ratio (INR) (measure
of clotting tendency) level used to monitor
Coumadin is within the standard dose range.
Shelton Decl. at

~

28.

Dr. Shelton's Declaration is supported by

Plaintiff's medical records.

8 - OPINION AND ORDER

See Shelton Decl., Ex. 2 at 173-

282, 306-679.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds no reasonable juror could conclude on
this record that Defendants have been deliberately indifferent to
Plaintiff's serious medical needs with respect to the
administration of Coumadin.

Plaintiff, therefore, has not

established Defendants violated Plaintiff's rights under the
Eighth Amendment.

C.

Chronic pain
Plaintiff contends Defendants have been deliberately

indifferent to his serious medical needs by failing to properly
address Plaintiff's complaints of chronic pain related to his
lumbar fusion and bilateral hip surgery.
Dr. Shelton testifies in his Declaration that there is
not any objective medical evidence to support Plaintiff's claims
of severe, chronic pain.

Dr. Shelton notes Plaintiff's

complaints do not correspond to the objective observations of
medical staff.

Specifically Dr. Shelton notes:
Plaintiff was seen by Health Services staff for an
intake examination on November 16, 2011.
He
complained that his housing unit was too far from
Health Services to walk the distance three times a
day to medication line due to back pain and heart
problems. He claimed the walk left him feeling
like he would pass out. A medical provider was
consulted and determined there was no medical
reason for a change in [Plaintiff's) housing
assignment. An appointment with a provider was
scheduled.

9 - OPINION AND ORDER

On November 17, 2011, [Plaintiff) was examined by
Nurse Practitioner Linda Gruenwald, who determined
there was no medical reason to restrict or change
his housing assignment.
In regard to his history
of prior back surgery, and his current complaints
of pain, Nurse Practitioner Gruenwald requested an
MRI of his low back.
[Plaintiff)
. has been observed many times
ambulating without difficulty and demonstrated
only a slight left leg limp when talking to
providers about left leg pain and numbness.
Shelton Decl.

at~~

12-14.

As noted, Nurse Gruenwald requested Plaintiff undergo
an MRI on November 17, 2011.

On December 2, 2011, Plaintiff

underwent an MRI, which showed Plaintiff had prior surgery on and
"fixation" of discs LS-Sl, disc protrusions at L3-L4 and L4-L5
"without neural foramina compromise," and "possible nerve effect
in the lateral recess of L3-L4 and L4-L5."
at 300-01.

Shelton Decl., Ex. 2

Based on the MRI results, Nurse Gruenwald asked David

Yam, M.D., Neurosurgeon , to consult on Plaintiff's condition.
On December 27, 2011, Dr. Yam recommended Plaintiff
undergo physical therapy and epidural injections for his back
problems.

Dr. Yam, however, recommended against surgery because

"a revision and extension of [Plaintiff's) fusion will be a major
undertaking requiring extensive surgery, loss of mobility, and 6
month recovery."

Shelton Decl., Ex. 2 at 865.

Dr. Shelton

testifies in his Declaration that at the time Dr. Yam recommended
against surgery for Plaintiff, Dr. Yam did not have Plaintiff's
medical history that reflected several conditions that would
10 - OPINION AND ORDER

further increase the risk of complication s from surgery:

a prior

pulmonary embolism, high blood pressure, diabetes, a weight
greater than 330 pounds, a blood-clottin g condition, and cardiac
concerns.

Shelton Decl., at

~

17.

Plaintiff received three epidural injections in May and
June 2012, but he reported he did not feel any improvement in his
pain level.

Nevertheless , as noted, the record reflects security

and medical staff reported throughout June that Plaintiff was
able to ambulate without difficulty, lifted weights, and walked
the track.
On July 12, 2013, Dr. Shelton examined Plaintiff.

At

that time, Plaintiff expressed a desire for increased pain
medications, complained of leg and hip pain, and provided a
medical history that included pins in his legs and prior back
surgery.

Shelton Decl. at

~

23; Ex. 3 at 3-4.

Dr. Shelton noted

Plaintiff's leg fracture and pinning was 20 years earlier and did
not extend into Plaintiff's hip joint.

Moreover, Plaintiff

reported the pinning did not cause him pain.

Id.

The record

reflects Plaintiff resisted motion in all directions during his
low-back examination, and Dr. Shelton reported Plaintiff's
strength exam was "complicated by high variability in his effort
and cooperation.n

Id.

Based on his recollection and Plaintiff's

medical records, Dr. Shelton testified:
With multiple different forms of examination,
passive and active, distracted and observationa l,
11 - OPINION AND ORDER

I was unable to find any demonstrable weakness.
He showed no evidence of being off balance
(Rhomberg normal) and could walk heel-to-toenormally.
His limp seemed to appear and
disappear. Overall, my opinion was low back pain
probably of an arthritic nature, especially given
his morning stiffness, his weight, and his prior
surgery.
Shelton Decl. at

~

23.

Nevertheless , Dr. Shelton reviewed

Plaintiff's 2011 MRI and requested a second MRI for comparison.
On October 28, 2013, Plaintiff underwent a second MRI,
which showed Plaintiff's "bony alignment• at L5-Sl was unchanged,
the disc protrusion at L3-L4 was unchanged, no stenosis at Ll-L2
or L2-L3, "no significant neuroforamin al stenosis at L3-L4, mild
neuroforamin al narrowing at L4-L5, and no nerve root compromise
at L4-L5.•

Shelton Decl., Ex. 3 at 9-10.

Dr. Shelton testified

in his Declaration that these results showed "no progression [of
Plaintiff's condition] with perhaps even some less appearance of
nerve involvement. •

Shelton Decl. at

~

24.

The record reflects Plaintiff was seen frequently by
medical staff and received various pain medications, x-rays,
MRis, and steroid injections.

In addition, Plaintiff was seen by

a consulting neurosurgeon who recommended physical therapy and
epidural injections rather than surgery.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds no reasonable juror could conclude on
this record that Defendants were deliberately indifferent to
Plaintiff's serious medical needs with respect to Plaintiff's
12 - OPINION AND ORDER

chronic pain.

Plaintiff, therefore , has not establishe d

Defendant s violated Plaintiff 's rights under the Eighth
Amendment .
According ly, on this record the Court grants Defendant s'
Motion for Summary Judgment.

CONCLUSION

For these reasons, the Court GRANTS Defendant s' Motion (#29)
for Summary Judgment and DISMISSES this matter with prejudice .
IT IS SO ORDERED.
DATED this 29th day of April, 2014.

ANNA J. BROWN
United States District Judge

13 - OPINION AND ORDER