Lee v. Cain

Filing 85

ORDER: Defendants' Motion for Summary Judgment 58 is Granted. The Clerk shall enter a judgment of dismissal. Signed on 6/26/19 by Magistrate Judge Jolie A. Russo. **8 PAGE(S), PRINT ALL** (Derryel Lee, Prisoner ID: 4084406) (gm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
2:17-cv-42-JR

DERRYEL LEE,
Plaintiff,

ORDER
v.
GARTH GULICK, et al.,
Defendants.
Russo, Magistrate Judge:
Pro se plaintiff, an inmate at Snake River Correctional Institution (SRCI), brings this civil
rights action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement.
BACKGROUND
Plaintiff alleges he has suffered from pain and numbness in his legs, back and neck for
years and that
The doctors at the Oregon Department of Corrections at Snake River Correctional
Institution, namely Dr. Gulick, Dr. Koltes and Chief Medical Officer Dr. Steven
Shelton from Salem, the Therapeutic Level Committee (TLC), nurses Wick, Curtis
and White and officer Defrance, with deliberate indifference and wanton infliction
of pain, have failed to provide proper and accepted standard medical diagnosis and
treatment for a serious medical problem that would alleviate Mr. Lee's pain. They

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have unnecessarily added to the pain, anxiety and suffering by allowing this
condition to persist, having an adverse effect on his daily activities.
Amended Complaint (doc. 13) at p. 2.
Plaintiff further alleges diagnosis using X-rays have revealed no source for his pain and
that his requests for further testing including MRIs and CT scans have been denied. Id. In addition,
plaintiff asserts he has been denied referral to a specialist. Id.
Plaintiff alleges despite suffering excruciating pain for two years, the only remedies
prescribed have been “stretching, multiple NSAIDS, and Tramadol, which exacerbated painful
skin lesions due to an allergic reaction.” Id.at p. 3. Moreover, plaintiff asserts he has requested
further diagnosis to find the cause of his pain and has been told by Dr. Gulick that, "the pain is all
in your head", "there is nothing we will do about it", "the DOC will not pay for anything" and by
staff that "He is only looking for the drugs.". Id.at p. 3-4.
Plaintiff seeks $2,000,000 in damages1 and a “proper diagnosis and treatment for both
physical and mental conditions.” Id. Plaintiff further requests “that a restraining order be put in
place preventing Dr. Garth Gulick and Dr. Koltes from having anything to do with his continuing
medical needs.” Id.at p. 5.
DISCUSSION
Plaintiff has an Eighth Amendment right to necessary medical treatment. See Estelle v.
Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat his medical
needs”); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (“Prison officials have a duty to
ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and
personal safety.”). To sustain a claim based on inadequate medical treatment, plaintiff must

1

Plaintiff has not alleged a claim against any defendant in their individual capacities. Accordingly, the Eleventh
Amendment bars any claim for money damages. See, e.g., Koch v. Jester, 2013 WL 6422276, at *5 (D. Or. Dec. 9,
2013).

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establish the existence of “a serious medical need” and show that defendant’s “response to the
need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A serious
medical need exists if “the failure to treat a prisoner’s condition could result in further significant
injury or the ‘unnecessary and wanton infliction of pain.’” Id. (citation omitted).
Prison officials may demonstrate deliberate indifference by denying, delaying, or
intentionally interfering with medical treatment, or by the way in which medical treatment is
provided. Id.; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). Mere difference of medical
opinion does not establish deliberate indifference. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.
2002).
A.Undisputed Facts
The undisputed facts,2 viewed in a light most favorable to plaintiff demonstrate the
following:
1.

Pain Treatment
Upon intake at SRCI, plaintiff received a physical screening exam on May 29, 2003.

Declaration of Bryon Hemphill, M.D., in Support of Motion for Summary Judgment (doc. 59) at
¶ 6. Plaintiff identified a history of joint pain, prior surgery on his back and knees, and a history
of an on-going eczema skin condition. Id.
On January 21, 2015, the Therapeutic Level of Care Committee (Committee) approved a
regimen of Tramadol (an opiate pain medication) for six months to relive plaintiff’s joint pain. Ex.
1 to Hemphill Declaration (ODOC Medical Chart) at pp. 123, 780-81. On July 20, 2015, the

2

Defendants submit the declaration of Bryon Hemphill, M.D., along with the medical records of plaintiff’s
treatment while incarcerated. In response to the motion for summary judgment, plaintiff offers only his own
argument and does not point the court to any records to support his claims.

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Committee approved another six-month regimen of Tramadol because the medication appeared to
be effective at treating plaintiff’s pain. Hemphill Declaration at ¶ 10.
However, defendants discontinued Tramadol on August 25, 2015 in an abundance of
caution because plaintiff complained of a skin rash. Id. at ¶ 11. At this time, defendants provided
plaintiff with access to non-aspirin pain medication three times a day as needed for pain
management. Id. Defendants also provided plaintiff with Desipramine to treat depression from
October 14, 2015 to October 21, 2015.
On December 10, 2015, defendants prescribed Toradol, a non-steroidal anti-inflammatory
drug, to treat plaintiff’s joint pain. Id. at ¶ 13. Indeed, defendants note plaintiff was continuously
provided with medication to treat his on-going pain such as: Gabapentin to treat nerve pain
prescribed on January 4, 2016, April 25, 2016, and May 18, 2016; Toradol prescribed on January
15, 2016; Norco from March 7, 2016 to March 17, 2016, and June 17, 2016 to July 8, 2016; and
Neurontin prescribed on April 22, 2016. Id. at ¶ 14.
On August 13, 2016, the Committee increased plaintiff’s Norco prescription. Id. at ¶ 15.
Pain and depression medication prescriptions continued in December 2016, January 2017, and
March 2017. Id. at ¶ 16.
On June 30, 2017, plaintiff received approval for a lower sleeping bunk to reduce joint pain
aggravation, and the Committee again approved additional pain medication.

Id. at ¶ 17.

Defendants continued plaintiff’s prescription for Gabapentin on July 25, 2017, Neurontin on
August 23, 2017, Toradol on October 18, 2017, and Norco from November 17 to December 11,
2017. Id. at ¶ 18.

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2. MRIs and CT Scans
On January 21, 2015, plaintiff received an MRI of his cervical and lumbar spine from an
outside medical facility in Idaho which was used to help treat his back pain. Declaration of Bryon
Hemphill, M.D., in Support of Motion for Summary Judgment (doc. 59) at ¶ 21 and Ex. 1 to
Hemphill Declaration (ODOC Medical Chart) at pp. 654-55. Plaintiff received another series of
MRIs of his spine on December 14, 2015 showing no changes. Id. at ¶ 22, Ex. 1 at 651-53.
On February 18, 2016, plaintiff had an MRI of his left hip, showing degenerative issues,
but no acute injuries, after he reported pain due to a fall. Id. at ¶ 23, Ex. 1 at p. 650.
On March 28, 2016, an MRI of plaintiff’s chest was taken, after he reported shortness of
breath and weakness, showing no issues. Id. at ¶ 24, Ex. 1 at p. 649.
On June 6, 2016, plaintiff received an MRI of his left shoulder and arm, following
complaint of joint pain, which showed chronic degenerative changes, but no fractures or
dislocation. Id. at ¶ 25, Ex. 1 at pp. 646-48. On this date, an MRI of plaintiff’s neck and cervical
spine showed mild spinal canal narrowing. Id. at ¶ 26, Ex. 1 at pp. 644-45. A further MRI was
conducted on January 4, 2018. Id. at ¶ 32.
Although the Committee approved a CT scan of plaintiff’s cervical spine, on October 8,
2016, plaintiff refused the appointment because he was only offered something to relax him rather
than “put [him] out.” On November 26, 2016, and January 13, 2017, plaintiff again refused CT
scans. Id. at ¶¶ 27-30. Plaintiff finally underwent a CT scan of his cervical on March 14, 2017.
Id. at ¶ 31, Ex. 1 at pp. 637-38.
3. Outside Referrals
Plaintiff has received significant treatment outside of the SRCI facility including the MRIs
and CT scans noted above. In addition, on February 12, 2015, plaintiff received an intra-articular

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facet steroid injection in his spine by Dr. Christian Gussner of Idaho Physical Medicine and
Rehabilitation. Id. at ¶ 36, Ex. 1 at p. 1099. On April 1, 2015, plaintiff was referred to Dr. Brock
Anderson, a dermatologist at Snake River Dermatology in Fruitland, Idaho. Id. at ¶ 37. Moreover,
SRCI physicians have consulted with neurosurgeons regarding joint and spine pain, including Dr.
Richard Zimmerman and Dr. Kenneth Little. Id. at ¶¶ 39-40.
4. Skin Condition Treatment
As noted above, plaintiff identified a history of an on-going eczema skin condition during
his prison intake. Also as noted above, plaintiff has been referred to an outside dermatologist for
treatment. Medical staff have provided plaintiff with directions to minimize eczema breakouts.
Id. at ¶ 43.
On February 17, 2015, plaintiff complained of an allergic skin rash reaction to the
medication Flomax. In response to plaintiff’s grievance, the medical director noted that the rash
began before taking Flomax and that the complaints continued after plaintiff stopped taking the
medication. Id. at ¶ 47, Ex. 3 at pp. 1-2.
During his visit to Snake River Dermatology, Dr. Anderson found no medical evidence
that plaintiff’s skin condition was related to any medication and prescribed Triamcinolone cream
and Clobetasole to reduce swelling, itching, and individual lesions. Id. at ¶ 48. In addition, during
this appointment, a skin biopsy was taken which also failed to demonstrate any relationship
between plaintiff’s skin condition and his medications. The test showed the condition was more
consistent with neurodermatitis.

Plaintiff received a prescription of Hibiclens along with

instructions for use. Id. at ¶ 49.
On August 13, 2015, plaintiff filed a grievance asserting Tramadol caused an allergic skin
reaction. The medical director noted Dr. Anderson’s evaluation showed no link between his skin

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reaction and Tramadol, however, Dr. Anderson agreed to discontinue Tramadol in an abundance
of caution. Id. at ¶¶ 50-52.
B. Plaintiff Fails to Demonstrate a Violation of the Eight Amendment
Plaintiff asserts defendants “continued to push the use of Tramadol even though his prior
records would show that … there were previous examples of these recurring [skin lesions] when
treated with Tramadol,” and that the dermatologist determined the two issues were related.
However, plaintiff provides no support for these assertions and indeed the record before the Court
directly contradicts them. Plaintiff also asserts the pain treatment offered was not effective and is
“constantly withheld.” Again, plaintiff offers no evidence to support these assertions and, in fact,
the record shows significant ongoing pain treatment including the prescriptions of a variety of
narcotic pain medications. Finally, plaintiff concedes he has in fact received MRIs and CT scans
as well as outside treatment, but now complains he suffers “tremendous pain just being delivered
for transport.”3
To the extent plaintiff alleges deliberate indifference based on the course of treatment
chosen by defendants, plaintiff must set forth facts showing that his treatment “was medically
unacceptable under the circumstances” and was chosen “in conscious disregard of an excessive
risk” to plaintiff’s health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citations
omitted). Given defendants’ response to plaintiff’s complaints and the efforts undertaken to
manage his pain and skin condition, plaintiff cannot do so.
Even if defendants’ chosen course of treatment could be considered negligent due to
plaintiff’s continued complaints, mere negligence in diagnosing or treating medical conditions

3

Plaintiff did not allege deliberate indifference related to transport for outside treatment and tests in his Amended
Complaint. Plaintiff alleged only that MRIs and CT scans have been denied and that no referrals to specialists have
been made.

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does not amount to deliberate indifference in violation of the Eighth Amendment. Gamble, 429
U.S. at 105-06 (holding that “a complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment”). Accordingly, plaintiff fails to establish “a purposeful act or failure to respond” to
his serious medical needs, Jett, 439 F.3d at 1096.4
Because plaintiff fails to establish a violation of his constitutional rights, he is not entitled
to the requested injunctive relief and defendants’ motion for summary judgment is granted.
CONCLUSION
Defendants’ motion for summary judgment (doc. 58) is granted. The Clerk shall enter a
judgment of dismissal.
DATED this 26th day of June, 2019.
/s/ Jolie A. Russo
________________________________
JOLIE A. RUSSO
United States Magistrate Judge

4

Defendants also assert they are entitled to qualified immunity. Even if plaintiff could establish his medical
treatment was constitutionally deficient, his claim still fails. It is not clearly established that treating pain and skin
conditions with a variety of medications including narcotics and relying on outside consultations and tests amounts
to cruel and unusual punishment in the face of continued complaints from plaintiff. See Saucier v. Katz, 533 U.S.
194, 201-02 (2001).

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