McCright v. Beamer et al
Filing
76
Opinion and Order: Because McCright has failed to exhaust his administrative remedies on his urinary tract issue, and because he has failed to demonstrate that a genuine issue of fact exists regarding his claim of deliberate indifference, I GRANT su mmary judgment on both claims with leave to amend. McCright has thirty (30) days in which to file an amended complaint. McCright is advised that failure to file an amended complaint within the allotted time will result in the entry of a judgment of dismissal. Signed on 5/17/2019 by Judge Michael W. Mosman.(Mailed to Pro Se party on 5/17/2019.) (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
LARRY McCRIGHT,
Plaintiff,
No. 2: 17-cv-00942-MO
V.
OPINION AND ORDER
DR. LELAND BEAMER et al.,
Defendants.
MOSMAN,J.,
This action comes before me on Defendants' Motion for Summary Judgment [43]. For
the following reasons, I GRANT Defendants' Motion for Summary Judgment.
BACKGROUND
Plaintiff LaiTy McCright is a prisoner in the custody of the Oregon Department of
Corrections (ODOC), currently housed at the Eastern Oregon Correctional Institution (EOCI) in
Pendleton. McCright is suing prison officials in their individual and official capacities for
violating his Eighth Amendment rights by denying or delaying medical care for a urinary tract
issue and a heart murmur issue (Degenerative Valvular Heart Disease-DVHD). I previously
denied McCright's Motion for a Preliminary Injunction [23] based on his failure to demonstrate a
likelihood of success on the merits and failure to show he is likely to suffer irreparable injury if a
preliminary injunction did not ensue. Order [31]. Following that denial, Defendants moved for
summary judgment.
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LEGAL STANDARD
A comi shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). While the movant has the burden of showing that no genuine issue of fact
exists, the nonmoving paiiy "may not rest upon the mere allegations or denials of his pleading,
but must set fo1ih specific facts showing that there is a genuine issue for trial." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (quoting Fed. R. Civ. P. 56(e)). The initial burden
is on the moving paiiy to show that no genuine issue of material fact exists. Celotex C01p v.
Catrett, 477 U.S. 317,323 (1986). Once that burden is met, the burden shifts to the non-moving
party to show through the production of evidence that an issue of fact remains to be tried. Id at
324.
DISCUSSION
1. Failure to Exhaust Administrative Remedies
Defendants first argue that McCright did not exhaust the ODOC's grievance procedure
requirements for his urinary tract issues. The Prison Litigation Refo1m Act requires prisoners to
exhaust all available remedies before filing a§ 1983 action. Porter v. Nussle, 534 U.S. 516, 524,
532 (2002). McCright has filed several grievances related to his DVHD issue, but none related
to his urinary tract issues. Defendants acknowledge that one grievance filed may refer to the
urinary tract issues, but that grievance was filed after the filing of the complaint in this suit and
has not been exhausted. Due to this failure to exhaust his administrative remedies, I agree with
Defendants and GRANT summary judgment on McCright' s urinary tract issues.
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2. Failure to Siifficiently Plead Deliberate Indifference
In order to prevail on a claim of the denial of adequate medical care in violation of the
Eighth Amendment, McCright must establish that Defendants were deliberately indifferent to his
"serious" medical needs. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000. Deliberate
indifference is shown only where an official "knows of and disregards an excessive risk of
inmate health and safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). A difference of
medical opinion between doctors over medical treatment does not amount to deliberate
indifference to a plaintiffs serious medical need. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989).
McCright's contentions in his previous Motion for a Preliminary Injunction [23] are
relevant here. In that motion, and in his Complaint, he alleges that Dr. Lehr, an outside
physician, recommended an unknown medication and surgery to fix his DVHD. Dr. Beamer, a
physician specialist at EOCI, agrees that McCright has DVHD and will need surgery at some
point. Dr. Beamer is monitoring McCright's situation but does not think McCright needs
immediate surgery. McCright wants ODOC to implement Dr. Lehr's plan immediately, because
he is concerned failure to do so will lead to pain and risk of death. Unfortunately, McCright has
not submitted any evidence supporting this contention. The medical records he submitted with
his Motion for Preliminary Injunction do not support this. Dr. Beamer's Declaration [28] states
that there are no signs of deterioration ofMcCright's DVHD and nothing to show that surgery
should be performed immediately. McCright submitted a study performed by Dr. Lehr in 2018
stating that McCright's heart shows "no significant changes noted in comparison to the previous
echocardiographic study" conducted in 2017. McCright Deel. [24] Exhibit Bat 11.
McCright' s argument for deliberate indifference is based on an alleged disagreement in
3 - OPINION AND ORDER
treatment plans between Dr. Lehr and Dr. Beamer. McCright also alleges that Defendants have
been deliberately indifferent to his heart condition by not permitting immediate surgery, which
McCright fears may cause pain and long-te1m damage. Even if a difference in the opinions of
Drs. Lehr and Beamer existed, a difference of medical opinion cannot amount to deliberate
indifference. Further, I found in my previous order [31] that McCright has not submitted any
evidence suppmiing his contention that serious harm may result without the immediate treatment
he desires but has in fact submitted evidence suppo1iing the opposite contention. For these
reasons, I GRANT summary judgment on the issue of McCright' s heaii condition, with leave to
amend.
CONCLUSION
Because McCright has failed to exhaust his administrative remedies on his urinary tract
issue, and because he has failed to demonstrate that a genuine issue of fact exists regarding his
claim of deliberate indifference, I GRANT summary judgment on both claims with leave to
amend. McCright has thi1iy (30) days in which to file an amended complaint. McCright is
advised that failure to file an amended complaint within the allotted time will result in the entry
of a judgment of dismissal.
DATED this ¥ d a y of May, 2019.
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