Lujan v. Oregon Department of Corrections et al

Filing 35

OPINION AND ORDER: Although the fugitive disentitlement doctrine does not apply here, I grant Defendants' Motion for Summary Judgment because Lujan's claims against Defendants in their official capacities fail under the Eleventh Amen dment. Furthermore, I find the government officials named as defendants in this case are entitled to qualified immunity, as I found no violation of Lujan's Constitutional rights. I dismiss without prejudice Lujan's state claims. Signed on 4/2/2019 by Judge Robert E. Jones.(Mailed to Pro Se party on 4/2/2019.) (joha)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PENDLETON DIVISION
MICHAEL LUJAN,
Plaintiff,
V.

OREGON DEPARTMENT OF
CORRECTIONS, CHRIS DIGIULIO,
DR. PATTON, MICHAEL F. GOWER,
COLLETTE PETERS, DR. DANIEL
DEWNSNUP, DR. NORTON, DR. YIN,
DR. DAVIES, DR. BEAMER, TROY
BOWSER, ILES, EYNON, MONTOYA,
J. BUGHER, MS. B. WHELAN, J.
DAFOE,
Defendants.

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Case No. 2:17-cv-01726-JO
OPINION AND ORDER

JONES, District Judge:
Plaintiff Michael A. Lujan, acting pro se, brought this prisoner civil rights
action pursuant to 42 U.S.C. § 1983. His six claims arise from the medical care he
received while incarcerated at the Two Rivers Correctional Institution (TRCI) in Umatilla,
Oregon. He alleges that the Oregon Department of Corrections (ODOC) and its
employees Dr. Christopher DiGiulio, Dr. Mark Patton, Michael Gower, Dr. Bennette
Norton, Dr. Qiang Yin, Michelle Davies, Dr. Leland Beamer, Dr. Daniel Dewsnup,
Bridgett Whelan, Joe DaFoe, and Joseph Bugher, violated his Eighth and Fourteenth
Amendment rights when they acted with deliberate indifference to his medical needs.
He also contends that Colette Peters, Michael Gower, Arnell Eynon, Nicole Montoya,
Sherry lies, and Troy Bowser violated his First and Fourteenth Amendment rights by

I Opinion and Order

"erecting barriers designed to [prevent] the plaintiff from completing the requirement of
grievance exhaustion." (Doc #2, p. 23). In addition, Lujan alleges four state tort claims
against various named defendants, alleging physical and financial abuse, breach of
contract, medical malpractice, and negligence. Lujan seeks declaratory and injunctive
relief, monetary damages for economic and non-economic losses, as well as punitive
damages for these claims.
Defendants filed a motion for summary judgment [#19]. For the following
reasons, the defendants' motion is GRANTED as to all claims.

Legal Standard

1. Summary Judgment
Summary judgment is proper where pleadings, discovery and affidavits show
there is "no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The district court should grant
summary judgment if there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If the moving party
shows that there are no genuine issues of material fact, the burden shifts to the nonmoving party to "go beyond the pleadings and by [his] own affidavits or by the
'depositions, answers to interrogatories and admissions on file,' designate specific facts
showing that there is a genuine issue for trial. Celotex Corp. V. Catrett, 477 U.S. 317,
322-24 (1986). A scintilla of evidence, or evidence that is merely colorable or not
significantly probative, does not present a genuine issue of material fact. United

2 Opinion and Order

Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989).

Reasonable doubts as to the existence of a material factual issue are resolved against
the moving party and inferences drawn from facts are viewed in the light most favorable
to the non-moving party. T. W Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630-31 (9th Cir. 1987). A prose plaintiff is to be held to a less stringent
standard than a plaintiff acting with assistance of counsel. Erickson v. Pardus, 551 U.S.
89, 95 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
2. Eighth Amendment Claim
The treatment a prisoner receives in prison is subject to scrutiny under the Eighth
Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment
imposes duties on prison officials to provide prisoners with basic necessities, including
medical care. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official violates
the Eighth Amendment when two requirements are met: (1) the deprivation alleged is
objectively, sufficiently serious, Farmer, 511 U.S. at 834, and (2) the prison official
possessed a sufficiently culpable state of mind. Id. The official must know of and
disregard an excessive risk to an inmate's health. Farmer, 511 U.S. at 837.
Discussion

1.

Background 1

1 There

are limited facts in this case. Accompanying his response to the Motion for
Summary Judgment, Lujan filed a Declaration in which he provides the bulk of the
evidence. Although the Declaration is not witnessed, Lujan states he ma[d]e "this
Affidavit under the penalty of perjury." [#33, p. 7-9]. Because Lujan is a prose litigant, I
construe his declaration as an Affidavit. To understand Lujan's claims against the
various defendants, I include allegations from Lujan's complaint, but do not construe the
complaint as an affidavit as it was not verified by Lujan. See, Schroeder v. McDonald,
55 F.3d 454,460 & nn.10-11 (9th Cir. 1995).
3 Opinion and Order

The case arises out of a settlement in a prior Section 1983 case filed by Lujan,
Lujan v. Gruewald, 2: 14 cv-01640-MO (D. Or.). Under the terms of the settlement, the
ODOC agreed to provide Lujan a one-time medical consultation with Dr. DiGiulio to
assess Lujan's complaints of low back pain. [#33, Ex. 3, p.2]. On April 24, 2017,
DiGiulio examined Lujan. DiGiulio noted a previous finding of a compression fracture
and recommended further diagnostic evaluation including a new x-ray, a nerve
conduction study and electromyogram (EMG), and a follow-up appointment to
determine a plan of care. [#33, Ex. 3, p.2]. At the time, Lujan had an active prescription
for a drug used for managing back pain and refused to take it. [#33, Ex. 3 p.2].
Approximately a month later, Lujan submitted grievance TRCI 2017-05-269 claiming
DiGiulio was deliberately indifferent to Lujan's serious medical need. 2
Lujan alleges that on May 31, 2018 he appeared at sick-call complaining of back
and leg pain and that Dr. Patton ordered Capzasin cream for the pain. A week later,
Lujan submitted grievance TRCI 2017-06-138 against Patton claiming Patton subjected
Lujan to unnecessary infliction of pain. 3
On June 27, Dr. Turner performed a nerve conductor test and an EMG on Lujan
as recommended by DiGiulio. Subsequently, Turner examined Lujan noting "evidence
of a chronic radiculopathy without signs of uncompensated denervation" and
recommended a lumbar MRI and a referral for an epidural steroid injection. [#33, Ex. 1].
The next day, Lujan wrote DiGiulio and provided him with a copy of Turner's findings.

2

Neither party submitted a copy of the grievance or the final disposition thereof, but
defendants do not argue that Lujan failed to exhaust his administrative remedies as to
this grievance. Viewing the facts in a light most favorable to plaintiff, I infer that plaintiff
exhausted his remedies as to this grievance.
3 See footnote 2.
4 Opinion and Order

DiGiulio did not respond. [#33, p. 7-8]. Lujan alleges that he wrote an inmate
communication form to Health Services Manager Whelan requesting that she address
his pain and she responded that she did not have the authority to do so.
In June, Patton gave Lujan a steroid injection. [#33, Ex. 3, p. 5]. On July 7,
Patton conducted the follow-up appointment after receiving Turner's findings. Lujan
complained of intense pain which Patton acknowledged and suggested Lujan use
Ibuprofen and other non-steroidal, anti-inflammatory drugs (NSAID). [#33, p. 8]. On
July 28, Lujan had an MRI that found a L4-5 bulging disc that abutted the L4 nerve root.
[#33, Ex.2]. Between July 28 and August 16, Lujan sent communications to Gower,
Peters, Bowser, DaFoe, and Bugher informing them that DiGiulio and Patton were
ignoring his complaints and requesting medical attention to treat the pain in his back
and leg. [#33, p.9].
Lujan alleges that on August 16, a committee including Dewsnup, DiGiulio,
Beamer, Yin, Davies, Norton, and Patton met to evaluate Lujan's course of treatment
and denied Lujan additional treatment. Lujan further alleges that he attempted to
submit grievances against the members of the committee but that the prison grievance
coordinators, Eynon and Montoya, refused to process the grievances. Eynon and
Montoya allegedly told Lujan that his 2014 Tort Claim Notice prevented them from
accepting further grievances regarding Lujan's back and leg pain. Lujan alleges he
wrote Gower and Peters regarding Eynon and Montoya's rejections of his grievances.
At an appointment with Patton on September 14, Lujan provided Patton with a list
of alternative treatments Lujan obtained through his own research. [#33, p. 9]. Patton
did not affirm the efficacy of the alternative treatments but opined that they were

5 Opinion and Order

probably too costly for the ODOC. [#33, p.9]. Lujan alleges that at his final medical
appointment with Patton before filing this complaint, Patton told Lujan that he would
receive an epidural injection within a couple of months.
After Lujan filed his complaint, defendants filed an answer in which they denied
all of Lujan's allegations and set forth affirmative defenses. [#14]. Thereafter,
defendants filed this Motion for Summary Judgment.
2.

Fugitive Disentitlement Doctrine

Defendants contend that Lujan's claims should be dismissed based on the
fugitive disentitlement doctrine. Lujan currently resides in California and is on abscond
status from post-prison supervision following his release from the TRCl. 4 The fugitive
disentitlement doctrine precludes a fugitive plaintiff from utilizing the resources of a
court for determination of his claims. Molinaro v. New Jersey, 396 U.S. 365 (1970).
The "fugitive disentitlement doctrine" is a "severe sanction ... not lightly
imposed." Antonio-Martinez v. INS, 317 F.3d 1089, 1091 (9th Cir.2003) (internal
quotations omitted). The typical case where a court dismisses an action based on the
fugitive disentitlement doctrine is where a defendant appeals a criminal conviction and
then absconds during the pendency of his or her appeal from the conviction.
See Antonio-Martinez, 317 F .3d at 1092.
The Supreme Court identifies several rationales underlying the disentitlement
doctrine: First, the difficulty of enforcing a judgment if the fugitive cannot be found;
second, the unfairness of allowing a party access to the courts while evading their

4

Lujan submitted a change of address form to the court and provided his California
address. [# 18]

6 Opinion and Order

jurisdiction; third, the need to discourage escape and encourage voluntary surrender;
and fourth, the desire to promote the "efficient, dignified operation of the courts." Degen
v. United States, 517 U.S. 820,824 (1996).
Regarding the first rationale, Lujan is the plaintiff here. There is little risk that a
judgment adverse to Lujan will be unenforceable. In addition, before invoking the
fugitive disentitlement doctrine, courts require a nexus between the proceeding to be
dismissed and the fugitive status. Walsh v. Walsh, 221 F.3d 204, 215 (1st Cir.2000).
That nexus exists when a criminal defendant flees while the direct appeal from his
conviction is pending. Defendants have not identified any nexus between Lujan's
alleged violation of post-prison supervision and his claims of inadequate medical care
while in prison. Also, courts generally require clear evidence that the person to be
sanctioned has fled or is in hiding. See Bhasin v. Gonzales, 423 F.3d 977 (9th Cir.
2005). While Lujan fled the jurisdiction, he is not in hiding. Lujan submitted a change of
address form and authorities know his location. Defendants' motion for summary
judgment the basis of the fugitive disentitlement doctrine is denied.
3.

Official Capacity

Defendants argue Lujan's claims against ODOC and individual defendants in
their official capacity are barred by the Eleventh Amendment. Absent a waiver by the
State or a valid congressional override, the Eleventh Amendment bars a damages
action against a State in federal court. See Ford Motor Co. v. Department of Treasury
of Indiana, 323 U.S. 459, 464 (1945). While defendants are correct that monetary relief
would not be available to Lujan, the Eleventh Amendment does not bar claims for

7 Opinion and Order

declaratory and injunctive relief against individuals in their official capacity. ACS of
Fairbanks, Inc. v. GCI Commc'n Corp., 321 F.3d 1215, 1217 (9th Cir. 2003).
However, Lujan lacks standing to pursue a claim for injunctive relief. Standing
for injunctive relief requires that a plaintiff show a "real and immediate threat of repeated
injury." O'Shea v. Littleton, 414 U.S. 488, 496 (1974). Lujan has not made such a
showing. He has been released from prison, and I assume he will not reoffend and
return to prison. See O'Shea, 414 U.S. at 497 ("We assume that respondents will
conduct their activities within the law and so avoid prosecution and conviction as well as
exposure to the challenged course of conduct said to be followed by petitioners."). I
also assume that, were he to return to prison, Defendants would continue to treat his
back and leg pain. I find no real or immediate threat of repeated injury to Lujan.
Similarly, this case is not suitable for declaratory judgment. "A case or
controversy exists justifying declaratory relief only when 'the challenged ... activity ... is
not contingent, has not evaporated or disappeared, and, by its continuing and brooding
presence, casts what may well be a substantial adverse effect on the interests of the
... parties."' Seven Words LLC v. Network Sols., 260 F.3d 1089, 1098-99 (9th Cir.
2001 ). While Lujan prays in his complaint for declaratory judgment, on close inspection
what he seeks is an adjudication of and remedy for past violations of federal law. Lujan
is no longer imprisoned at TRCI. He provides no basis on which to conclude
declaratory relief might affect Defendants' behavior toward him going forward.
Lujan's claims against Defendants in their official capacities fail under the
Eleventh Amendment.

8 Opinion and Order

4.

Qualified Immunity

Defendants argue that Lujan's suit is prevented by qualified immunity. The
doctrine of qualified immunity protects "government officials performing discretionary
functions ... from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 828 (1985). Qualified immunity is
immunity from suit, not merely a defense to liability. Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). To determine whether the government officials named as defendants in
this case are entitled to qualified immunity, the first relevant inquiry is whether the
officials violated Lujan's constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201
(2001 ). In particular, Lujan claims defendants violated his Eighth and Fourteenth
Amendment rights when they acted with deliberate indifference to his medical needs
and his First and Fourteenth Amendment rights by impeding his ability to file
grievances.
A.

Deliberate Indifference

The Ninth Circuit employs a two-part test for deliberate indifference. "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." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th
Cir. 2012), quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
As to the first part, the Ninth Circuit identifies three situations in which a medical
need is serious: (1) "[t]he existence of an injury that a reasonable doctor or patient

9 Opinion and Order

would find important and worthy of comment or treatment"; (2) "the presence of a
medical condition that significantly affects an individual's daily activities"; or (3) "the
existence of chronic and substantial pain." McGuckin v. Smith, 974 F.2d 1050, 1059-60
(9th Cir. 1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104
F.3d 1133 (9th Cir. 1997)(en bane). Lujan's medical scans and evaluations are
objective evidence implicating at least the first and third situations, since examining
doctors found his ailments "worthy of comment [and] treatment." Viewing the evidence
in the light most favorable to Lujan, he has raised a genuine dispute of material fact as
to whether his back pain constitutes a serious medical need.
However, moving to the second part of the analysis, Lujan fails to create a
genuine dispute of material fact as to whether the treating doctors or the supervisory
defendants were deliberately indifferent to his serious medical need. "A prison official is
deliberately indifferent under the subjective element of the test only if the official meets
the standard for criminal recklessness, i.e. 'knows of and disregards an excessive risk
to inmate health and safety."' Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014),
quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). "This 'requires more
than ordinary lack of due care."' Id., quoting Farmer v. Brennan, 511 U.S. 825, 835
(1994).
Lujan filed four exhibits with his response to the motion for summary judgment.
Regarding his treating physicians, DiGiulio and Patton, his exhibits show that, per the
terms of the settlement, DiGiulio examined Lujan one time. DiGiulio diagnosed Lujan
and recommended a nerve conductor test and an EMG be administered. Prison
officials provided those additional tests. Lujan refused to take the medicine prescribed

10 Opinion and Order

to alleviate his back pain. He was given a steroid injection and offered NSAIDs. During
the five-month course of treatment Lujan describes, he was examined no fewer than
seven times by medical personnel. Neither DiGiulio nor Patton's actions were "so
reckless as to be tantamount to a desire to inflict harm." To the contrary, they
empathized with Lujan's continuing pain and treated him with prescription and nonprescription medications, diagnostic procedures, and injections. Lujan received "due
care." I find Lujan's treating physicians, DiGiulio and Patton, were not deliberately
indifferent to Lujan's back pain and did not violate Lujan's Eighth Amendment
constitutional rights. Thus, they are entitled to qualified immunity.
Turning to the prison supervisors, Lujan contends that they were deliberately
indifferent because they knew that DiGiulio and Patton failed to address his back pain
and did nothing. The facts show that Lujan wrote to Gower, Peters, Bowser, DaFoe and
Bugher and informed them that DiGiulio and Patton were ignoring Lujan's complaints
and the supervisors did not respond to him or require DiGiulio or Patton to assist Lujan.
However, because Lujan experienced no constitutional deprivation in his medical care
on the part of his treating physicians, there is no supervisory liability. 5
B.

Inability to access grievance process

In his second claim for relief, Lujan claims that defendants Peters, Gower,
Eynon, Montoya, lies, and Bower violated his First and Fourteenth Amendment right to
access the courts when they refused to accept and process his grievances. Lujan's

5

Lujan's declaration identifies only Gower, Peters, Bowser, DaFoe, and Bugher as
recipients of his communications to supervisors. The first claim of his complaint names
Norton, Yin, Whelan, Beamer, and Dewsnup as additional defendants. No facts exist to
implicate these defendants.
11 Opinion and Order

response to the motion for summary judgment and the exhibits attached thereto are
silent as to this claim. The record is devoid of any facts regarding the grievance
process. For that reason, I grant defendant's motion for summary judgment as to
Lujan's second claim for relief.
5.

State Claims

Lujan's complaint alleges four state claims: physical and financial abuse, breach
of contract, medical malpractice, and negligence. The Oregon Tort Claims Act (OCTA)
requires that individually named defendants be dismissed from a plaintiff's state law
claim and the State of Oregon be substituted in their place. See Or. Rev. Stat. §
30.265(1) (the "sole cause of action for any tort of officers, employees or agents of a
public body acting within the scope of their employment or duties ... shall be an action
against the public body only."). 6 Therefore, Lujan's state claims must be considered
claims against the State of Oregon.
Pursuant to the Eleventh Amendment, federal courts may not entertain a lawsuit
brought by a citizen against a state, its agencies, or departments without the state's
consent. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). A state waives
its sovereign immunity by expressly consenting to be sued in a particular action.
Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of Oregon consents to be
sued in Oregon state courts for torts committed by its employees, officers, or agents
under the OTCA. The State has not consented to be sued in federal courts. I dismiss
Lujan's state claims without prejudice so that he may pursue them in the proper forum.

'Defendants may be named individually when the damages exceed the amounts set
forth in Or. Rev. Stat. § 30.271. Here, Lujan's requested damages of $250,000 falls
well below the threshold amounts required by statute for the relevant time period.
12 Opinion and Order

Conclusion

Although the fugitive disentitlement doctrine does not apply here, I grant
Defendants' Motion for Summary Judgment because Lujan's claims against Defendants
in their official capacities fail under the Eleventh Amendment. Furthermore, I find the
government officials named as defendants in this case are entitled to qualified immunity,
as I found no violation of Lujan's Constitutional rights. I dismiss without prejudice
Lujan's state claims.

Dated this

fl.Yd day of April, 2019

Robe E. nes, Senior Judge
United tales District Court

13 Opinion and Order