Melendez v. Gulick et al

Filing 31

OPINION & ORDER: Defendants' Motion for Summary Judgment 23 is Granted. A final judgment shall be prepared. Signed on 9/18/18 by Magistrate Judge Paul Papak. **13 PAGE(S), PRINT ALL** (Henry Melendez, Prisoner ID: 17720260) (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HENRY MELENDEZ,
Plaintiff,
2:17-CV-1810-PK
OPINION AND
ORDER

V.

DR. GARTH GULICK and DR. BRISTOL,
Defendants.
PAP AK, Magistrate Judge:
Plaintiff Herny Melendez, an incarcerated prisoner proceeding pro se and in form a

pauperis, filed this action against defendants Dr. Gaiih Gulick, Dr. Bristol, and Brad Cain on
November 13, 2017. By and through his complaint as originally filed, Melendez appeared to
allege all defendants' liability under.42 U.S.C. § 1983 for the violation of his Eighth Amendment
and, apparently, Fomieenth Amendment right to freedom from cruel and unusual punishment, as

Page 1 - OPINION AND ORDER

well as all defendants' liability under the Oregon Constitution for violation of the same right. In
support of his claims, Melendez alleged purportedly wrongful conduct of Gulick and Bristol
(specifically, those defendants' alleged denial of adequate medical treatment in connection with
Melendez' complained-of shoulder pain), but offered no allegation that Cain had participated in
the alleged deprivation of his rights.
On November 20, 2017, Judge Mosman dismissed Melendez' claim(s) to the extent
alleged against Cain, on the ground that there was no allegation from which it could be infened
that Cain pmticipated in the alleged wrongful conduct, and additionally dismissed Melendez'
claim(s) to the extent alleged to arise under the Fomieenth Amendment, on the ground that the
Fourteenth Amendment does not guarantee the right of incarcerated prisoners to receive adequate
medical care. Judge Mosman granted Melendez leave to amend his pleading to cure its identified
deficiencies within thi1iy days. On November 29, 2017, Melendez amended his complaint,
abandoning his claim(s) to the extent alleged against Cain and clarifying that his claim arising
out of alleged denial of adequate medical care arises under the Eighth Amendment and the
Oregon Constitution only.
By and through his amended complaint, Melendez argues that remaining defendants
Gulick and Bristol improperly delayed his receipt of medical treatment for his complained-of
shoulder pain and ultimately provided inadequate medical treatment for that condition. Arising
out of the foregoing, Melendez appears to allege defendm1ts' liability under Section 1983 in both
their official and their individual capacities for the violation of his Eighth Amendment right to
adequate medical care while incarcerated and under the Oregon Constitution for violation of that
same right. Melendez seeks award of compensato1y and punitive damages in the amount of $4

Page 2 - OPINION AND ORDER

million. This cou1t has federal question jurisdiction over Melendez' Eighth Amendment claim
pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over
Melendez' Oregon Constitutional claim pursuant to 28 U.S.C. § 1367.
Now before the comt is defendants' motion (#23) for summmy judgment. I have
considered the motion and all of the pleadings and papers on file. For the reasons set forth
below, defendants' motion (#23) for summmy judgment is granted.

LEGAL STANDARD
Summmy judgment is appropriate "if the movant shows that 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). A party taking the position that a material fact either "cannot be or is genuinely disputed"
must suppo1t that position either by citation to specific evidence of record "including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, inte11'ogato1y answers, or other
materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing patty is unable to produce sufficient
admissible evidence to establish the presence cir absence of such a dispute. Fed. R. Civ. P. 56(c).
The substantive law governing a claim or defense determines whether a fact is material. See

1\Iorelandv. Las Vegas kfetro. Police Dep't, 159 F.3d 365,369 (9th Cir. 1998).
Summary judgment is not proper if material factual issues exist for trial. See, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 318,322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242,248 (1986); Warren v. City of Carlsbad, 58 F.3d 439,441 (9th Cir. 1995), cert. denied, 116
S.Ct. 1261 (1996). In evaluating a motion for summmy judgment, the district courts of the

Page 3 - OPINION AND ORDER

United States must draw all reasonable inferences in favor of the nonmoving party, and may
neither make credibility dete1minations nor perform any weighing of the evidence. See, e.g.,

Lytle v. Household 2vffg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).

MATERIAL FACTS

I.

The Parties
Plaintiff Melendez is an incarcerated prisoner currently housed in the Snake River

Correctional Institution ("SRCI"). Defendant Gulick is a physician employed to provide medical
services to prisoners incarcerated at SRCI. Defendant Bristol is a physician who provided
medical services to Melendez.

III.

The Parties' Dispute
A.

Melendez' Allegations in Support of his Claims

Although not material to resolution of defendants' motion for summary judgment, I
summarize Melendez' allegations in support of his claims in order to provide context for
discussion of the merits of defendants' motion.
Melendez alleges as follows. Melendez first began complaining to the defendants
regarding neck and shoulder pain on Februaiy 22, 2013. See Amended Complaint (#9) at 6.
When defendants failed to provide him with medical care in connection with his complained of
symptoms, he complained again on April 7, 2013. See id. He was seen by defendant Gulick on
April 19, 2013, at which time Gulick opined that an MRI scan would not be the appropriate
diagnostic tool to determine the cause of his symptoms. See id at 8. In approximately July
2013, Melendez requested a second opinion. See id. Gulick arranged for Melendez to be seen by

Page 4 - OPINION AND ORDER

defendant Bristol in November or December 2013, at which time Bristol likewise declined to
recommend that Melendez undergo an MRJ scan. See id. Melendez was nevertheless approved
for an MRJ scan which took place on October 22, 2014, and was repeated on April 20, 2015. See
id. at 7. He underwent surge1y on his left shoulder on July 28, 2015. See id. He was seen by a
specialist in connection with symptoms in his right shoulder on August 29, 2016, and underwent
a CT scan oh his right shoulder on November 21, 2016. See id. He was approved for surgery on
his right shoulder on December 7, 2016, and underwent the approved surgery on Febrnmy 22,
2017. See id. Defendants failed to follow up on Melendez' surgeries by prescribing him
medically necessmy physical therapy. See id. at 4-5. It is Melendez' position that the delay
between his first pain complaint and his final surgical intervention was the result of defendants'
deliberate indifference to his medical needs. See id. at 7-8. It is further Melendez' position that
the delay caused him to suffer permanent injmy. See id. at 8.
B.

The Parties' Evidentiary Proffers'

Melendez has been in custody at SRCI since Janumy 9, 2012. See Declaration (#24) of
Christopher DiGiulio, M.D. ("DiGiulio Deel."), ,r 3. Melendez first began complaining of joint
pain to SRCI physicians in March 2012. See id.,

,r 10.

He appears to have been diagnosed with

rheumatoid arthritis, an incurable degenerative disease of the joints. See id., ,r,r 6-8, 36. SRCI
Health Services at first attempted conservative approaches to managing his complained-of
shoulder pain, beginning in March 2012 with pain medications including Naproxen,
Desipramine, Nifedipin/Lidocaine ointment, Capsaicin cream, Ketoprofen, Prednisone, Ultram,

1

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentimy record in light of the legal standard governing motions for summmy judgment
under Federal Civil Procedure Rule 56.
Page 5 - OPINION AND ORDER

Methotrezate, Sulfasalazine, Hydroxychloroquine, Oxycontin, Enbrel iajections, and
Hydrocodone. See id.,

~

10. Over the two to three following years, Melendez underwent

multiple X-ray studies of both his shoulders, CT scans of both shoulders, and consultation with
011hopedists, including a shoulder specialist. See id.; see also Melendez' Opposition (#28) to
Defrendants' Motion for Summary Judgment ("Opposition"), Exh. 3 at 51-54. Apparently in late
2014, Melendez was approved for left shoulder replacement surge1y. See DiGiulio Deel.,~ 10.
The surge1y was originally scheduled for Januaiy 2015, but the 011hopedic surgeon scheduled to
perform the surgery canceled the procedure and referred Melendez to a shoulder specialist, Dr.
Scott C. Humphrey. See id.,

~~

I 0-11. Humphrey evaluated Melendez for surge1y, appmently

ordering the MRI study that Melendez alleges took place on April 20, 2015. See id.,

~

10.

Humphrey ultimately performed the procedure on July 28, 2015. See id. Because Melendez
complained of similar symptoms in his right shoulder, Humphrey opined that Melendez should
be considered for right shoulder replacement surgery about six months after the left shoulder
replacement procedure, in order to give the left shoulder time to heal. See id. SRCI Health
Services prescribed Melendez with physical therapy exercises he could perform on his own in his
cell, and additionally saw him in the SRCI clinic for Theraband and stretching exercises for his
left shoulder. See id. Melendez additionally consulted with I-(umphrey eve1y few weeks for the
next several months. See id.,

~

11. During this time, Melendez was receiving NSAID drngs for

treatment of his right shoulder pain symptoms. See id. Melendez underwent diagnostic studies
of his right shoulder on August 25, 2015, August 3, 2016, and October 7, 2016. See Opposition,
Exh. 3 at 55-56, 64-66.
Humphrey again examined Melendez' shoulders on December 17, 2015. See DiGiulio

Page 6 - OPINION AND ORDER

Deel., 1 11. Humphrey opined that the condition of Melendez' right shoulder was comparable to
the pre-replacement condition of his left shoulder. See id Hump1n·ey further opined that
Melendez had difficulty in raising his left aim and suffered pain in his left shoulder at the
extremes of his range of motion, and prescribed a reduction in Melendez' three daily stretching
exercises to one daily stretching exercise, recommending that Melendez find work at SRCI that
involved less lifting than did his job in the SRCI laundry. See id. Humphrey opined that
Melendez was a good but not ideal candidate for right shoulder replacement. See id.
On January 20, 2016, Melendez was approved for trial ofHumira in place ofEnbrel for
treatment of his rheumatoid arthritis pain. See id., 1 12. On March 9, 2016, Melendez received a
coliicosteroid shot in his right shoulder for treatment of his pain symptoms. See id., 1 13; see

also Opposition, Exh. 3 at 58-59. On April 11, 2016, Melendez underwent an X-ray study of his
neck, which revealed only slight straightening of normal cervical lordosis and mild disc space
narrowing. See DiGiulio Deel., 1 14.
On April 13, 2016, Gulick postponed Melendez' right shoulder replacement surgery due
to Melendez' receipt of the co1iicosteroid injection in March 2016. See id., 1 15. On April 20,
2016, Melendez was re-approved for right shoulder replacement. See id., 116.
On April 21, 2016, Melendez complained at SRCI Health Services of increased right
shoulder pain. See id., 117. Gulick consulted with Melendez in connection with his increased
pain symptoms on May 11, 2016. See id., 118. On May 30, 2016, Melendez consulted with an
SRCI physical therapist who provided him with instruction regarding his prescribed physical
therapy exercises. See id., 119. On August 24, 2016, Melendez discontinued Humira and
returned to using Enbrel. See id., 120.

Page 7 - OPINION AND ORDER

On August 29, 2016, Melendez consulted with an orthopedist who ordered a CT scan of
his right shoulder. See id., ~ 21; see also Opposition, Exh. 3 at 60-61. The orthopedist opined
that Melendez was a good candidate for a hemiarthroplasty of his right shoulder. See Di Giulio
Deel., ~ 21. On August 31, 2016, Melendez was approved for a CT scan. See id., ~ 22. On
October 7, 2016, Melendez underwent an X-ray study of his right shoulder which revealed
significant progression of his rheumatoid arthritis in that joint. See id.,~ 23. On October 24,
2016, Melendez consulted a second time with the orthopedist who had recommended
hemiarthroplasty; the orthopedist repeated that recommendation. See id.,~ 24. On December 7,
2016, Melendez was approved for right shoulder replacement. See id., ~ 25; see also Opposition,
Exh. 3 at 57.
On Februmy 2, 2017, Melendez underwent another X-ray study of his right shoulder. See
DiGiulio Deel.,~ 28. On Febrnmy 13, 2017, Gulick prescribed Melendez with a "low bunk" for
a period of one year. Id.,~ 29.
On Februmy 22, 2017, Melendez underwent right shoulder replacement surgery. See id.,
~

30. Melendez consulted with the surgeon who performed the procedure once each month for

the next following four months for post-surgical follow up. See id., ~~ 31-35. On June 19, 2017,
Melendez reported no pain symptoms in his right shoulder. See id.,~ 35.
ANALYSIS
I.

Melendez' Eighth Amendment Claim

Melendez' Eighth Amendment claim is premised on the theory that defendants Gulick and
Bristol violated his rights under the Eighth Amendment by delaying and/or denying medically
necessmy treatment for his shoulder pain from February 22, 2013, to February 22, 2017, and by

Page 8 - OPINION AND ORDER

refusing to provide him with medically necessmy post-surgical physical therapy out of deliberate
indifference to his serious medical needs. It is well established that a public official's "deliberate
indifference to a prisoner's serious illness or injmy" violates the Eighth Amendment's prohibition
against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 105 (1976). To prevail
on an Eighth Amendment deliberate indifference claim, a prisoner must establish both (i) that he
suffered an objectively serious illness or injury while incarcerated and (ii) that prison officials
were subjectively aware of the seriousness of the condition and deliberately denied or delayed
access to medical care that could reasonably have been provided. See Clement v. Gomez, 298
F.3d 898, 904-905 (9th Cir. 2002). The objective component is satisfied "whenever the failure to
treat a prisoner's condition could result in further significant inju1y or the unnecessary and
wanton infliction of pain." Id. at 904 (internal quotation marks omitted), citing lvlcGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), quoting Estelle, 429 U.S. at 104. Under Estelle, to
establish a defendant's subjective deliberate indifference requires a showing "of something more
than mere negligence," Hutchinson v. United States, 838 F.2d 390,394 (9th Cir. 1988), rising to
the level of "a purposeful act or failure to act on the part of the defendant" notwithstanding the
defendant's knowledge that such act or failure to act was likely to harm the plaintiff, 1vlcGuckin v.
Smith, 974 F.2d 1050, 1060 (9th Cir. 1992).
A finder of fact could not reasonably conclude on the basis of the evidentiary record
herein that either defendant purposefully delayed or denied reasonably necessaiy medical care to
Melendez notwithstanding a risk known to either defendant that such delay or denial was likely
to harm Melendez. First, as to defendant Bristol, there is no evidence of record with any
tendency to establish that he played any role in any of the complained-of conduct. Second,

Page 9 - OPINION AND ORDER

although the evidence of record does tend to support the proposition that SRCI Health Services
initially adopted a conservative approach to addressing Melendez' repo1ied symptoms, no
evidence of record has any tendency to suggest that it was medically unreasonable to adopt a
conservative approach initially, that it was reasonably foreseeable that a conservative approach
would cause Melendez to suffer consequential haim, that the initial conservative approach did in
fact cause Melendez to suffer any exacerbation of his condition, or that at any material time
either defendant or any other member of SRCI Health Services personnel refused to provide
Melendez with treatment for managing his pain symptoms (indeed, the evidentiary record tends
to establish that at all times between February 22, 2013, and February 22, 2017, Melendez was
receiving some form of pain management treatment from SRCI Health Services). Melendez may
have disagreed with the conservative approach adopted by SRCI Health Services for addressing
his pain symptoms, and it is possible that he would have obtained greater pain relief earlier had
SRCI Health Services adopted a more aggressive approach earlier, but absent any evidence that
the approach actually adopted was medically umeasonable and in light of the evidence of record
that Gulick and other SRCI Health Services personnel continuously provided Melendez with
medical care calculated to address his symptoms, as a matter oflaw a finder of fact could not find
that the initial conservative approach constituted a breach "of constitutional propo1iions" of the
government's duty to provide medical care to an incarcerated prisoner. Hutchinson, 838 F.2d at

394.
Third, there is no evidence of record with any tendency to suggest that there was any
medically unreasonable delay in arranging Melendez' shoulder replacement surgeries, that the
outcome of those surgeries would have been different and better but for the complained-of delay,

Page 10- OPINION AND ORDER

or that either defendant had at any material time actual or constructive knowledge that it was
reasonably medically necessaiy for Melendez to undergo surge1y sooner than he actually did.
Absent any evidence tending to suggest in any degree either that defendants knew that it was
medically necessaiy to schedule Melendez' surgeries more aggressively and yet declined to do so
or that the complained-of delay in Melendez' surgeries caused him to suffer iaju1y that he would
not otherwise have suffered, in light of the evidence of record tending to establish that Gulick
and other SRCI Health Services personnel continuously provided Melendez with medical care
calculated to address and ameliorate his symptoms the complained-of delay is not actionable as
cruel and unusual punishment as a matter of law. See id.; see also, e.g., Jett v. Penner, 439 FJd
1091, 1096 (9th Cir. 2006).
Fourth, the evidence of record tends to establish that, notwithstanding Melendez' contrary
allegation, the evidence establishes that he has received post-surgery physical therapy from SRCI
Health Services calculated to address his need for post-surgical rehabilitation of his shoulder
joints, and there is no evidence of record with any tendency to suggest that his post-surge1y
physical therapy was medically umeasonable or inadequate. In light of the evidence that he
received medical treatment in the f01m of physical therapy, in the absence of evidence tending to
suggest in any degree that the physical therapy he received was inadequate, a finder of fact could
not reasonably find on the basis of the evidentiary record that Melendez suffered a constitutional
deprivation of his right to post-surgery physical therapy. See Hutchinson, 838 F.2d at 394.
For the foregoing reasons, defendants have met their burden to establish the absence of
any material question of fact as to whether Melendez suffered an actionable deprivation of his
Eighth Amendment right to freedom from cruel and unusual punishment. In consequence,

Page 11 - OPINION AND ORDER

defendants' motion (#23) for summmy judgment is granted as to Melendez' Eighth Amendment
claim.

II.

Melendez' Oregon Constitutional Claim
The Oregon Constitution, Article I, Section 16, provides in part, "Cruel and
unusual punishments shall not be inflicted, but all penalties shall be proportioned
to the offense." This encompasses two elements, a prohibition on "cruel and
unusual punishment," and a prop01tionality requirement as to sentencing. State v.
Wheeler, 343 Or. 652, 656, 175 P.3d 438 (2007). Oregon courts have largely
interpreted the Oregon State Constitution's prohibition of cruel and unusual
punishment parallel to the U.S. Constitution Eighth Amendment prohibition of
cruel and unusual punishment. E.g., State v. Baker, 346 Or. 1, 4-6, 202 P.3d 174
(2009); Billings v. Gates, 323 Or. 167, 181,916 P.2d 291 (1996); Keenan v.
}vfaass, 149 Or. App. 576, 578-79, 945 P.2d 526 (1997). Oregon courts have
provided some additional guidance on what constitutes cruel and unusual
punishment under the state constitution: "[T]he phrase 'cruel and unusual
punishments' ... connotes a conscious choice on the pmt of prison officials to
inflict punishment on an inmate. The reference in Article I, section 16, to
punishments that are 'inflicted' also suggests that the punisher must have some
level of intent or purpose." Billings, 323 Or. at 167 (quotation omitted).

Taylor v. Ridley, Case No. 2:18-cv-00314-SU, 2018 U.S. Dist. LEXIS 123499, at *10-11 (D. Or.
July 24, 2018). Indeed, in Billings, the Oregon Supreme Court expressly held that "the Eighth
Amendment's 'deliberate indifference to serious medical needs' standard is the appropriate
standard under Article I, section 16" of the Oregon Constitution. Billings v. Gates, 323 Or. 167,
180 (1996). It follows that Melendez' Oregon constitutional claim is viable only to the extent
that his Eighth Amendment claim is viable. Because for the reasons set forth above a finder of
fact could not reasonably conclude on the basis of the evidence of record that defendants'
complained-of conduct constituted an actionable deprivation of Melendez' Eighth Amendment
rights, Melendez' Oregon constitutional claim cannot survive defendants' motion for summmy
judgment. Defendants'' motion (#23) for summmy judgment is therefore granted as to Melendez'
Oregon constitutional claim.
Page 12 - OPINION AND ORDER

CONCLUSION
For the reasons set forth above, defendants' motion (#23) for summaiy judgment is
granted. A final judgment shall be prepared.
(

onorable Paul Pap
United States District Judge

Page 13 - OPINION AND ORDER