Galloway v. Cain et al

Filing 85

OPINION AND ORDER. For the reasons stated, the Court ORDERS Defendants to take the following actions within sixty days: (1) order two Velcro straps designed for Galloway's AFO; (2) approve Galloway to self-purchase shoes every six mont hs that will accommodate his AFO; (3) arrange for the repair and maintenance of Galloway's primary AFO; (4) order a second AFO for Galloway to use when his primary AFO is serviced; and (5) make resistance bands available to Galloway for h is physical therapy exercises in a manner consistent with the correctional environment. Defendants shall file a status report with the Court on or before August 14, 2023, confirming compliance with this order. IT IS SO ORDERED. Signed on June 15, 2023 by Magistrate Judge Stacie F. Beckerman. (Deposited in outgoing mail to Plaintiff on June 15, 2023.) (gw)

Case 2:18-cv-00923-SI

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

NATHAN WAYNE GALLOWAY,
Plaintiff,

Case No. 2:18-cv-00923-SI
OPINION AND ORDER

v.
GARTH GULICK et al.,
Defendants.
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Nathan Wayne Galloway (“Galloway”) filed a motion for enforcement of his
August 2021 settlement agreement (“Settlement Agreement”) with Defendants Garth Gulick,
Ashley Clements, and the State of Oregon (together, “Defendants”). (ECF Nos. 67, 82.) The
Settlement Agreement provided that “[i]n the event the Parties are unable to resolve any disputes
concerning this agreement, [Galloway] may present to Judge [Stacie F.] Beckerman evidence
that [the Oregon Department of Corrections (‘ODOC’)] is not substantially complying with the
terms of this agreement.” (Settlement Agreement at 3, ECF No. 50, Ex. 1.) The Settlement
Agreement further provided that “[i]n the event that Judge Beckerman finds that defendants have
not substantially complied with the terms of the agreement, then Judge Beckerman shall have the
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authority to order ODOC to remedy the breach.” (Id. at 3-4.) After the parties briefed Galloway’s
motion to enforce the settlement agreement, the Court held a hearing on the motion. (See ECF
No. 84.)
Based on the parties’ evidence and argument, the Court finds as follows:
1.

Replacement of Galloway’s Medical Equipment. In the Settlement Agreement,

Defendants agreed to “replace, as needed, medically necessary durable medical equipment in
connection with this case.” (Settlement Agreement at 2.) Galloway alleges, and Defendants do
not dispute, that Galloway’s artificial foot orthotic (“AFO”) is medically necessary durable
medical equipment in connection with this case, ODOC personnel removed the Velcro strap
from Galloway’s AFO, ODOC will not allow him to order the type of shoe that will
accommodate his AFO, and Galloway’s AFO is overdue for repair and maintenance. (Pl.’s Mot.
at 5-6, ECF No. 67; Defs.’ Resp. at 10-11, ECF No. 75; Pl.’s Reply at 9-11, ECF No. 82.)
Galloway also asserts that he requires two Velcro straps for his primary AFO and a second AFO
to use when his primary AFO is sent out of the institution for repair and maintenance (Pl.’s Mot.
at 6), and he reported at the hearing that ODOC staff damaged his secondary AFO by tearing off
its Velcro straps.
In light of these largely uncontroverted facts, the Court finds that Defendants have not
substantially complied with the terms of the Settlement Agreement requiring them to replac e, as
needed, Galloway’s medically necessary durable medical equipment. Accordingly, the Court
orders Defendants to: (1) order two Velcro straps designed for Galloway’s AFO; (2) approve
Galloway to self-purchase shoes at least every six months that will accommodate his AFO; (3)
arrange for the repair and maintenance of Galloway’s primary AFO; and (4) provide a second
AFO for Galloway to use when his primary AFO is serviced.

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2.

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Physical Therapy Equipment. The Settlement Agreement provided that “ODOC

will provide Plaintiff with a physical therapy consultation and continue physical therapy sessions
for as long as the physical therapist recommends treatment” and “will request the physical
therapist to provide a written treatment plan and provide adequate facilities and equipment to
comply with the treatment plan to the extent possible within a correctional environment.”
(Settlement Agreement at 2.) Galloway alleges, and Defendants do not dispute, that ODOC
provided Galloway with physical therapy sessions that ended with recommendations for a
“home” exercise plan requiring the use of resistance bands. (Pl.’s Mot. at 2-3; Defs.’ Resp. at 56; Pl.’s Reply at 3-4.) Although ODOC initially allowed Galloway to use resistance bands to
comply with his physical therapy treatment plan, security staff seized the bands from Galloway
and a nurse refused to reissue the bands for Galloway either for use in his own cell or in an
alternative location. (Pl.’s Mot. at 2-3.) Defendants do not dispute Galloway’s assertion that
security staff seized the resistance bands only because the medical staff failed properly to
document their issuance of the resistance bands to Galloway. (Pl.’s Reply at 4.)
In light of these undisputed facts, the Court finds that Defendants have not substantially
complied with the terms of the Settlement Agreement requiring them to provide adequate
facilities and equipment for Galloway’s physical therapy. Accordingly, the Court orders ODOC
to make resistance bands available to Galloway in a manner consistent with the correctional
environment.
3.

Chronic Pain Treatment. The Settlement Agreement provided that “ODOC will

provide Plaintiff with a consultation at the Oregon Health and Sciences University (OHSU) pain
clinic for evaluation of chronic pain” and “will implement all medically reasonable
recommendations received by outside experts that are based on evidence-based clinical data,

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current professional knowledge and experience.” (Settlement Agreement at 2-3.) It is undisputed
that OHSU’s Dr. William Yates recommended a five-pronged treatment plan, to include
acupuncture, epidural steroid injections (ESIs), pain psychology, physical therapy, and
medication (Gabapentin). (Pl.’s Mot. at 3-4; Defs.’ Resp. at 6-10; Pl.’s Reply at 4-9.)
Defendants assert that Dr. Yates recommended a range of options which ODOC may
consider, but did not recommend that ODOC implement all of the pain relief measures
simultaneously. (Defs.’ Resp. at 7.) Defendants determined that it was medically appropriate to
attempt one treatment at a time to treat Galloway’s chronic pain, so that they could evaluate
which method was effective. (Id.)
Consistent with that approach, Galloway received an ESI on March 1, 2022, and he
reported a 60% reduction in pain relief for three weeks. (Id.) After a follow-up appointment,
OSHU recommended quarterly ESI treatments and Gabapentin. (Id.) Galloway’s primary care
physician at ODOC was concerned that Galloway should not take Gabapentin because he was
refusing to take his diabetes and thyroid medications which could lead to side effects. (Id. at 78.) Galloway also refused to take Gabapentin in the prescribed dosage and form, and insisted on
only the “full” OHSU treatment plan. (Id.)
Based on the record before the Court, the Court finds that Defendants have made a good
faith effort to comply with the Settlement Agreement, but their efforts have been frustrated in
part by Galloway’s unwillingness to take medications as prescribed. The Court finds that it was
not an unreasonable approach for ODOC to try one of the recommended pain treatment methods
at a time, at least up until OHSU prescribed the use of both ESIs and Gabapentin together. If
Galloway is compliant with his prescribed diabetes and thyroid medications and with ODOC’s
prescribed dosage and titration of Gabapentin, it appears there is no reason why Galloway cannot

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receive quarterly ESIs while also taking Gabapentin as prescribed. The Court urges the parties to
work together collaboratively to implement OHSU’s chronic pain treatment plan.
4.

Behavioral Health Services (“BHS”). The Settlement Agreement provided that

“ODOC will refer Plaintiff to its internal [BHS] for evaluation and treatment options f or any
mental health conditions.” (Settlement Agreement at 2.) Galloway alleges that Defendants
provided false and misleading information about him to his BHS provider, “poisoning” the
treatment relationship. (Pl.’s Mot. at 6-7.) He asks the Court to order Defendants to send him to a
pain psychologist at OHSU and follow the psychologist’s treatment plan. (Id. at 7.) Defendants
respond that ODOC provided Galloway with cognitive behavioral therapy, but that Galloway
refused to participate. (Defs.’ Resp. at 10.) Galloway explains that he fully participated with
individual treatment sessions with his provider, but refused to participate in group therapy
sessions led by other adults in custody. (Pl.’s Reply at 9.)
The Court finds that Defendants substantially complied with the Settlement Agreement
by referring Galloway to BHS for evaluation and treatment. (Settlement Agreement at 2.)
Defendants report that Galloway may reengage with available BHS services, and the Court
encourages him to do so.
5.

Damages and Independent Monitor. The Court denies Galloway’s request for

compensatory damages and attorney’s fees, and for the appointment of an independent monitor.
(Pl.’s Mot. at 8.) The Settlement Agreement provides that if the Court finds that Defendants have
not substantially complied with its terms, the Court shall have authority to order ODOC to
remedy the breach, but it is only “[i]n the event that defendants willfully decline to remedy any
alleged breach, and [the Court] finds that no other remedies are effective” that the Court “shall
have the authority to impose remedial or punitive sanctions on ODOC.” (Settlement Agreement

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at 4.) Consistent with the terms of the Settlement Agreement, the Court will provide Defendants
sixty days to remedy the breaches discussed herein.
CONCLUSION
For the reasons stated, the Court ORDERS Defendants to take the following actions
within sixty days: (1) order two Velcro straps designed for Galloway’s AFO; (2) approve
Galloway to self-purchase shoes every six months that will accommodate his AFO; (3) arrange
for the repair and maintenance of Galloway’s primary AFO; (4) order a second AFO for
Galloway to use when his primary AFO is serviced; and (5) make resistance bands available to
Galloway for his physical therapy exercises in a manner consistent with the correctional
environment. Defendants shall file a status report with the Court on or before August 14, 2023,
confirming compliance with this order.1
IT IS SO ORDERED.
DATED this 15th day of June, 2023.

HON. STACIE F. BECKERMAN
United States Magistrate Judge

The parties agreed in the Settlement Agreement that “Judge Beckerman’s written order
shall be the final resolution of any dispute submitted in accordance with this agreement” and
“waive[d] any rights of appeal or . . . other judicial review[.]” (Settlement Agreement at 4.)
1

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