Warren v. State of Oregon et al

Filing 44

OPINION AND ORDER: Plaintiff's Motion to Admit Evidence (ECF No. 35 ) is DENIED as moot, and Plaintiff's Motion for Oral Argument (ECF No. 39 ) is DENIED. Defendant's Motion for Summary Judgment (ECF No. 29 ) is GRANTED. Plaintiff's Complaint (ECF No. 2 ) is dismissed with prejudice. Signed on 11/14/2023 by Judge Marco A. Hernandez. (Deposited in outgoing mail to pro se party on 11/14/2023.) (dsg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

TRAVIS WARREN,
Plaintiff,

Case No. 2:22-cv-00234-HZ
OPINION AND ORDER

v.
MARK PATTON,
Defendant.
___________________________________
HERNANDEZ, District Judge:
Plaintiff Travis Warren (“Plaintiff”), appearing pro se, brings this 42 U.S.C. § 1983 action
alleging that Defendant Dr. Mark Patton was deliberately indifferent to his serious medical needs
in violation of the Eighth Amendment. See generally Compl. (ECF No. 2). Plaintiff is an adult in
custody at the Santiam Correctional Institution. Defendant now moves for summary judgment. See
generally Def.’s Mot. Summ. J. (ECF No. 29). Plaintiff has also filed a Motion to Admit Evidence
(ECF No. 35), and a Motion for Oral Argument, (ECF No. 39). For the reasons that follow,
Plaintiff’s Motion to Admit Evidence is DENIED as moot, and Plaintiff’s Motion for Oral
Argument is DENIED. Defendant’s Motion for Summary Judgment is GRANTED.
1

- OPINION AND ORDER

FACTUAL BACKGROUND
Plaintiff injured his left shoulder while weight training on or about January 30, 2019.
Compl. at 2. He initially decided to let it heal on its own but eventually sought medical treatment.
Id. On April 10, 2019, Plaintiff saw a nurse at sick call and explained his symptoms, including
pain in the acromioclavicular (“AC”) joint, popping sounds with movement, and looseness around
the shoulder socket. Compl. at 2-3; Roberts Decl. at 2, 26 (ECF No. 30). The nurse advised Plaintiff
to stop weightlifting until the pain the resolved, and to take Tylenol and ibuprofen as needed.
Roberts Decl. at 2, 26.
On May 15, 2019, Plaintiff returned to sick call and complained again of pain in his left
shoulder. Id. at 3, 23. He explained to the nurse that he had stopped exercising for about a month
and was pain free during that time, but the pain returned when he began lifting weights again. Id.
The nurse again advised Plaintiff to take Tylenol and ibuprofen as needed, and made an
appointment for him to see a doctor. Id.
On June 10, 2019, Plaintiff saw Dr. Patton, and they discussed possible treatment options,
including creams, pills, or a cortisone shot. Compl. at 3; Roberts Decl. at 3, 23. Dr. Patton arranged
for Plaintiff to get an x-ray the next day. Roberts Decl. at 3, 16, 22. The x-ray results appeared
normal and showed no AC separation. Id. at 3, 32.
On July 22, 2019, Plaintiff sent a non-emergency health care request, saying that he wanted
to discuss getting a cortisone shot in his shoulder for pain. Id. at 3, 16. On September 5, 2019,
Plaintiff saw Dr. Patton, and got a cortisone injection in his left AC joint. Id. at 3, 22.
On January 10, 2020, Plaintiff sent another non-emergency health care request complaining
about his shoulder pain. Id. at 4. On January 29, 2020, Plaintiff again saw Dr. Patton and ordered
an MRI. Id. at 4, 22. After being approved by the Therapeutic Level of Care Committee (“TLC”),
2

- OPINION AND ORDER

Plaintiff’s MRI was completed on February 14, 2020. Id. at 4, 15, 21. The MRI showed a suspected
large labral tear which could be further evaluated with additional imaging, and it was noted that
the changes in Plaintiff’s AC joint were more prominent than typically seen in individuals his age.
Id. at 4, 24, 31. Dr. Patton subsequently requested an orthopedic evaluation and surgery, which the
TLC approved. Id. at 4, 15, 20-21.
Due to the COVID-19 global pandemic, outside medical appointments were limited to
urgent or emergent only, and Plaintiff’s orthopedic evaluation was not considered urgent or
emergent. Id. at 4. On June 1, 2020, Plaintiff saw Dr. Carpenter, an orthopedic surgeon, who
ordered an additional MRI. Compl. at 3-4; Roberts Decl. at. 4, 14.
Plaintiff’s second MRI was not considered urgent or emergent, either, and was done on
September 29, 2020. Roberts Decl. at 5. It showed an anterior periosteal sleeve avulsion and
irregular fraying of the superior labrum. Id. at 5, 28. The TLC subsequently approved Plaintiff for
an arthroscopy. Id. at 5. After additional evaluations, Plaintiff received a steroid shot and physical
therapy. Id. at 5-6. On July 13, 2021, Plaintiff underwent surgery to repair the labrum tear. Id. at
6, 9.
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is no genuine dispute
as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has
the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
A material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When a properly supported motion
3

- OPINION AND ORDER

for summary judgment is made, the burden shifts to the opposing party to set forth specific facts
showing that there is a genuine issue for trial. Id. at 250. The opposing party must, by affidavit or
as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for
trial. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). The court views inferences drawn
from the facts in the light most favorable to the nonmoving party and draws all reasonable
inferences in that party's favor. Long v. City & Cnty. of Honolulu, 511 F.3d 901, 905 (9th Cir.
2007). The court “does not weigh the evidence or determine the truth of the matter, but only
determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047,
1054 (9th Cir. 1999).
Because Plaintiff is proceeding pro se, the Court construes his pleadings liberally and
affords him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, this
does not relieve him of his “obligation to show a genuine issue of material fact for trial through
the presentation of specific, admissible evidence.” Epling v. Komathy, No. CV 10-5862-GAF
(RNB), 2011 WL 13142131, at *1 (C.D. Cal. Dec. 5, 2011).
DISCUSSION
1. Plaintiff’s Motions
Plaintiff moves the Court to admit Dr. Jeremy Anderson’s unsworn letter and declaration
as evidence in opposition to Defendant’s Motion for Summary Judgment. See Mot. to Admit Evid.
Plaintiff presents a set of questions he submitted to Dr. Anderson, the surgeon who performed his
shoulder surgery, and Dr. Anderson’s responses to them. Id. at 4-6. Plaintiff acknowledges that
the submitted declaration was not “sworn under penalty of perjury.” Id. at 1. Defendant objects to
the request because Plaintiff has not laid a foundation for the documents and they do not meet the
requirements of Federal Rule 56(c)(4), and moves to strike the documents. Def.’s Resp. at 2-3
4

- OPINION AND ORDER

(ECF No. 37). However, Plaintiff subsequently resubmitted a new declaration with the words
“SWORN TO BE TRUE AND ACCURATE UNDER PENALTY OF PERJURY” directly above
Dr. Anderson’s signature. Anderson Decl. at 4 (ECF No. 42). Accordingly, Plaintiff’s Motion to
Admit Evidence is denied as moot.
Plaintiff also moves the Court to hold oral argument. Mot. for Oral Arg. at 1. Plaintiff
submitted numerous exhibits in opposition to Defendant’s Motion for Summary Judgment and
wants to “explain these exhibits” to develop his case more fully before the Court. Id. Upon
consideration, the Court finds that oral argument is not necessary. Plaintiff’s Motion for Oral
Argument is therefore denied.
2. Official Capacity Claim
Plaintiff names Dr. Patton as a Defendant in this case in both his official and individual
capacity. Compl. at 2. The Court notes that it previously dismissed the State of Oregon as a
defendant in this case because it is immune from suit under the Eleventh Amendment. Order dated
Aug. 4, 2022 (ECF No. 20); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996). The Eleventh
Amendment also bars suits brought against state agencies, such as the Oregon Department of
Corrections, and state employees acting in their official capacity. Edleman v. Jordan, 415 U.S.
651, 663, 673 (1984); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992). Accordingly, to the
extent that Plaintiff asserts any claim against Dr. Patton in his official capacity, Defendant is
entitled to summary judgment.
3. Eighth Amendment Claim
Plaintiff alleges that Dr. Patton was deliberately indifferent to his serious medical when he
allegedly delayed ordering an MRI and otherwise failed to properly diagnose and treat Plaintiff’s
shoulder injury. Compl. at 1, 3-4. Defendant argues that Dr. Patton’s conduct does not amount to
5

- OPINION AND ORDER

deliberate indifference and that he, in fact, provided Plaintiff with adequate medical treatment.
Def.’s Mot. Summ. J. at 6.
To sustain an Eighth Amendment claim based on inadequate medical care and treatment,
Plaintiff must first show that he suffered from an objectively “serious medical need.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “A medical need is serious when the failure to treat
it could result in significant injury or the unnecessary and wanton infliction of pain.” Id.
Plaintiff must also allege facts sufficient to demonstrate that Defendant acted with
“deliberate indifference” to his serious medical needs. Erickson v. Pardus, 551 U.S. 89, 90 (2007).
Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
2004). Prison officials are deliberately indifferent when they know of and disregard an excessive
risk to an inmate’s health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference
can be demonstrated by prison officials denying, delaying, or intentionally interfering with medical
treatment, or by the manner in which they provide medical treatment. Estelle v. Gamble, 429 U.S.
97, 105 (1976). If a prisoner alleges a delay in receiving medical treatment, the delay must have
led to “significant harm” to establish deliberate indifference. Hallett v. Morgan, 296 F.3d 732, 746
(9th Cir. 2002).
Plaintiff claims that Dr. Patton knew that an MRI was necessary to diagnose Plaintiff’s
injury when he assessed Plaintiff’s shoulder on June 10, 2019, and wrongly delayed ordering one
until January 29, 2020. Resp. at 1. Plaintiff argues that Dr. Patton’s failure to order an MRI sooner
contributed to his surgery being unreasonably delayed until July 13, 2021. Id. at 2-3, 5-6. He claims
that his “medical care was slow, begrudging, negligent and deliberately delayed,” causing him
“unnecessary pain and suffering and loss of range of motion in [his] shoulder.” Id. at 5.

6

- OPINION AND ORDER

Defendant presents evidence that Dr. Patton provided adequate medical care: he responded
to Plaintiff’s non-emergency health care requests, assessed his shoulder, discussed various
treatment options, prescribed cream and pain medication, ordered an x-ray, administered a
cortisone shot and, when those treatments did not resolve Plaintiff’s pain, ordered an MRI,
orthopedic evaluations and surgery. Roberts Decl. at 3-4, 15-16, 20-23, 31-32. Generally, “the
question whether an x-ray or additional diagnostic techniques or forms of treatment is indicated is
a classic example of a matter for medical judgment.” Estelle, 429 U.S. at 107. The “decision not
to order an x-ray, or like measures, does not represent cruel and unusual punishment,” but is, at
most, medical malpractice. Id. Thus, Dr. Patton’s alleged failure to order an MRI sooner than he
did is not deliberate indifference. Toguchi, 391 F.3d at 1060 (9th Cir. 2004) (“A showing of
medical malpractice or negligence is insufficient to establish a constitutional deprivation under the
Eighth Amendment.”) (citations omitted).
Plaintiff also submits a sworn declaration from Dr. Anderson, and several exhibits in
opposition to Defendant’s Motion. See Anderson Decl; Exs. 1-5 (ECF Nos. 38-1, 38-2). Assuming
without deciding that Plaintiff’s evidence is admissible,1 he does not create a genuine issue of
1

Plaintiff submits five exhibits. See Exs. 1-5. Notably, these exhibits are not all relevant or
properly authenticated for the Court’s consideration.
Exhibit 1 is labeled “Medical Records.” While these documents are largely consistent with the
medical records produced by Defendant, Plaintiff’s set includes medical records with his own
handwritten notes and annotations on them. See Ex. 1.
Exhibit 2 is labeled “Economic Damages.” Documents include, for example, a certificate of
incorporation for a business titled “Total Fitness by Warren, Inc.,” and a Request/Authorization
Form submitted to Two Rivers Correctional Institution. The Court notes that damages are not at
issue at this stage of litigation. See Ex. 2.
Exhibit 3 is labeled “Tort Notice & Grievances,” which includes a tort claim notice dated
November 16, 2020, and a grievance relating to Plaintiff’s shoulder injury and medical treatment
dated July 17, 2020. See Ex. 3.
Exhibit 4 is labeled “Admissions & Dr. Anderson Answers.” Documents include two sets of
defendant’s response to plaintiff’s request for admissions: one relates to the instant action and the
7 - OPINION AND ORDER

material fact as to whether Defendant acted with deliberate indifference to his serious medical
need. For example, in response to a question Plaintiff submitted, Dr. Anderson states that the
amount of time between reviewing an MRI of an injury like the one Plaintiff suffered and
performing surgery is “variable depending upon other conservative treatments,” and that seventeen
months is “a little long in the U.S.” Anderson Decl. at 3. While Plaintiff complains about having
to wait seventeen months from his MRI and diagnosis until his surgery, “mere delay of surgery,
without more, is insufficient to state a claim of deliberate medical indifference.” Shapley v. Nevada
Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Furthermore, Defendant presents
evidence that some of this alleged delay was, at least in part, attributed to the COVID-19 global
pandemic, and that Plaintiff nevertheless continued to receive medical care including pain
medication, a second MRI, a steroid injection, physical therapy and saw several outside providers
during that time. Roberts Decl. at 4-6. This evidence tends to support Defendant’s position that
“[p]roviders took a conservative approach for treating [Plaintiff’s] injury and that approach was
appropriate for this type of injury.” Id. at 7.
On this record, the Court cannot conclude that Defendant’s conduct “was medically
unacceptable under the circumstances” or was chosen “in conscious disregard of an excessive risk”

other relates to a medical negligence claim filed in Umatilla County against the state of Oregon.
See Ex. 4 at 17-31.
Exhibit 4 also includes Dr. Anderson’s unsworn declaration, which Plaintiff included in his Motion
to Admit Evidence. See Ex. 4 at 33-36; Mot. to Admit Evid. at 3-6. In response to Question #8
submitted to Dr. Anderson in the unsworn declaration, Dr. Anderson states that ten months
between initial presentation of an injury like the one Plaintiff suffered and receiving an MRI is
“not unreasonable.” Ex. 4 at 35; Mot. to Admit Evid. at 5. Notably, this question is omitted from
Plaintiff’s later-submitted set of questions presented to Dr. Anderson in the sworn declaration.
Compare Ex. 4 at 33-36 and Mot. to Admit Evid. at 3-6 with Anderson Decl.
Exhibit 5 is labeled “Internet Searches & Professional Publications of Standard of Care.” These
documents do not include any source citations. See Ex. 5.
8

- OPINION AND ORDER

to Plaintiff’s health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citation omitted).
In sum, Plaintiff has failed to establish that Dr. Patton knew of and disregarded an excessive risk
to Plaintiff’s health. Accordingly, Defendant is entitled to summary judgment.
CONCLUSION
For the reasons explained above, Plaintiff’s Motion to Admit Evidence (ECF No. 35) is
DENIED as moot, and Plaintiff’s Motion for Oral Argument (ECF No. 39) is DENIED.
Defendant’s Motion for Summary Judgment (ECF No. 29) is GRANTED. Plaintiff’s Complaint
(ECF No. 2) is dismissed with prejudice.

November 14, 2023
DATE

9

- OPINION AND ORDER

Marco A. Hernandez
United States District Judge