French v. Staton et al
Filing
45
OPINION and ORDER - For the reasons stated, Defendants' motion for summary judgment 34 is GRANTED. Dated this 13th day of March, 2012, by U.S. Magistrate Judge John V. Acosta. (copy mailed to plaintiff Harold French this dated) (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
HAROLD J. FRENCH,
Civ. No. 11-375-AC
Plaintiff,
OPINION AND
ORDER
v.
SHERIFF DANIEL STATON, DR.
ERSSON, BROOKLEY HOLTER,
INVERNESS JAIL NURSING STAFF,
CORRECTIONS HEALTH,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Harold J. French (“French”) asserts claim against Defendants Sheriff Daniel Staton
(“Staton”), Dr. Ersson, Brookley Holter (“Holter”), the Inverness Jail Nursing Staff (“the Nursing
Staff”), and Corrections Health for violation of his rights under the Eighth Amendment to the United
OPINION AND ORDER
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States Constitution. This claim is premised on the defendants’ alleged deliberate indifference to his
serious medical need in failing to provide French with medication adequate to treat his ankle pain.
Defendants Staton, Dr. Ersson, and Holter (hereinafter “Defendants”) move for summary judgment
on the ground that there are no specific allegations of wrongdoing, let alone allegations giving rise
to a constitutional violation. Defendants contend that French’s care was medically appropriate and
within the applicable standard of care.
Factual Background
French was booked into Multnomah County Detention Center on July 2, 2010. He was
injured at the time, and received ibuprofen and ice for his injuries. Two days later, French saw Dr.
Marks, and was prescribed a five-day course of Vicodin, a pain medication, and given a support cuff
for his ankle. On July 9, 2010, he was discharged from the clinic with a wheelchair, special shoes,
and a cane. He also received a prescription for a decreased dose of Vicodin. On July 19, 2010, he
was transferred to Multnomah County Inverness Jail (“Inverness”).
On July 23, 2010, French was again evaluated by Dr. Ersson, and complained of chronic
lower leg pain. Dr. Ersson ordered an x-ray of French’s leg. The x-ray was reviewed by Holter and,
although it did not show signs of infection, a bone scan was ordered. Dr. Ersson evaluated the bone
scan and concluded “that the bone scan had made a diagnosis of osteomyelitis (bone infection) or
hardware failure unlikely.” (Ersson Declaration (“Decl.”) ¶ 11.) French then met with Holter, who
did not review the bone scan, but nonetheless “recommended continuation of vicodin and elective
removal of the hardware in Mr. French’s left ankle.” Id. at ¶ 12. Dr. Ersson disagreed with Holter’s
recommendation that French undergo the procedure to remove hardware because elective procedures
are not authorized under corrections policy.
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French did not receive the Vicodin ordered by Holter on August 18, 2010. Ersson instead
started French on ibuprofen because, in his words, “there was no change in his chronic ankle
condition and [French] had been on no chronic pain medication outside jail.” (Ersson Decl. ¶ 14.)
French inquired as to why he did not receive the medication and was informed of Dr. Ersson’s
reasoning.
French continued to complain about ongoing pain and was finally prescribed Vicodin for the
period from August 31, 2010, through his release in October 2010.
Legal Standard
Summary 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)
(2011). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of
a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint, or with unsupported conjecture or
conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summary judgment should be entered against “a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell
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v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to
the existence of a genuine issue of fact should be resolved against the moving party. Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, deference to the nonmoving party has limits.
The nonmoving party must set forth “specific facts showing a genuine issue for trial.” FED. R. CIV.
P. 56(e) (2008) (emphasis added). The “mere existence of a scintilla of evidence in support of the
plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
Discussion
“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail
to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Therefore, the
government has an obligation to provide medical care for those it incarcerates. The standard for
finding that medical care is insufficient and, thus, violates the Eighth Amendment is “deliberate
indifference.” Id. at 104-105. This standard applies:
whether the indifference is manifested by prison doctors in their response to the
prisoner’s needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.
Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness
or injury states a cause of action under § 1983.
Id. The court should consider both the seriousness of the prisoner’s medical need and the nature of
the defendant’s response to that need. The defendant’s conduct is evaluated under a subjective
standard that “focuses only on what a defendant’s mental attitude actually was.” Toguchi v. Chung,
391 F.3d 1051, 1057 (9th Cir. 2004) (internal citations and quotation marks omitted). “If a prison
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official should have been aware of the risk, but was not, then the official has not violated the Eighth
Amendment, no matter how severe the risk.” Id.
The deliberate indifference that a prison inmate must demonstrate to be in violation of the
Eighth Amendment is greater than the standard for ordinary medical negligence. See Estelle, 429
U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the
victim is a prisoner.”). The prisoner must also show something more than a mere difference of
medical opinion. “To prevail under these principles, [the prisoner] must show that the course of
treatment the doctors chose was medically unacceptable under the circumstances,” and that this
course was pursued “in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). Furthermore, the prison
official must commit a purposeful and affirmative act. See King v. Atiyeh, 814 F.2d 565, 568 (9th
Cir. 1978) (“State officials are not subject to suit under section 1983 unless they play an affirmative
part in the alleged deprivation of constitutional rights.”). The prison official’s conduct must also
give rise to harm, although the harm need not be substantial. McGuckin v. Smith, 974 F.2d 1050,
1060 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,
1136 (9th Cir. 1997) (en banc).
French alleges that Defendants were deliberately indifferent to his serious medical need in
failing to furnish prescribed pain medication, resulting in his pain and suffering for the intervening
twenty-eight days. Defendants respond that French cannot establish a triable issue of fact that
medical staff at Inverness knew and disregarded an excessive risk to his safety. Rather, they contend
French’s complaint merely demonstrates that there was a difference of opinion as to the proper pain
medication. Defendants argue, further, that the level of consistently responsive medical care French
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received shows that he was not deprived of adequate medical care in violation of the Eighth
Amendment. French responds that his claim is based both on Ersson’s failure to provide the Vicodin
as ordered by Holter and his refusal to perform the hardware removal recommended by Holter.
I.
Medication
French contends that he should have continued to receive Vicodin to treat his pain, as the
ibuprofen he did receive was inadequate. He argues that Dr. Ersson wrongfully disregarded Holter’s
recommendation that French remain on Vicodin. Dr. Ersson explains that he did not continue French
on Vicodin because he French’s ankle pain was chronic and French was not taking Vicodin prior to
his incarceration.
It is well-established that a difference of medical opinion generally cannot support a claim
for deliberate indifference to serious medical needs. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989) (“A difference of opinion does not amount to a deliberate indifference to [an inmate’s] serious
medical needs.” (citations omitted)). “To establish that a difference of medical opinion over
appropriate medical treatment amounted to deliberate indifference, the prisoner ‘must show that the
course of treatment the doctors chose was medically unacceptable under the circumstances’ and ‘that
they chose this course in conscious disregard of an excessive risk to [the prisoner’s] health.’”
Lara-Cazares v. Dept. of Corrections, NO. C08-4395-TEH, 2010 U.S. Dist. LEXIS 140599, *17-18
(D. Nov. 9, 2010) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), cert. denied, 519
U.S. 1029 (citations omitted) (1996)).
In Tran v. Haar, NO. CV 10-07740 CJC (SS), 2012 U.S. Dist. LEXIS 2197 (C.D. Cal. Jan.
9, 2012), the court addressed a similar claim. The plaintiff alleged that the prison doctor was
deliberately indifferent to his medical needs when he prescribed an ineffective pain medication,
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rather than an effective one, following the inmate’s hernia operation. Id. at *8. The court wrote:
Plaintiff’s allegations concerning Defendants’ refusal to prescribe stronger, “effective
medication,” to manage his pain fail to state a claim for deliberate indifference. As
this Court has repeatedly explained, a plaintiff must allege that the defendant
purposefully ignored or failed to respond to a prisoner’s pain or possible medical
needs in order for deliberate indifference to be established. There must be a
conscious disregard of a serious risk of harm for deliberate indifference to exist.
Id. at *9-10 (internal citations and quotation marks omitted). The court explained that the plaintiff
was not refused pain medication, but was given medicine the doctor believed was appropriate to treat
his condition. As such, the court concluded that the plaintiff’s allegations “reflect[ed] merely a
difference of opinion between Plaintiff and Defendants as to the proper medication necessary to
relieve Plaintiff’s pain.” Id. at *10.
The situation in this case is only different because there was also a difference of opinion
between medical providers.
French was already injured when his period of incarceration
commenced. He was initially given ibuprofen for the pain, but was later prescribed a short course
of Vicodin, and then prescribed a course of Vicodin at a decreased dose. He was transferred to
Inverness, where he saw Holter, a physician’s assistant, and Dr. Ersson. Holter recommended that
French receive Vicodin, but Ersson disagreed and put French back on ibuprofen. He reasoned that
the Vicodin was unnecessary as French was not medicated prior to his incarceration. Although this
opinion is at odds with Holter’s recommendation and French’s own opinion, it does not present a
triable issue of fact as to whether there was deliberate indifference to French’s serious medical need.
II.
Surgical Procedure
In his complaint, French does not allege an Eighth Amendment violation based on being
refused a surgical procedure. French only mentions the surgical procedure in his fact statement
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wherein he notes that Holter said that he “needed to have a screw removed from the heel of [his]
foot[,]” and that she ordered Vicodin and told him she would see him “post-op.” (Complaint 4.)
The balance of the complaint focuses on the delay in receiving Vicodin, and at no point alleges an
injury or seeks redress based on denial of the procedure. He does argue this point in his briefs in
response to this motion but this issue was not pleaded and, therefore, is not properly before the court.
However, even if it were properly pleaded, this claim would not survive the motion for
summary judgment. First, as above, a difference of medical opinion cannot give rise to a Eighth
Amendment violation for deliberate indifference to a serious medical need. Although Holter
recommended “elective removal of the hardware in Mr. French’s left ankle[,]” Ersson concluded that
the procedure was elective and could be postponed until French was released from jail. This
represents a mere difference of medical opinion and, as such, does not create a genuine issue of
material fact that Defendants were deliberately indifferent to French’s serious medical need.
Conclusion
For the reasons stated, Defendants’ motion for summary judgment (#34) is GRANTED.
DATED this 13th day of March, 2012.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
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