Bean v. Sazie, et al
OPINION AND ORDER: Defendants Motion for Summary Judgment (ECF 53 ) is GRANTED, and Defendants Motion to Stay Discovery (ECF 57 ) is DENIED AS MOOT. Signed on 7/17/2017 by Judge Michael H. Simon. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:12-cv-2166-SI
OPINION AND ORDER
ELIZABETH SUZANNE SAZIE, et al.,
Lisa Bean, pro se.
Ellen F. Rosenblum, Attorney General, Robert E. Sullivan, Senior Assistant Attorney General,
and Rachel E. Bertoni, Assistant Attorney General, OREGON DEPARTMENT OF JUSTICE, 1162
Court Street NE, Salem, OR 97301. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
From May 2010 through April 2012, Plaintiff was an inmate in the Coffee Creek
Correctional Facility (“CCCF”) operated by the Oregon Department of Corrections (“ODOC”).
Plaintiff originally was represented by counsel when she filed this lawsuit against several
employees of the ODOC. In her complaint, Plaintiff asserts two claims. First, Plaintiff alleges
that Defendants violated 42 U.S.C. § 1983 by subjecting her to cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments when they denied and delayed providing
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Plaintiff with necessary medical treatment. Second, Plaintiff alleges that Defendants are liable
for common law medical negligence.
On June 22, 2016, Defendants moved for summary judgment and to stay discovery.
Plaintiff’s counsel requested an extension of time to respond, explaining that Plaintiff was in the
process of obtaining expert reports. Plaintiff added, “[i]f that does not materialize, Plaintiff will
have to explore other options.” ECF 59 at 2. The Court granted Plaintiff’s request and allowed
Plaintiff to have until January 11, 2017, to respond to Defendants’ motion for summary
judgment. On October 28, 2016, Plaintiff’s counsel moved to withdraw, stating only that
Plaintiff has terminated her counsel’s attorney-client relationship. On November 4, 2016, the
Court allowed Plaintiff’s counsel to withdraw and gave Plaintiff until April 4, 2017, to respond
to Defendants’ motion for summary judgment. Plaintiff neither responded to Defendants’ motion
for summary judgment nor requested any further extensions of time. For the reasons that follow,
Defendants’ motion for summary judgment is granted, and Defendants’ motion to stay discovery
is denied as moot.
A party is entitled to summary judgment 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). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
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the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
A court may not grant summary judgment by default. Heinemann v. Satterberg, 731
F.3d 914, 916-17 (9th Cir. 2013). When a party fails to respond to a fact asserted by the movant,
a court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that
the movant is entitled to it; or (4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). By amendment passed in 2010, this rule incorporated the “deemed
admitted” practice of many courts—when a party fails to respond to an asserted fact, that fact
may be “deemed admitted” (i.e., accepted as undisputed). Heinemann, 731 F.3d at 917.
Accepting a proposed fact as undisputed, however, does not mean that summary judgment
automatically follows. After considering the facts that the court has found undisputed for want of
a response and those that cannot genuinely be disputed based on the movant’s evidence, a court
must still determine the appropriate legal consequences. Id.
Plaintiff was incarcerated at CCCF until April 26, 2012. Sometime after Plaintiff was
released, she was diagnosed by her private health care providers with a bacterial infection and a
hernia with possibly enlarged organs. Plaintiff’s healthcare providers began treating Plaintiff for
her infection and hernia.
Defendants are six employees of the ODOC. Plaintiff alleges that shortly after beginning
her incarceration, she complained to CCCF’s medical staff about acute abdominal pain and
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distress. Plaintiff also alleges that on December 4, 2010, she fell and fractured her left wrist.
Plaintiff asserts that Defendants denied and delayed providing her with necessary digestive
treatment and wrist surgery in violation of her constitutional rights and state tort law.
Plaintiff further alleges that ultrasound tests were taken, but no extensive blood test or
other diagnostic tests were performed. Plaintiff adds that she was treated for heartburn and acid
reflux and given medications that did not adequately address her pain or medical concerns.
Plaintiff also alleges that no X-rays were taken of her wrist for two weeks after her fall. Plaintiff
further alleges that a physician named Dr. Knight, a hand specialist who is not a defendant,
referred Plaintiff for a CT scan on February 9, 2011, which did not occur, and that an orthopedic
surgeon named Dr. Becker (who also is not a defendant) provided a second opinion on two
occasions, June 23, 2011, and July 6, 2011.
As alleged in Plaintiff’s Complaint, Defendant Ridgley1 treated Plaintiff for her
abdominal and wrist injuries. Defendant Coffey, a registered nurse, was part of the Therapeutic
Levels of Care Committee (“TLC”) that denied approval of Plaintiff’s surgery, after concluding
that it was elective. (Plaintiff does not specify whether the surgery to which she refers was
related to her abdominal concerns or her wrist injury.) Defendant Sazie, the Chief Medical
Officer of CCCF, was part of the same TLC that denied approval of Plaintiff’s surgery. On both
June 21, 2011, and December 14, 2011, Dr. Sazie again denied approval of Plaintiff’s surgery.
Defendant Magi,2 a nurse, allegedly negligently and needlessly snapped down Plaintiff’s left
wrist after removing it from a splint while examining Plaintiff, allegedly causing great pain and
In their motion for summary judgment, Defendants identify Defendant Ridgley as nurse
practitioner Janet Ridgley.
On June 22, 2016, Defendants informed the Court that Defendant Magi passed away in
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exacerbation of Plaintiff’s fractured wrist. Defendant Elliot, a nurse practitioner, also allegedly
negligently treated Plaintiff during the course of 18 months and allegedly negligently affixed a
splint, causing additional pain and discomfort. Defendant Shelton, ODOC’s Chief Medical
Officer, allegedly advised Plaintiff on November 29, 2011, that Plaintiff’s fracture would not
heal on its own due to the nature of the injury and Plaintiff’s arthritis. On February 13, 2012,
Shelton responded to a grievance appeal, allegedly stating that reconstructive surgery of
Plaintiff’s wrist was not approved by the TLC.
Plaintiff alleges that as a result of Defendants’ actions and inactions she has suffered
severe pain, suffering, limited range of motion, bone deformities due to long-term
immobilization without surgical intervention, and likely permanent injury and irreversible
impairment due to the delayed care to her digestive system and left broken wrist. In her
Complaint, Plaintiff states that she continues to suffer from abdominal pain and discomfort.
In support of their motion for summary judgment, Defendants submitted declarations
from Dr. Sazie, Dr. Eric Stephen Yao (an orthopedic surgeon), and Dr. Richard W. Brandes (a
physician who is board-certified in internal medicine and gastroenterology). Dr. Sazie’s
declaration includes a detailed chronology of Plaintiff’s relevant medical concerns and treatment,
based on Plaintiff’s ODOC medical records, which are attached to Dr. Sazie’s declaration.
Dr. Yao, in his declaration, concludes based upon his experience and training and his review of
Plaintiff’s medical records, that Plaintiff received appropriate evaluation and care for her
reported injury to her left wrist. He adds that the evaluation and treatment of Plaintiff while she
was in ODOC custody was consistent with the community standard of care. Dr. Brandes in his
Based on the medical record of care provided while [Plaintiff] was
in ODOC custody, [Plaintiff] received appropriate evaluation and
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care for her reported acute abdominal pain, IBS [irritable bowel
syndrome] and reflux (heartburn). A medically appropriate regime
addressed her IBS-related constipation, specifically fiber,
dicyclomine, and to increase her water intake.
Based on my expertise in gastroenterology, my opinion, to a
reasonable degree of medical certainty, is that while she was
within ODOC custody, appropriate measures, consistent with the
community standard of care, were taken in the evaluation and
treatment of [Plaintiff].
ECF 55, ¶¶ 14, 15. Based on this evidence, Defendants argue that they are entitled to summary
judgment against both claims asserted by Plaintiff.
The treatment that a prisoner receives in prison and the conditions of her confinement are
subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).
In Farmer v. Brennan, the Supreme Court explained:
The [Eighth] Amendment also imposes duties on these officials,
who must provide humane conditions of confinement; prison
officials must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must take reasonable measures to
guarantee the safety of the inmates[.]
511 U.S. 825, 832 (1994) (citations and quotations omitted). A prison official violates a
prisoner’s Eighth Amendment rights based on deliberate indifference only when the claim
satisfies both an objective and subjective inquiry. Farmer, 511 U.S. at 834; Lopez v. Smith, 203
F.3d 1122, 1132-33 (9th Cir. 2000).
To meet the objective element, in the context of a claim for failure to provide medical
care, a plaintiff must establish a “serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104
(1976). A serious medical need is the kind of injury that “a reasonable doctor or patient would
find important and worthy of comment or treatment; . . . that significantly affects an individual’s
daily activities; or [causes] chronic and substantial pain.” Lopez, 203 F.3d at 1131 (citation
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omitted). The subjective inquiry requires a showing that corrections officers acted with
deliberate indifference to a plaintiff’s serious medical needs. Id. at 1132. “[A] prison official
cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate health or
safety . . . .” Farmer, 511 U.S. at 837.
In addition, the Ninth Circuit has held that “a difference of opinion between a physician
and the prisoner—or between medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085,
1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in
part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)).
Instead, “[t]o show deliberate indifference, the plaintiff ‘must show that the course of treatment
the doctors chose was medically unacceptable under the circumstances’ and that the defendants
‘chose this course in conscious disregard of an excessive risk to the plaintiff’s health.’” Id.
(quoting Snow, 681 F.3d at 988).
Defendants’ medical experts, Dr. Yao and Dr. Brandes, have reviewed Plaintiff’s relevant
medical records. Based on those records, as well as on their training and experience, Dr. Yao and
Dr. Brandes each concluded that Plaintiff “received appropriate evaluation and care for her
reported injury” that was “consistent with the community standard of care.” ECF 54, ¶13;
ECF 55, ¶¶ 14, 15. Because Plaintiff has failed to respond to these conclusions reached by
Defendants’ experts, the Court considers these conclusions to be undisputed facts for purposes of
Defendants’ motion for summary judgment. See Fed. R. Civ. P. 56(e). These undisputed facts
show that Defendants were not deliberately indifferent to Plaintiff’s medical needs. Thus,
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Plaintiff has failed to show a genuine issue of material fact, and summary judgment in favor of
Defendants on Plaintiff’s first claim is appropriate.
Defendants also move for summary judgment against Plaintiff’s second claim, alleging
common law medical negligence. Defendants argue that based on the undisputed facts, they were
not negligent in treating Plaintiff’s wrist condition or gastrointestinal complaints. Under the facts
deemed admitted based on Plaintiff’s failure to respond to Defendants’ evidence along with the
evidence submitted by Defendants, the Court agrees that summary judgment in favor of
Defendants against Plaintiff’s second claim also is appropriate. Thus, it is unnecessary for the
Court to address Defendant’s additional arguments, including Defendants’ arguments under the
sovereign immunity and qualified immunity doctrines.
Defendants’ Motion for Summary Judgment (ECF 53) is GRANTED, and Defendants’
Motion to Stay Discovery (ECF 57) is DENIED AS MOOT.
IT IS SO ORDERED.
DATED this 17th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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