Taplin v. Multnomah County Health Services et al

Filing 86

Opinion and Order. Given the undisputed facts of record, no genuine issue of material fact precludes summary judgment on Taplin's claims of deliberate indifference to his serious medical needs. For the reasons explained above, defendants' Motion for Summary Judgment 56 is GRANTED. Signed on 09/29/2017 by Judge Ann L. Aiken. (copy mailed to plaintiff) (jw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

DANTE LAMON TAPLIN,
Plaintiff,

Case No. 3:15-cv-01937-AA
OPINION AND ORDER

v.
MULTNOMAH COUNTY HEAL TH
SERVICES, DR. OLE ERSSON,
MULTNOMAH COUNTY SHERIFF'S
OFFICE, UNITED STA TES MARSHALL
SERVICE, DAVE BROWN,
Defendants.

AIKEN, District Judge:
Plaintiff Dante Taplin, an inmate formerly in the custody of Multnomah County and
appearing pro se, brings suit under 42 U.S.C. § 1983 against defendants Multnomah County
Health Department (MCHD), Dr. Ole Ersson, and the Multnomah County Sheriff's Office.
Taplin alleges that defendants violated his Fourteenth Amendment rights by refusing to provide
adequate medical treatment for his chronic ankle condition. Taplin seeks compensatory damages
and injunctive relief requiring defendants to provide ankle surgery.

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Defendants now move for summary judgment on all claims under Federal Rule of Civil
Procedure 56. For the reasons set forth below, defendants' motion is granted.
BACKGROUND
In 2014, Taplin was housed at the Multnomah County Inverness Jail (MCIJ) while in the
custody of the U.S. Marshal and awaiting federal charges. First Seale Deel. at 3 (ECF No. 57).
On May 8, 2014, Taplin sustained a right ankle injury playing basketball. According to his
medical records and self-reports, Taplin has had a history of ankle injuries and resulting
instability for several years. Id. at 3, 5 & Ex. 1 at 1-7, 17, 24.

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After Taplin's injury on May 8, 2014, MCHD staff ordered an x-ray which showed
evidence of chronic injuries and an avulsion fracture, with symptoms and treatment similar to
those associated with an ankle sprain. Id. at 4 & Ex. 1 at 8-10.

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On May 9, 2014, Dr. Ersson wrote to Taplin and stated, "Your foot xray is normal. Your
ankle xray showed a small avulsion fracture on the inside of the ankle. This is like a bad sprain
as no large bones are broken. Avoid weight bearing for a few days. I am scheduling an
appointment to discuss this." Id. at 4 & Ex. 1 at 12; Ersson Deel. at 2. Dr. Ersson ordered Taplin
to be placed on a lower bunk in a lower tier, extra blankets for elevation, and a wheelchair for

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several days to be followed by crutches. First Seale Deel. at 4 & Ex. 1 at 11, Ersson Deel. at 2.
On May 13, 2014, Taplin had additional x-rays of his ankle, which showed findings
similar to those observed on May 8, 2014. First Seale Deel. at 4 & Ex. 1 at 15.
On May 14, 2014, Physician Assistant (PA) Brook Holter examined Taplin. Seale Deel.
at 5; Holter Deel. at 2. Holter ordered a CT scan, copies of Taplin' s prior x-rays for comparison,
and a cane for Taplin to use. Holter Deel. at 2. Holter sought the CT scan to further evaluate

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Taplin's ankle and assess the possibility of a talar bone collapse. Id. Holter also ordered a cane
for Taplin's use and a follow-up appointment. Id.; First Seale Deel. at 5 & Ex. 1 at 14.
On May 27, 2014, Taplin had another x-ray of his ankle. The next day, Taplin was
transported to Portland Adventist hospital for the CT scan. First Seale Deel. at 5. The reviewing
physician found the May 27 x-rays consistent with Taplin's x-rays from May 8 and 13. Id. & Ex.
1 at 18-19. The reviewing physician at Portland Adventist found the CT scan compatible with
"old" injuries and mild degeneration and not suggestive of avascular necrosis or collapse of the
talar bone. Id. at 6 & Ex. 1 at 20.
On May 28, 2017, Holter reviewed Taplin's most recent x-rays and also found them
consistent with his previous x-rays. Holter Deel. at 2.
On June 4, 2017, Holter reviewed Taplin's CT scan. Holter noted that the scan indicated
a possible osteochondral lesion in the tibia, and not the talus, "which would not cause a talar
bone collapse." Id. Although such an injury "can heal on its own," Holter recommended referral
to an orthopedic specialist. Id. Dr. Ersson ordered the referral, pending approval by the U.S.
Marshals Service. First Seale Deel. at 6 & Ex. 1 at 14.
On July 17, 2014, Taplin was seen by Dr. Ersson, who prescribed a walking boot and a
cane. Id. at 6 & Ex. 1 at 22. Taplin complained about the efficacy of his pain medication, and Dr.
Ersson prescribed Flexeril, a muscle relaxant. Ersson Deel. at 3.
On June 30, 2014, the U.S. Marshals Service approved Taplin's referral to an outside
specialist for evaluation. First Seale Deel. at 6-7 & Ex. 1 at 21.
On September 11, 2014, Taplin was seen by Dr. Tomczak, a foot and ankle specialist at
Summit Orthopedics. Id. at 7. Taplin reported that he had a history of ankle sprains and
instability and that he was considering surgical treatment after his impending release from jail.
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After examining Taplin, Dr. Tomczak concluded, "Given the amount of instability and continued
symptoms despite conservative treatment, I believe it is reasonable to proceed with surgical
intervention, which would consist of ankle debridement and Brostrom lateral ankle stabilization
... The patient is agreeable to the treatment plan, which can be scheduled at his convenience." Id.
at 7 & Ex. 1 at 24.
On September 15, 2014, a nurse practitioner requested confirmation that Taplin would be
at MCIJ long enough to pursue surgery. The nurse practitioner apparently received a surgery
recommendation for Taplin's right ankle from a nurse rather than Taplin's treating providers.
First Seale Deel. at 8 & Ex. 1 at 27.
On September 19, 2014, the nurse practitioner forwarded a pre-authorization form to the
U.S. Marshals Service seeking authorizing for debridement surgery and scheduled a preoperative appointment for October 23, 2014 at 9:00 a.m. Id. This appointment was canceled
when approval for the procedure was not received from the U.S. Marshals Service until later that
day. Pl.'s Brief in Opp'n, Ex. 14 (ECF No. 67).
On October 23, 2014, a medical provider indicated that "this surgery is non emergent, a
chronic problem ongoing since at least 2012; and is considered elective. Client may proceed with
re-evaluation after release from custody." First Seale Deel. Ex. 1 at 27. Holter also reviewed Dr.
Tomczak's report and opined that Taplin's condition would "not significantly worsen while [he]
is incarcerated" and that the surgery could wait until Taplin was released. Holter Deel. at 3.
On October 24, 2014, Dr. Ersson reviewed Dr. Tomczak's report and determined the

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surgery to be non-emergent. Ersson Deel. at 3. The same day, he informed Taplin that the

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"procedure recommend by Dr. Tomczak is elective. This means you will need to get this done

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after release from Multnomah County custody. In the meantime, our orthopedist recommends
continuing to wear your boot for ankle stabilization." First Seale Deel. at 9 & Ex. 1 at 28.
On December 11, 2014, Taplin was transferred to the Federal Correctional Institution at
Sheridan (FCI Sheridan). Id. at 9. Taplin informed the Bureau of Prisons that surgery for his
ankle was recommended, but surgery apparently was not provided. Id. Ex. 1 at 32.
On April 23, 2015, Taplin was transferred to Multnomah County custody. He was seen
several times for repairs to his walking boot and received orders for a lower bunk on a lower tier,
a walking boot, a cane, and extra blankets to elevate his foot. Id. at 10 & Ex. 1 at 33-37.
On May 21, 2015, Taplin returned to FCI Sheridan. Medical records note, "Walking boot
in place" and "Exam deferred." Id. & Ex. 1 at 45.
In August 2015, Taplin returned to Multnomah County custody. Taplin again requested
surgery. He was provided a lower bunk, blankets for elevation, a walking boot, and pain
medication. Id. & Ex. 1 at 49-52. In September 2015, "no change" was noted in Taplin's
symptoms. Pl.'s Brief in Opp'n, Ex. 21.
On March 30, 2016, Taplin was transported to a Oregon Department of Corrections'
facility. First Seale Deel. at 10 & Ex. 2.
On September 27, 2016, Taplin again returned to Multnomah County custody on new
charges. Id. He had not received surgery for his ankle. Taplin arrived in custody with a fractured
hand, and on October 10, 2016, he had successful surgery at Legacy Emanuel Hospital. Id. & Ex.
1 at 56-59.
In October 2016, Taplin received medical shoes, a cane, and right ankle brace. In
November 2016, Taplin was permitted his personal shoes with orthotic inserts. Id. Ex. 1 at 5444; Second Seale Deel. at 2 (ECF No. 84).
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In February 2017, Taplin complained of radiating pain in his right leg and was prescribed
medication. Second Seale Deel. at 2.
In August 2017, Taplin was convicted of state law charges and transferred to the custody
of the Oregon Department of Corrections at the Coffee Creek Correctional Facility. See Pl.'s
Notice of Address Change (ECF No. 85).
DISCUSSION
Taplin alleges claims of deliberate indifference to his serious medical needs as a pretrial
detainee under the Fourteenth Amendment. Anderson v. Cnty. of Kern, 45 F.3d 1310, 1312, as

amended on denial of reh 'g, 75 F.3d 448 (9th Cir. 1995) (stating that the "convicted inmates'
challenge is evaluated under the Eighth Amendment, and the pretrial detainees' challenge is
evaluated under the Fourteenth Amendment"); see also Estelle v. Gamble, 429 U.S. 97, 103
(1976) ("An inmate must rely on prison authorities to treat his medical needs"); Johnson v.

Lewis, 217 F .3d 726, 731 (9th Cir. 2000) ("Prison officials have a duty to ensure that prisoners
are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety.").
Defendants move for summary judgment on grounds that the evidence does not
demonstrate deliberate indifference to Taplin's ankle injury. To prevail, defendants must show
that there is no genuine dispute as to any material fact and they are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

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court must construe the evidence and draw all reasonable inferences in the light most favorable
to Taplin. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
To sustain a claim for deliberate indifference to his serious medical needs, Taplin must
establish: 1) the existence of "a serious medical need"; and 2) "the defendant's response to the
need was deliberately indifferent." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing
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Gamble, 429 U.S. at 104). "A 'serious' medical need exists if the failure to treat a prisoner's
condition could result in further significant injury or the 'unnecessary and wanton infliction of
pain.'" Doty v. Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (citation omitted). Deliberate
indifference under the Fourteenth Amendment is shown when a prison official knew or should
have known that a detainee faced a "substantial risk of serious harm" and failed to take
reasonable measures to abate the risk. Farmer, 511 U.S. at 847; see also Castro v. Cnty. of Los
Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016) (en bane), cert denied, Los Angeles Cnty. v.
Castro, 137 S. Ct. 831 (2017). 1 Prison officials may demonstrate deliberate indifference by
denying, delaying, or intentionally interfering with medical treatment, or by the manner in
which they provide medical treatment. Jett, 439 F.3d at 1096; Hallett v. Morgan, 296 F.3d 732,
744 (9th Cir. 2002). Where a prisoner alleges a delay in receiving medical treatment, the delay
must have led to "significant harm." Hallett, 296 F.3d at 746.
Taplin was not denied medically necessary treatment for his ankle. According to the
evidence presented, MCHD staff ordered x-rays the same day Taplin injured his ankle playing
basketball. Dr. Ersson also ordered a lower bunk, ice, a wheelchair, and blankets for elevation.
Medical providers determined Taplin had chronic ankle instability, and it is undisputed that he
received pain medication, a cane and walking boot, further x-rays, a CT scan at an outside
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The Eighth Amendment standard for deliberate indifference includes a subjective
element; "the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan,
511 U.S. 825, 837 (1994). The Ninth Circuit has held that deliberate indifference under the
Fourteenth Amendment differs from that under the Eighth Amendment and does not require
pretrial detainees to establish subjective intent or awareness when alleging failure-to-protect
claims. Castro, 833 F.3d at 1068-71 (discussing Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015)). The Ninth Circuit has not indicated whether the "objective" deliberate indifference test
applies to pretrial detainee claims of inadequate medical treatment. Regardless, "any possible
divergence" from the subjective Eighth Amendment standard does not affect my decision in this
case. Anderson, 45 F.3d at 1313, n. l.
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hospital, and an appointment with an outside orthopedic specialist. As described above and

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demonstrated by the record, Taplin was examined by staff on a regular basis in 2014 regarding

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his ankle and other complaints. When he returned to Multnomah County custody in 2015 and

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2016, MCHD continued to treat Taplin's ankle conservatively, again providing him with a cane,
pain medication, a lower bunk and tier, and a stabilizing walking boot.
More recently, MCHD allowed Taplin to obtain personal shoes and orthotics to help with
ankle support and also provided him with a new ankle brace. Second Seale Deel. Ex. 1 at
TAP055-0067, TAP0083, TAP0092. While Taplin complained of ankle pain in February 2017,
in March he reported that his "main concern" was itching, and in June he was observed to
ambulate "without difficulty" and with "no facial grimacing of pain." Id. Ex. 1 at TAPO 100,
TAP0109, TAP0134. The submitted medical evidence does not reflect any worsening ofTaplin's
ankle condition to suggest deliberate indifference to Taplin's medical needs. See First Seale
Deel. & Ex. 1; Second Seale Deel. & Ex. 1. 2
Granted, Dr. Ersson did not approve surgical treatment for Taplin's ankle instability and
instead chose to continue with conservative treatment. To establish deliberate indifference on
this basis, Taplin must set forth sufficient facts suggesting ''that the course of treatment" Dr.
Ersson "chose was medically unacceptable under the circumstances" and was chosen "in
conscious disregard of an excessive risk" to Taplin's health. Hamby v. Hammond, 821 F.3d

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The court requested current information regarding Taplin's expected custody status and
recent medical records, in part due to Taplin's claim for injunctive relief. However, Taplin
reports that he recently was convicted on state law charges and is now housed at Coffee Creek
Correctional Facility, a state institution. Pl.'s Notice of Address Change. Defendants report that
Taplin is not expected to return to Multnomah County custody. Defs.' Status Report at 2 (ECF
No. 82). Accordingly, Taplin's request for injunctive relief is moot in any event. Rhodes v.
Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005).
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1085, 1094 (9th Cir. 2016) (citation omitted). The record does not suggest that Dr. Ersson's
choice of conservative treatment was medically unacceptable.
Importantly, the record reflects that Taplin has suffered from ankle instability for many
years, dating back to 2004, with similar symptoms. First Seale Deel. at 3, 5 & Ex. 1 at 1-7, 24.
No medical provider has opined that surgery was or is medically necessary to avoid further
injury; rather, an orthopedic specialist found it "reasonable" for Taplin to pursue surgery "at his
convenience." First Seale Deel. Ex. 1 at 24. Holter reviewed the specialist's opinion and found
that Taplin's condition would not worsen while in Multnomah County custody and that surgery
could wait until Taplin was released. Holter Deel. at 3. An MCHD nurse practitioner likewise
reviewed the chart and concluded that the surgery was an elective procedure. First Seale Deel. at
9. Finally, Dr. Ersson reviewed the specialist's report along with the comments of Holter and the
nurse practitioner and determined that the "consensus" indicated surgery was elective. Id. at 9;
Ersson Deel. at 3 ("According to all three of these notes, the surgery was determined to be nonemergent and could be scheduled at Mr. Taplin's convenience once he was out of custody.").
At most, the record reflects a potential difference of opinion between medical providers
regarding Taplin's need for surgery. Hamby, 821 F.3d at 1094 (a "course of non-surgical
treatment pursued by the prison officials" was "not indisputably unconstitutional" and amounted
to "possible negligence" at most); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (holding
that prison physicians did not act with deliberate indifference when pursuing nonsurgical
treatment after one prison physician recommended surgery). Even if Dr. Tomczak's
recommendation was "correct" and Dr. Ersson misdiagnosed Taplin's ankle condition,
inadequate medical treatment due to negligence or inadvertence does not rise to the level of a
constitutional violation. Gamble, 429 U.S. at 105-06; Toguchi v. Chung, 391 F.3d 1051, 1057
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(9th Cir. 2004) ("negligence in diagnosing or treating a medical condition" does not support a
claim for deliberate indifference) (citation omitted). The fact that Taplin preferred surgery does
not render Dr. Ersson's chosen course of treatment deliberately indifferent. 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 (9th Cir. 2014) (en banc). 3
To the extent Taplin maintains that he was denied pain medication, the record does not
support this claim. Taplin was prescribed pain medication on several occasions and the medical
records reflect his lack of compliance with his prescription. Pl.'s Brief in Opp'n, Ex. 9. While
Taplin requested a renewed prescription for the muscle relaxant Flexeril in September 2014, the
alleged failure to refill a muscle relaxant does not establish a constitutional violation when
Taplin requested a refill one time after his prescription expired. Id. Ex. 2.
Given the undisputed facts of record, no genuine issue of material fact precludes
summary judgment on Taplin's claims of deliberate indifference to his serious medical needs.
CONCLUSION

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For the reasons explained above, defendants' Motion for Summary Judgment (ECF No.
56) is GRANTED.
IT IS SO ORDERED.
DA TED

this $of

September, 2017.

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Ann Aiken
United States District Judge

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Taplin's claims against Multnomah County Sheriffs Office and MCHD also fail
because he does not identify a policy, practice or custom to support municipal liability, aside
from the "custom" of allowing physicians to determine the course of medical treatment. PL 's
Brief in Opp'n at 10. However, such a custom did not cause a violation of Taplin's constitutional
rights. City of Canton v. Harris, 489 U.S. 378, 389 (1989).
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