Price v. Shelton et al

Filing 58

OPINION AND ORDER. The Court GRANTS Defendants Motion 44 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 6/15/20 by Judge Anna J. Brown. See attached 32 page Opinion and Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAURIE PRICE,
Plaintiff,
v.
DR. STEVE SHELTON; DR. ROBERT
SNIDER; MENDOZA, RN; and
DR. PENG,
Defendants.
JUAN C. CHAVEZ
P.O. Box 5248
Portland, OR 97208
[phone] ext. 212
Attorney for Plaintiff
ELLEN F. ROSENBLUM
Attorney General
NATHANIEL AGGREY
Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301-4096
[phone]
Attorneys for Defendants
1 - OPINION AND ORDER

3:18-cv-00540-BR
OPINION AND ORDER

BROWN, Senior Judge.
This matter comes before the Court on Defendants’ Motion
(#44) for Summary Judgment.

The Court concludes the record is

sufficiently developed, and, therefore, oral argument would not
be helpful to resolve this Motion.

For the reasons that follow,

the Court GRANTS Defendants’ Motion.

BACKGROUND
The following facts are taken from Plaintiff’s Amended
Complaint and the parties’ materials related to Defendants’
Motion for Summary Judgment and are viewed in the light most
favorable to Plaintiff.
At all relevant times Plaintiff Laurie Price was an inmate
at Coffee Creek Correctional Facility (CCCF).
On Plaintiff’s May 7, 2013, intake form completed when she
entered custody at CCCF Plaintiff reported the following medical
and mental-health issues:
Lumbar spondylosis, abdominal aneurysm, thyroid
problems, heart arrhythmia, irregular heartbeat,
chronic ear infections, chronic bronchitis,
chronic emphysema, asthma, chronic pain in back,
prolapsed bowel/impactions, arthritis, stomach
trouble, Gastrointestinal /Crohn’s disease related
symptoms, rectal bleeding/hemorrhoids, and had
been hospitalized for several medical issues,
among others.
Joint Statement of Agreed Facts at 2.

Plaintiff also reported on

her intake form that she suffered panic attacks and took various
2 - OPINION AND ORDER

medications for anxiety.

Plaintiff states in her Response to

Defendants’ Motion for Summary Judgment that the “period . . . at
issue in this case begins with . . . her issues with rectal
bleeding around February 9, 2015.”
On February 9, 2015, Plaintiff underwent a colonoscopy and
upper endoscopy to evaluate her “gastrointestinal bleed, iron
anemia, and an upper GI bleed.”
at 3.

The

Joint Statement of Agreed Facts

colonoscopy and upper endoscopy reflected proctitis,

left-sided colitis, and “mild gastritis.”
Ex. 1 at 1.

Decl. of Juan Chavez,

A March 17, 2015, chart note reflects a biopsy of

Plaintiff’s colon showed ulcerative colitis, a biopsy of her
small intestine and stomach was benign and did not reflect celiac
disease, and a “polyps biopsy” was negative for Pylori.
Decl., Ex. 1 at 2.

Chavez

On March 20, 2015, Plaintiff requested

information on Crohn’s disease and a “low residue” or a glutenfree diet.

Id.

Defendant Nurse Mendoza advised Plaintiff that a

gluten-free diet was “not indicated” for her condition.

Id.

Nevertheless, on April 17, 2015, Plaintiff “was approved a low
residue diet for one year.”

Joint Statement of Agreed Facts

at 4.
On December 29, 2015, Plaintiff requested Ensure “due to
history of Crohn’s disease” and because of her weight loss.
Nurse Mendoza noted “no significant findings” on examination of
Plaintiff and advised Plaintiff that Ensure “isn’t medically
3 - OPINION AND ORDER

necessary.”

Chavez Decl., Ex. 4 at 1.

Plaintiff was seen by medical staff at CCCF approximately 12
times between December 29, 2015, and April 10, 2016, for issues
related to her various conditions.
On April 10, 2016, Plaintiff was admitted to the infirmary
at CCCF “due to an exacerbation of her uncreative [sic] colitis.”
Joint Statement of Agreed Facts at 5.

Plaintiff was referred to

Legacy Meridian Park Hospital and admitted at 8:20 a.m.
Plaintiff reported abdominal pain, blood in her stool, and
abdominal distention.

Plaintiff “was examined by Dr. Van Kleek

who ordered labs and a computed tomography scan . . .
[Plaintiff’s] abdomen and pelvis.”

Id.

of

Diagnostic testing

reflected Plaintiff did not have anemia, but she did have “some
hypokalemia” and “C. difficile colitis.”

Id.

Dr. Van Kleek

diagnosed Plaintiff with “gastrointestinal hemorrhage and an
unspecified gastrointestinal hemorrhage type.”
Kleek prescribed Prednisone “20 mg tablet.
mouth daily each day x 1 week.
week.

Id.

Dr. Van

Take 2 tablets by

1 tablet each day for the 2nd

½ tablet for the 3rd week.

No refills.”

Id.

Dispense/supply:

30 tablets.

Plaintiff was discharged from Legacy Meridian

Park Hospital at 12:43 p.m. and transported back to the infirmary
at CCCF.
On April 11, 2016, Plaintiff “no longer had bloody stool and
was discharged from the infirmary.”
4 - OPINION AND ORDER

Joint Statement of Agreed

Facts at 5.
On April 22, 2016, Plaintiff reported to medical staff that
“they put me in the kitchen!
having a flare. . . .

I can’t work!

I have Crohn’s,

I need to be medically unassigned.”

Chavez Decl., Ex. 6 at 1.
On April 25, 2016, Plaintiff was seen by Nurse Mendoza.
Plaintiff advised Nurse Mendoza that she could not work in the
kitchen due to her Crohn’s flare-up.

Plaintiff reported rectal

discomfort, but she denied rectal bleeding.

Nurse Mendoza took

Plaintiff off of kitchen work detail.
On April 28, 2016, the medical record reflects a corrections
officer requested medical emergency support related to Plaintiff:
Per officer report, pt observed vomiting into a
bucket at her bedside x20 min; prior to that pt
out in BR on toilet x30 min. Pt reported to
officer that she filled the toilet with blood, and
that she is too weak to walk to the BR from her
bunk. “Ferguson, if you can’t send me to the
hospital, send me back to my unit; they won’t do
[illegible] for me in the infirmary.”
Chavez Decl., Ex. 6 at 3.
infirmary.

Plaintiff was admitted to the CCCF

Defendant Robert Snider, M.D., “referred [Plaintiff]

to an outside emergency department for further evaluation.

The

emergency-department doctor recommended Plaintiff “taper off
prednisone, two 20 mg tablets daily 1 week, then one 20 mg tablet
daily 1 week, then one 10 mg tablets daily.”

Joint Statement of

Agreed Facts at 6.
On April 29, 2016, Plaintiff was admitted to Legacy Meridian
5 - OPINION AND ORDER

Park Hospital for evaluation and treatment of her gastrointestinal issues.
days.

Plaintiff remained at the hospital for 18

When Plaintiff checked in on April 29, 2016, a CT scan of

her abdomen and pelvis reflected a “mild increase . . . in the
rectal wall thickening consistent with proctitis.
mass again identified unchanged.”
Facts at 6.

Large uterine

Joint Statement of Agreed

An x-ray of Plaintiff’s abdomen showed “[n]o signs

of obstruction of free air.
sigmoid colon.”

Distention of a portion of the

Id.

On May 3, 2016, Plaintiff underwent a flexible sigmoidoscopy
that reflected “[p]atchy indurated erythema without fluctuance or
fistula opening[,] . . . [r]ectal tenderness and non-thrombosed
external hemorrhoids[, and] . . . [i]nflammation . . . from the
anus to the rectum secondary to left-sided ulcerative colitis.”
Joint Statement of Agreed Facts at 6.

Plaintiff also underwent

“several x-rays” of her abdomen and a pulmonary bronchoscopy.
On May 17, 2016, Plaintiff was discharged from Legacy
Meridian Park Hospital.

Plaintiff’s discharge notes stated she

“requested more narcotics and more anxiety medications,” but “she
was advised about the need to taper down on those medications.”
Joint Statement of Agreed Facts at 6.

Plaintiff’s discharge

notes reflected Plaintiff “understands that she needs to wean
down her doses of narcotics because she’s developed some bowel
sluggishness from them,” but Plaintiff advised “she’s right on
6 - OPINION AND ORDER

the edge of receiving adequate pain and anxiety medications, and
that she would not tolerate any more decreases.”

Id.

Finally,

Plaintiff’s discharge summary also noted she could “return to her
regular diet.”

Id.

On May 18, 2016, Dr. Snider saw Plaintiff to manage her
medication and anxiety after her return from Legacy Meridian Park
Hospital.

On May 19, 2016, Dr. Snider referred Plaintiff back to

the hospital.

She was admitted on May 20, 2016.

Plaintiff’s

“[n]arcotic bowel was thought to contribute to [her] dilated
colon,” and, therefore, Plaintiff’s prescription for MS Contin
was tapered to “15 mg. every 12 hours and her Zanax dose was
increased to make the narcotic taper tolerable.”
of Agreed Facts at 7.

Joint Statement

Plaintiff was discharged from Legacy

Meridian Park Hospital on May 27, 2016, with the instruction that
she could return to her “regular diet.”

Id.

On June 20, 2016, Plaintiff was admitted to Legacy Meridian
Park Hospital for eight days for “a lung cavity workup.”
Statement of Agreed Facts at 7.

Joint

Plaintiff underwent a “wedge

biopsy . . . with Video-Assisted Thoracoscopic Surgery” without
complications.

Her “biopsy results were negative and without

evidence [of] infectious or malignancy process.”
of Agreed Facts at 7.

Joint Statement

Plaintiff was diagnosed with “C. difficile

colitis, Cytomegalovirus (CMV) colitis, COPD, high blood
pressure, pulmonary cavitary lesion, reaction to QuantiFERON-TB
7 - OPINION AND ORDER

test, and ulcerative recto sigmoiditis with GI bleeding.”

Id.

On June 28, 2016, Plaintiff was discharged, directed to “finish
her CMV medication[,] and [told] to follow-up for further
evaluation as needed.”

Id.

On July 11, 2016, Plaintiff was again admitted to Legacy
Meridian Park Hospital and diagnosed with chronic colitis with
“severe activity/ ulceration and refractory ulcerative colitis.”
Joint Statement of Agreed Facts at 7.

Plaintiff underwent a

laparoscopic total abdominal colectomy with end ileostomy, which
is “a surgical procedure [that brings] the end or loop of the
small intestine out onto the surface of the skin.”

Id.

On

July 28, 2016, Plaintiff was discharged from Legacy Meridian Park
Hospital.

“Although a low residue diet was suggested, the

discharge summary stated that she was able to take regular food
before her discharge and had a Stoma bag for collecting semisolid
stool.”

Id.

Plaintiff was directed to have “follow-ups for IVC

filter removal and to schedule a follow-up on her treatment as
needed.

[She was] given Dilaudid 4 mg (an opioid used to treat

moderate to severe pain) by mouth for pain management.”

Id.

On July 29, August 18, and September 8, 2016, Plaintiff had
follow-up appointments with various doctors.
On February 8, 2017, Plaintiff was seen by Defendant Louis
Peng, M.D., “to discuss [Plaintiff’s] post-operative
medications.”

Joint Statement of Agreed Facts at 8.

8 - OPINION AND ORDER

On March 14, 2017, Plaintiff was admitted to Legacy Meridian
Park Hospital for “an elective hysterectomy due to a large
uterine mass and creation of an ileoanal pouch after completion
proctectomy.”

Joint Statement of Agreed Facts at 8.

On

March 27, 2017, Plaintiff was “tolerating her diet well[,] her
pain was controlled with post-op medications,” and she was
discharged.
On March 31, 2017, Plaintiff requested a low-residue diet,
but her request was denied because there was not any medical
indication for that diet.
On April 20, 2017, Plaintiff was seen by Dr. Peng to discuss
the lidocaine patch that Plaintiff had received for pain
management, “which was ordered to be cut in half to place at
different areas.”

Joint Statement of Agreed Facts at 8.

Dr. Peng noted Plaintiff had been on opiates for her March
surgery and “was tapered or weaned off her oxycodone on 4/20/17,”
but she had a current prescription for Klonopin.

Dr. Peng noted

“as they continue to prepare for [Plaintiff’s] next surgery for
establishing bowel control, he was afraid the issue around pain,
opiates, constant medical attention will only increase.”

Joint

Statement of Agreed Facts at 8-9.
On August 8, 2017, Plaintiff was admitted to Legacy Meridian
Park Hospital and underwent an ileostomy-reversal surgery.

At

the time of her discharge on August 23, 2017, Plaintiff “was
9 - OPINION AND ORDER

tolerating normal diet, having bowel movements[,] and [her] pain
was managed with oral pain meds.”

Joint Statement of Agreed

Facts at 9.
On January 3, 2018, Plaintiff was seen by CCCF medical staff
due to abdominal-scar pain “with a non-productive cough.”
Statement of Agreed Facts at 9.

Joint

An evaluation by medical staff

did not show any evidence of bacterial pneumonia or respiratory
distress.
x-ray.

On January 16, 2018, Plaintiff had a negative chest

On January 23, 2018, Plaintiff was seen by Dr. Peng for a

weekly check-up, and
[t]hey discussed that her renal issues were
negative except for a simple right renal cyst,
[that she had an] unremarkable ultrasound, . . .
that her pneumonia had resolved[,] . . . TLC’s
approval for Protonix (a medication used to treat
symptoms of Gastroesophageal reflux disease
(GERD)[,] that [Plaintiff] had no edema[,] and
[that] her recent urinary tract infection (UTI)
had resolved.
Joint Statement of Agreed Facts at 9.
On February 7, 2018, Plaintiff was seen by CCCF medical
services “complaining of anal area irritation and burning pain
with intermittent diarrhea since the ileostomy take-down
surgery.”

Joint Statement of Agreed Facts at 9.

Medical staff

noted Plaintiff had “redness and skin abrasion,” but she did not
have any vesicles or ulcerations.

Id.

Medical staff directed

Plaintiff to “avoid applying Hydrocortisone cream/ointment and
recommended a trial of Diflucan, an antifungal medication.”
10 - OPINION AND ORDER

Id.

Plaintiff returned to medical services on February 8, 2018, and
reported “the issue had resolved.”

Id.

On February 7, 2018, Plaintiff signed an Authorization to
Act form that authorized Multnomah County “to receive, [to] hold
and [to] provide her medications to her [when] she is released
from ODOC custody into county custody.”

Joint Statement of

Agreed Facts at 9.
On February 14, 2018, Plaintiff was released from the
custody of the Oregon Department of Corrections and was provided
with “a supply of medications from 2/14/18 to 3/15/18.”

Joint

Statement of Agreed Facts at 10.
On March 28, 2018, Plaintiff filed a Complaint in this Court
pursuant to 42 U.S.C. § 1983 against Dr. Steve Shelton,
Dr. Snider, Dr. Elizabeth Sazie, Dr. Reed Paulson, Nurse Mendoza,
Nurse Poloma, Dr. Peng, and John Does 1-10.

Plaintiff alleged

during her time as an inmate at CCCF Defendants (1) were
deliberately indifferent to Plaintiff’s serious medical needs in
violation of the Eighth Amendment to the United States
Constitution when they denied her appropriate medical care;
(2) violated her rights under the First Amendment when they
retaliated against her for “making First Amendment protected
statements”; and (3) violated the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131, and/or the Rehabilitation Act, 29
U.S.C. § 504, when they denied her appropriate medical care.
11 - OPINION AND ORDER

On January 21, 2020, Plaintiff filed an Amended Complaint
against Drs. Shelton, Snider, and Peng, and Nurse Mendoza.
Plaintiff alleges during her time as an inmate at CCCF,
Defendants (1) were deliberately indifferent to her serious
medical needs in violation of the Eighth Amendment when they
denied her appropriate medical care; (2) violated the First
Amendment when they retaliated against her for “making First
Amendment protected statements”; and (3) violated the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12131, and/or the
Rehabilitation Act, 29 U.S.C. § 504, when they denied her
appropriate medical care.
On February 28, 2020, Defendants filed a Motion for Summary
Judgment as to all of Plaintiff’s claims.
The Court took this matter under advisement on May 14, 2020.

STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
12 - OPINION AND ORDER

go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
13 - OPINION AND ORDER

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Defendants move for summary judgment on Plaintiff’s
claims on the grounds that (1) Plaintiff has failed to allege
personal involvement by Defendant Shelton, (2) Plaintiff has
not established Defendants violated either the ADA or the
Rehabilitation Act, (3) Plaintiff has not established Defendants
violated the Eighth Amendment, (4) Plaintiff has not established
Defendants violated her rights under the First Amendment, and
(5) Defendants are entitled to qualified immunity.
I.

Plaintiff’s Claims Against Dr. Shelton
Defendants move for summary judgment on Plaintiff’s claims

against Defendant Shelton on the ground that Plaintiff has failed
to establish that Dr. Shelton personally participated in the
conduct underlying Plaintiff’s claims.
The Ninth Circuit has made clear that “‘[l]iability under
§ 1983 must be based on the personal involvement of the
defendant.

There is no respondeat superior liability under

14 - OPINION AND ORDER

section 1983.’”

Shallowhorn, 572 F. App’x at 546 (quoting Taylor

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).

Plaintiff does

not allege any facts in her Amended Complaint that suggest
Dr. Shelton personally participated in the alleged deprivation of
Plaintiff's medical care.

In her Response to Defendants’ Motion

for Summary Judgment Plaintiff acknowledges Dr. Shelton
“occasionally” provided “direct, hands-on care” of inmates, but
“his primary mode of input was through the Therapeutic Level of
Care committee (TLC)[, which] . . . would determine when an ODOC
patient would be allowed to leave the facility, or seek outside
treatment.”

Pl.’s Resp. at 13.

Plaintiff asserts her “case was

brought to the TLC’s, and thus to Dr. Shelton’s attention.”

Id.

Plaintiff, however, does not allege or establish the TLC (or
Dr. Shelton in his capacity as a member of the TLC) failed to
provide Plaintiff with adequate medical care.

Plaintiff also

does not point to any decisions by the TLC that constituted
inadequate medical care.

Thus, even if membership on the TLC was

sufficient to confer liability, which is questionable, Plaintiff
has not pled or proven the TLC and, by extension, Dr. Shelton
failed to provide her with adequate medical care.
Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s claims against Dr. Shelton.
II.

Plaintiff’s Claim that Defendants Violated the ADA and/or
the Rehabilitation Act
Plaintiff asserts Defendants violated the ADA and/or the

15 - OPINION AND ORDER

Rehabilitation Act when they denied Plaintiff access to a medical
diet, which “could be construed as . . . deliberate indifference
to [Plaintiff’s] rights to participate in a program she would
have been qualified for.”

Pl.’s Resp. at 14.

Defendants move for summary judgment on Plaintiff’s
ADA/Rehabilitation claim on the ground that the Ninth Circuit
has held inadequate medical treatment or the lack of medical
treatment is not actionable under either the ADA or the
Rehabilitation Act.
A.

The Law
In Simmons v. Navajo County, Arizona the Ninth Circuit

held:

“[T]o the extent that [the plaintiffs] argue that [the

defendant] violated the ADA by depriving Jasper of ‘programs or
activit[ies] to lessen his depression,’ such argument is not
actionable under the ADA.

The ADA prohibits discrimination

because of disability, not inadequate treatment for disability.”
609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds
by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).
Courts in the Ninth Circuit also have specifically
concluded denial of a specific diet is not actionable under
the ADA or Rehabilitation Act.

See, e.g., Reyes v. Ryan,

No. CV092020 PHXSMMDKD, 2009 WL 10677722, at *2 (D. Ariz.
Nov. 24, 2009), aff'd, 424 F. App'x 659 (9th Cir. 2011)
(“Plaintiff claims he was denied a diabetic diet.
16 - OPINION AND ORDER

The ADA and

Rehabilitation Act afford disabled persons legal rights regarding
access to programs and activities enjoyed by all, but do not
provide them with a general federal cause of action for
challenging the medical treatment of their underlying
disabilities.”)(quotation omitted)).

As one court explained,

Defendant CCS argues that dismissal of the ADA and
Rehabilitation Act claims is warranted, because
neither statutory scheme has ever been applied to
give rise to a cause of action for inadequate or
denied medical treatment, especially in the
context of inmate care. Dkt. 90 at 15, citing to
inter alia, Bryant v. Madigan, 84 F.3d 246, 249
(7th Cir. 1996); Nails v. Laplante, 596 F. Supp.
2d 475, 481-82 (D. Conn. 2009); Fitzgerald v.
Corrections Corp. of Am., 403 F.3d 1134, 1144
(10th Cir. 2005); Carrion v. Wilkinson, 309 F.
Supp. 2d 1007, 1016 (N.D. Ohio 2004).
Plaintiffs cursorily push back, arguing that the
alleged disability discrimination for the ADA and
Rehabilitation claims “comes not from the failure
to provide medical treatment, but the failure
. . . to provide the reasonable accommodation of
allowing Plaintiff to move to a lower bunk for his
safety[.]” Dkt. 113 at 31.
Plaintiffs' argument is unpersuasive, because
legal authority discussing ADA and Rehabilitation
Act claims shows no such difference between
“medical treatment,” e.g., receiving Mirapex for
restless leg syndrome, and “allowing Plaintiff to
move to a lower bunk[.]” The failure to allow
Mr. Roosma to sleep on a bottom bunk can be
analogized to other unaddressed medical needs that
did not give rise to claims for disability
discrimination, such as a diabetic requesting a
special diet . . . or an inmate requiring outdoor
recreation to prevent depression. In such cases,
courts have observed the bedrock rule that the
statutory protections from disability
discrimination extend only to “prohibit[ ]
discrimination because of disability, not
inadequate treatment for disability.” Simmons,
17 - OPINION AND ORDER

609 F.3d at 1022 (emphasis added), citing to
Bryant, 84 F.3d at 248-249 (“[T]he [ADA] would not
be violated by a prison’s simply failing to attend
to the medical needs of its disabled
prisoners[.]”). Plaintiffs have presented no
basis to depart from this axiom.
Roosma v. Pierce Cty., No. 3:16-CV-05499-RJB, 2018 WL 784590,
at *6 (W.D. Wash. Feb. 8, 2018)(emphasis added).

See also Feleki

Martinez v. Cal. State Prison, Corcoran, No. 119CV00108DADBAMPC,
2019 WL 2544257, at *5 (E.D. Cal. June 20, 2019), report and
recommendation adopted sub nom. Martinez v. Cal. State Prison
Corcoran, No. 119CV00108DADBAMPC, 2019 WL 6683160 (E.D. Cal.
Dec. 6, 2019)(“[P]laintiff’s allegations of inadequate medical
care do not state a claim under the ADA.”).
B.

Analysis
Here Plaintiff, like the plaintiffs in Reyes, Roosma,

and Feleki, alleges inadequate treatment for her disability
rather than discrimination because of her disability.

The Court,

therefore, concludes Plaintiff’s claim is not actionable under
either the ADA or the Rehabilitation Act.
Accordingly, the Court grants Defendants’ Motion for
Summary Judgment as to Plaintiff’s claim for violation of the ADA
and/or the Rehabilitation Act.
III. Plaintiff’s Eighth Amendment Claim
Plaintiff contends Defendants were deliberately indifferent
to her serious medical needs in violation of the Eighth Amendment

18 - OPINION AND ORDER

when they did not consistently provide her with a low-residue
diet, did not provide her with sufficient medical treatment for
her ulcerative colitis, and delayed her surgery to have her colon
reconnected to her intestine.
A.

The Law
Deliberate indifference to serious medical needs is a

cognizable claim for violation of the Eighth Amendment
proscription against cruel and unusual punishment.
Gamble, 429 U.S. 97, 104 (1976).

Estelle v.

See also Colwell v. Bannister,

763 F.3d 1060, 1066 (9th Cir. 2014)(same).
To sustain [a] deliberate indifference claim, [a
plaintiff must] meet the following test: “First,
the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner's
condition could result in further significant
injury or the unnecessary and wanton infliction of
pain. Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent.”
Peralta v. Dillard, 704 F.3d 1124, 1127 (9th Cir. 2013)(quoting
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).

To satisfy

the second prong (i.e., that defendant's response to the need was
deliberately indifferent), a plaintiff must show there was
“‘(a) a purposeful act or failure to respond to a prisoner's pain
or possible medical need and (b) harm [was] caused by the
indifference.’”

Id. (quoting Jett, 439 F.3d at 1096).

Deliberate indifference may be established by showing that prison
officials denied, delayed, or intentionally interfered with
19 - OPINION AND ORDER

medical treatment or by the way prison officials provided medical
care.

Jett, 439 F.3d at 1096.
“Mere negligence in diagnosing or treating a medical

condition, without more, does not violate a prisoner's Eighth
Amendment rights."

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

Cir. 2004)(citation omitted).

See also Wilhelm v. Rotman, 680

F.3d 1113, 1122 (9th Cir. 2012)(“Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.”).

In addition, “a plaintiff's showing of nothing more

than a difference of medical opinion as to the need to pursue one
course of treatment over another [is] insufficient, as a matter
of law, to establish deliberate indifference.”

Wilhelm, 680 F.3d

at 1122 (quotation omitted).
B.

Analysis
1.

Low-Residue Diet
As noted, Plaintiff asserts Defendants denied her

adequate medical care when they did not consistently provide her
with a low-residue diet.

Defendants assert Plaintiff has not

established that a low-residue diet is medically necessary in the
treatment of ulcerative colitis.

According to Defendants,

therefore, Plaintiff has not established Defendants’ failure to
provide her with a low-residue diet was “a purposeful act or
failure to respond to a prisoner's pain or possible medical need
[or that] harm [was] caused by the indifference.”
20 - OPINION AND ORDER

Peralta, 704

F.3d at 1127.
Dr. Shelton testified in his deposition that he is
familiar with ulcerative colitis and the recommended medical
“interventions and strategies.”
at 7.

Decl. of Nathaniel Aggery, Ex. 2

Dr. Shelton testified medical literature did not recommend

any particular diet for ulcerative colitis, and a low-residue
diet is not a treatment for that condition.

Dr. Peng testified

at deposition that he believed Plaintiff had Crohn’s disease, but
there was not any particular diet that was medically indicated to
treat Crohn’s disease or ulcerative colitis.

Specifically,

Dr. Peng stated “sometimes a particular type of food can trigger
a flare, whether it be Crohn’s or ulcerative colitis in a
patient.

But it may not happen in another patient. . . .

[E]ach

person with a Crohn’s diagnosis will just have their own type of
diet that they need to follow.”

Chavez Decl., Ex. 8 at 22.

Dr. Snider also testified at deposition that there is not a
particular diet for individuals with Crohn’s disease and that
“every person [with Crohn’s disease] has a particular do-not-eat
list.”

Aggery Decl., Ex. 3 at 5.

Similarly, Todd Wilcox, M.D.,

Defendants’ medical expert, testified in his Declaration as
follows:
[Plaintiff] asserts [Defendants] failed to provide
her with an appropriate diet to manage her UC
[ulcerative colitis]. However, a “medical diet”
is not a part of the treatment course for UC.
Additionally, a “low residue diet” is not part of
the medical literature as treatment for UC and it
21 - OPINION AND ORDER

does not impact the course of the disease.
However, a low residue diet (one that limits fiber
intake) may be used to minimize the output of
colostomy and may mitigate some of the symptoms of
ulcerative colitis. [Defendants] approved a low
residue diet in April 2015. The medical chart
shows that [Plaintiff] was encouraged to consume a
low residue diet at various points in her
treatment. She was also cleared to return to a
“regular diet” at various points in her treatment.
On 3/31/17, [Plaintiff] requested a low residue
diet, but the request was denied because it was
not medically indicated. The medical evidence at
the time supported this conclusion.
Decl. of Todd Wilcox, M.D., at ¶ 14.
To support her assertion that a low-residue diet
was medically necessary to treat her ulcerative colitis Plaintiff
points out that she was put on a low-residue diet occasionally.
Plaintiff, however, did not provide any medical expert testimony
or medical evidence that contradicts Defendants’ evidence that a
low-residue diet was not medically necessary nor indicated for
treatment of ulcerative colitis.

At best, Plaintiff suggests

“nothing more than a difference of medical opinion as to the need
to pursue one course of treatment over another,” which is
“insufficient, as a matter of law, to establish deliberate
indifference.”

Wilhelm, 680 F.3d at 1122 (quotation omitted).
Viewing the evidence in the light most favorable

to Plaintiff, the Court concludes a reasonable juror could not
find on this record that Defendants were deliberately indifferent
to Plaintiff's serious medical needs when they did not
consistently provide her with a low-residue diet.
22 - OPINION AND ORDER

The Court,

therefore, grants Defendants’ Motion for Summary Judgment as to
that portion of Plaintiff’s Eighth Amendment claim based on
Defendants’ failure to provide her with a low-residue diet.
2.

Medical Care for Plaintiff’s Ulcerative Colitis
Plaintiff asserts Defendants denied her adequate

medical care when they did not provide her with sufficient
medical treatment for her ulcerative colitis.

Specifically,

Plaintiff asserts in her Response that she did not receive
“direct treatment for her ulcerative colitis condition in the
months leading directly to her April 10, 2016, episode.”
Resp. at 11.

Pl.’s

Plaintiff notes Drs. Shelton and Peng testified

ulcerative colitis or Crohn’s disease “can be treated with antiinflammatory medications, steroids, biologics,” topical
medications, mesalamine or acetylsalicylic acid-based treatment.
Aggrey Decl., Ex. 2 at 2; Chavez Decl., Ex. 8 at 22.

Plaintiff

asserts Defendants did not provide her with any of these
treatments.
As noted, the record reflects on February 9, 2015,
Plaintiff underwent a colonoscopy and upper endoscopy to further
evaluate her “gastrointestinal bleed, iron anemia, and an upper
GI bleed.”

Joint Statement of Agreed Facts at 3.

The

colonoscopy and upper endoscopy reflected proctitis, left-sided
colitis, and “mild gastritis.”

Chavez Decl., Ex. 1 at 1.

A

March 17, 2015, chart note reflects a biopsy of Plaintiff’s colon
23 - OPINION AND ORDER

showed ulcerative colitis, a biopsy of her small intestine and
stomach was benign and did not reflect celiac disease, and a
“polyps biopsy” was negative for Pylori.
at 2.

Chavez Decl., Ex. 1

On March 20, 2015, Plaintiff requested a “low residue

diet” or a gluten-free diet and information on Crohn’s disease.
Id.

On April 17, 2015, Plaintiff “was approved a low residue

diet for one year.”

Joint Statement of Agreed Facts at 4.

On

December 29, 2015, Plaintiff requested Ensure “due to [her]
history of Crohn’s disease” and her weight loss.

Nurse Mendoza

noted “no significant findings” on examination of Plaintiff and
advised Plaintiff that Ensure “isn’t medically necessary.”
Chavez Decl., Ex. 4 at 1.

Plaintiff was seen by medical staff at

CCCF approximately 12 times between December 29, 2015, and
April 10, 2016, for issues related to her various conditions and
was prescribed various medications for treatment/pain relief.

In

fact, on April 8, 2016, Plaintiff requested “more klonapin and
oxy for this flare.”

Chavez Decl., Ex. 2 at 4.

In addition,

Plaintiff was seen numerous times after her April 10, 2016,
episode by various doctors and other medical staff at CCCF and at
Legacy Meridian Park Hospital for treatment related to her
ulcerative colitis or Crohn’s disease.

Plaintiff was prescribed

several medications and underwent many tests, procedures, and
surgeries.

Plaintiff’s condition is a long-term genetic disease

that changes over time.
24 - OPINION AND ORDER

The record reflects Defendants employed

various treatment modalities in an effort to treat Plaintiff’s
condition over the five years that Plaintiff was incarcerated at
CCCF.
Viewing the evidence in the light most favorable
to Plaintiff, the Court concludes a reasonable juror could not
find on this record that Defendants failed to provide Plaintiff
with adequate medical treatment for her ulcerative colitis.
3.

Surgical Delay
Plaintiff also alleges Defendants were

deliberately indifferent to her serious medical needs when they
delayed her surgery to have her colon reconnected to her
intestine.

Specifically, Plaintiff alleges in her Amended

Complaint that she was scheduled for surgery to have her colon
reattached to her intestine in January 2017, but her surgery was
delayed “because Defendants kept her on blood thinners” despite
knowing about her upcoming surgery.

Plaintiff testified at

deposition that at some point an unidentified doctor told an
unidentified medical professional at CCCF to stop giving
Plaintiff blood thinners because “we had to cancel the surgery
. . . because [Plaintiff] wasn’t going to bleed out on my table
and die again.”

Chavez Decl., Ex. 8 at 8.

The portion of her

deposition on which Plaintiff relies, however, does not identify
either the doctor who allegedly made the statement or the doctor
to whom the statement was directed, the surgery referenced, or
25 - OPINION AND ORDER

when the conversation occurred.

In addition, the medical record

submitted to the Court does not contain any reference to surgery
scheduled for Plaintiff in January 2017, Plaintiff going to
surgery but returning without undergoing the surgery due to being
on blood thinners, or any information about a medical
professional being directed to stop blood thinners.
Dr. Peng testified at deposition that a document
identified as “Price-meds-2403” noted Plaintiff’s “surgery to be
rescheduled,” but he could not remember which surgery was
referenced.

Aggrey Dep., Ex. 4 at 5.

Dr. Peng noted the same

document indicated “prior to surgery the [blood thinner] should
be stopped.”

Id.

Dr. Peng recalled Plaintiff was on blood

thinners because
she had a blood clot in her leg, one of the
surgeries she had, it may have been in the one
April 2017. And then she had a filter placed in
her inferior vena cava to prevent the blood clot
from traveling to her lung. So she's on Coumadin
to prevent the clot around -- forming around the
filter. That's one of the complications, can be
one of the complications of the filter. And she's
also on Coumadin because of the clot itself.
Id.
On this record the Court concludes Plaintiff has,
at best, shown nothing more than “mere negligence in . . .
treating a medical condition, which, “without more, does not
violate a prisoner's Eighth Amendment rights.”
at 1057.

Toguchi, 391 F.3d

See also Wilhelm, 680 F.3d at 1122 (“Medical

26 - OPINION AND ORDER

malpractice does not become a constitutional violation merely
because the victim is a prisoner.”).

In addition, “a plaintiff's

showing of nothing more than a difference of medical opinion as
to the need to pursue one course of treatment over another [is]
insufficient, as a matter of law, to establish deliberate
indifference.”

Wilhelm, 680 F.3d at 1122 (quotation omitted).

Accordingly, the Court grants Defendants’ Motion for
Summary Judgment as to Plaintiff’s Eighth Amendment claim for
Defendants’ alleged failure to provide her with adequate medical
care.
IV.

Plaintiff’s First Amendment Claim
Plaintiff alleges in her Amended Complaint that Defendants

violated her rights under the First Amendment when Dr. Snider
removed medications from Plaintiff’s cell and removed her work
restrictions after Plaintiff “engaged in constitutionallyprotected speech when she sought redress for her medical issues
from doctors outside of” CCCF.

Am. Compl. at ¶ 39.

The Ninth Circuit has held
[w]ithin the prison context, a viable claim of
First Amendment retaliation entails five basic
elements: (1) An assertion that a state actor
took some adverse action against an inmate
(2) because of (3) that prisoner's protected
conduct, and that such action (4) chilled the
inmate's exercise of his First Amendment rights,
and (5) the action did not reasonably advance a
legitimate correctional goal.
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004)
27 - OPINION AND ORDER

(citations omitted).
A.

Removal of Medication from Plaintiff’s Cell
In her Response to Defendants’ Motion for Summary

Judgment Plaintiff asserts she “suffered a catastrophic
ulcerative colitis flare on April 10, 2016.

Upon her return

[from Legacy Meridian Park Hospital], Dr. Snider confiscated
‘contraband’ he found in her locker, and removed her medical
restriction from working while in custody on or about April 22,
2016.”

Pl.’s Resp. at 2.
Dr. Snider testified at deposition that it was

“unusual” for him to do contraband review, but on April 11, 2016,
the day Plaintiff returned from Legacy Meridian Park Hospital,
nurses brought Dr. Snider “a whole cart, if not two carts of
medicine in big bags” from Plaintiff’s cell for his review.
Aggrey Decl., Ex. 3 at 7.

Dr. Snider “counted the days of supply

that [Plaintiff] had on her medications [in her cell] and for the
most part they were all over a month's supply other than the
isosorbide, which she had a 26-day supply of.”

Id. at 6.

An

April 11, 2016, Provider Summary Discharge Note listed the
following medications and amounts of medication found in
Plaintiff’s cell:

a 64-day supply of Sucralfate, a 48-day supply

of Zocor, a 48-day supply of Mobic, a 51-day supply of Aspirin, a
50-day supply of iron, a 41-day supply of Synthroid, five tubes
of lidocaine jelly, six boxes of enemas, two bottles of nitro,
28 - OPINION AND ORDER

and two Symbicort inhalers, which would last plaintiff longer
than 30 days.
at 1.

Aggrey Decl., Ex. 3 at 7; Chavez Decl., Ex. 2

Dr. Snider testified at deposition that on April 11, 2016,

he believed inmates were not allowed to have more than 30 days of
medical supplies in their possession, and, therefore, the excess
medications were contraband.

Plaintiff, however, continued to

have access to medications through medical services, and the
record reflects she was issued certain medications to keep in her
cell at some point between April 11, 2016, and April 19, 2016.
Plaintiff asserts she has established a question of
material fact as to Dr. Snider’s alleged retaliation against
Plaintiff due to the fact that she “advocated for herself.”

She

states she was told by CCCF staff to “‘stay on the low’ regarding
her medical needs because if she did not, Dr. Snider would take
away the only pain relief medication she was taking.”
at ¶ 18.

Am. Compl.

Plaintiff, however, does not point to any evidence that

indicates she was permitted to keep more than 30 days of medical
supplies in her cell generally or that she was permitted to keep
all of the medications found in her cell specifically.
As noted, in response to a properly supported motion
for summary judgment, the nonmoving party must go beyond the
pleadings and show there is a genuine dispute as to a material
fact for trial.
light one . . . .

Rivera, 395 F.3d at 1146.

"This burden is not a

The non-moving party must do more than show

29 - OPINION AND ORDER

there is some 'metaphysical doubt' as to the material facts at
issue."

In re Oracle Corp. Sec. Litig., 627 F.3d at 387.
The Court concludes on this record that Plaintiff has

not established there is a genuine dispute of material fact as to
whether Dr. Snider removed Plaintiff’s medications from her cell
in retaliation for Plaintiff “advocat[ing] for herself against”
Dr. Snider and/or because she went to Legacy Meridian Park
Hospital for treatment.
B.

Work Duty
Plaintiff asserts Dr. Snider placed her on work duty in

the kitchen “immediately following her [April 10, 2016,] medical
episode” in retaliation for her seeking medical care at Legacy
Meridian Park Hospital.

Dr. Snider testified at deposition that

he does not recall revoking Plaintiff’s medical waiver for work,
he does not know whether the Oregon Department of Corrections has
a policy that requires inmates to work, and he does not know
where “it would be noted [that Plaintiff] had to go and work
anywhere.”

Aggrey Decl., Ex. 3 at 8.

The record reflects

Plaintiff reported to medical staff on April 22, 2016, that she
needed a work waiver because “they put me in the kitchen!
can’t work!”

Chavez Decl., Ex. 6 at 1.

I

On April 25, 2016,

Plaintiff told medical staff that she could not work in the
kitchen, but she could do “other work in laundry.”

Id. at 2.

The record reflects Plaintiff was given a work waiver by medical
30 - OPINION AND ORDER

staff and did not work in the kitchen.
There is not any evidence in the record that Dr. Snider
or any other Defendant revoked Plaintiff’s work waiver or placed
her on work duty in the kitchen nor is there any evidence that
Defendants did so in retaliation for Plaintiff “advocat[ing] for
herself against” Dr. Snider and/or undergoing medical care at
Legacy Meridian Park Hospital.
The Court concludes on this record that Plaintiff has
not established there is a genuine dispute of material fact as to
whether Dr. Snider revoked her work waiver or caused her to be
assigned to work in the kitchen because Plaintiff “advocated for
herself against” Dr. Snider and/or went to Legacy Meridian Park
Hospital for treatment.
Accordingly, the Court grants Defendants’ Motion for
Summary Judgment as to Plaintiff’s First Amendment Claim.
V.

Qualified Immunity
As noted, Defendants contend they are also entitled to

qualified immunity as to all of Plaintiff’s claims.

The Court,

however, already has concluded Defendants did not violate
Plaintiff’s constitutional rights.

The Court, therefore, does

not address Defendants’ qualified immunity argument.

CONCLUSION
For these reasons, the Court GRANTS
31 - OPINION AND ORDER

Defendants’ Motion

(#44) for Summary Judgment and DISMISSES this matter with
prejudice.
IT IS SO ORDERED.
DATED this 15th day of June, 2020.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

32 - OPINION AND ORDER