Swanson v. Coos County et al

Filing 39

ORDER: Defendants' Motions for Summary Judgment 15 and 22 are granted and this case is dismissed. Signed on December 21, 2009 by Chief Judge Ann L. Aiken. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KJILLY LEE SWANSON,

Civ. No. 08-6312-AA OPINION AND ORDER

Plaintiff,

COOS COUNTY; SHERIFF ANDREW JACKSON; COQUILLE VALLEY HOSPITAL; SHIRAZ FAROOQ, M.D.; and DOES 1-50, inclusive,
Defendants.

Steven M. McCarthy Churchill Leonard Lawyers PO Box 804 Salem, OR 97308 Attorney for plaintiff
Gerald L. Warren 901 Capitol St. NE Salem, OR 97301 Attorney for defendants Coos County and Sheriff Jackson Scott G. O7Donnell Kevin M. Glynn Keating Jones Hughes PC One SW Columbia, Suite 800 Portland, OR 97258-2095 Attorneys for defendants Coquille Valley Hospital and Shiraz Farooq, M.D.
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- OPINION AND ORDER

AIKEN, Chief Judge:

Plaintiff Kelly Lee Swanson filed suit against defendants Coos County, Sheriff Andrew Jackson, Coquille Valley Hospital, Shiraz Farooq, M.D., and Does 1-50, asserting violations of his right against cruel and unusual punishment under the Eighth Amendment, Due Process violations, First Amendment retaliation, and professional negligence.' Plaintiff's claims arise from an

incident that occurred when plaintiff became ill while he was a pretrial detainee in the Coos County Jail. defendants Coos County and Sheriff Plaintiff alleges

Jackson

("the County

defendants") acted with deliberate indifference to his medical needs in violation of the Eighth Amendment and retaliated against him after he complained of illness, in violation of his First Amendment rights. Plaintiff also alleges that defendants

Coquille Valley Hospital ("the Hospitalu) and Dr. Farooq were negligent in the medical care they provided once he was

transported to the Hospital, and that the surgeries conducted on plaintiff fell below the applicable standard of care.
All defendants now move for summary judgment.

Plaintiff does not identify which claim attaches to each defendant. However, plaintiff does not allege facts to support any constitutional violations by the Hospital or Dr. Farooq, or any facts to support professional negligence by the County. I therefore analyze claims one through five as they apply to the County defendants, and claims six and seven with regard to the Hospital and Dr. Farooq.
2

'

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OPINION AND ORDER

BACKGROUND

On April 19, 2007, plaintiff was booked and held in the Coos County Jail (I1jail1l) a pretrial detainee. as
3:27

At approximately

a.m. on April

25,

2007,

plaintiff complained to Sgt.

Deschenes of abdominal pain, vomiting, and hot and cold flashes. Deschenes did not observe evidence of vomiting, but he took plaintiff's pulse and blood pressure. neither reading indicated According to Deschenes, situation the

plaintiff's contacted

was

life-

threatening.

Deschenes then

jail s Medical

Director, Dr. William Davis.

Davis advised Deschenes to "keep

and eye onn plaintiff

in case the situation worsened, but

otherwise plaintiff should wait to see the jail nurse later that morning. At 4:25 a.m., plaintiff complained of increasing pain in his abdomen. Deschenes attempted to take plaintiff's blood pressure Deschenes then called was having plaintiff

again but was unable to obtain a reading.
Dr.

Davis

and

informed him

that

he

transported to a hospital. Just before 5:00
a.m.,

Corrections Officer Cory Detzler

transported plaintiff to the Hospital, located just a few blocks
from

the

jail.

Plaintiff

arrived

at

the

Hospital

at

approximately 5:00 a.m. hospital staff.
3

By 5:10 a.m., he had been assessed by
By 6:50 a.m., hospital

Warren Decl., Ex. 2.

- OPINION AND ORDER

staff

had

explained

plaintiff's

preliminary

diagnosis

and

plaintiff signed a consent form for abdominal surgery.
DecL., Ex. 3.

Glynn

Plaintiff went into surgery with Dr. Farooq at

8:20 a.m. and was out by 9:15 a.m., after the successful removal

of plaintiff's appendix. Glynn Decl., Ex. 4, p. 1.
On April 26, 2007, Dr. Farooq examined plaintiff and became

concerned that plaintiff may have internal bleeding.

Plaintiff

was returned to surgery to repair a severed artery in his lower-

left abdomen.
and was

Plaintiff fully recovered from the second surgery from the Hospital on April
28, 2007.

discharged

Plaintiff was not required to return to the jail after discharge. About one year later, on April 30, 2008, received plaintiff's formal tort claim notice. On October 9, 2008, plaintiff filed this complaint.
SUMMARY JUDGMENT STANDARD
the Hospital

Summary judgment is appropriate

if the pleadings, the

discovery and disclosure materials on file, and any affidavits
show that there is

no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). The materiality of a fact is determined
T.W. Elec. Serv., Inc. v.

by the substantive law on the issue.

Pac. Elec. Contractors Assrn, 809 F . 2 d 626, 630 (9th Cir. 1987).

The authenticity of a dispute is determined by whether the
4

- OPINION AND ORDER

evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobbv, Inc., 477 The moving party has the burden of

U.S. 242, 248

(1986).

establishing the absence of a genuine issue of material fact. Celotex Corn.
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.

I .at 324. d

Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and
(2) all inferences to be drawn from the

underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
However, the

Ninth Circuit has refused to find a genuine issue of fact where the only evidence presented is testimony. Cir. 1996) .
DISCUSSION

uncorroborated and self-serving"

Kennedv v. A~alause, Inc., 90 F.3d 1477, 1481 (9th

A.

Federal Due Process and Eishth Amendment Claims

In his Second and Fourth claims, plaintiff alleges he was
subjected to cruel and unusual punishment in violation of the Eight Amendment and the Due Process Clauses of the Fifth and
5

-

OPINION AND ORDER

Fourteenth Amendments.

Because plaintiff was a pretrial detainee

and had not been convicted of a crime at the time of his

detention, his rights derive from due process as opposed to the Eighth Amendment's protection against cruel and unusual

punishment.

Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct.

1861, 1872 (1979); Frost v. Asnos, 152 F . 3 d 1124, 1128 (9th Cir. 1998). Nonetheless, the protection of pretrial detainees from

llpunishmentw under the Due Process clause also protects them from I1crueland unusual punishment." Bers v. Kincheloe, 794 F.2d 457,
459

(9th Cir. 1986).

Therefore, any formal distinction is "With regard to

irrelevant for the purposes of this analysis.

medical needs, the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes [ .I Gibson v. Countv of

Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002). Plaintiff argues that the County defendants acted with deliberate indifference to his serious medical needs and

subjected him to cruel and unusual punishment by failing to provide treatment in a timely manner.

In order to prevail on an Eighth Amendment claim that
medical treatment was denied or inadequately rendered, plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to [his] serious medical needs."
v. Gamble, 429 U.S. 97, 106 (1976).
6

Estell

However, "an inadvertent

- OPINION AND ORDER

failure to provide adequate medical care" does not allege a violation of the Eighth Amendment.

I . at 105; see also Wood v. d

Housewrisht, 900 F.2d 1332, 1334 (9th Cir. 1990) (negligence, or even gross negligence, is insufficient to state a claim under the Eighth Amendment).
Rather, deliberate indifference requires a

showing that the official "knows of and disregards an excessive risk to inmate health and safety."
Farmer v. Brennan, 511 U.S.

825, 837 (1994) see also LeMarie v. Maase, 12 F.3d 1444, 1451 ;

(9th Cir. 1993) (violation of the Eighth Amendment requires showing of culpable state of mind beyond mere negligence). Prison officials act with deliberate indifference to a prisoner's serious medical
needs

if

they

delay,

deny, or

intentionally interfere with the prisoner's medical treatment. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992),

overruled on other srounds bv wMx Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Hutchinson v. United States, 838
F.2d
390,
394

(9th Cir.

1988).

To

find

deliberate

indifference, ' [a] defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical
need."

McGuckin, 974 F.2d at 1060. In this case, plaintiff claims that the County defendants failed to provide him with timely medical attention for his abdominal distress.
7

In support of his claim, plaintiff argues

- OPINION AND

ORDER

that the County defendants failed to enforce their own policies with regard to the First Aid training required of all corrections officers, and that this failure amounts to deliberate

indifference.

The County's policy requires all corrections

officers to be trained in basic First Aid within three years. Decl . of Plaintiff s Counsel, Ex. 2. Plaintiff highlights Sgt .

Delphine Green's first aid training record, which indicates she received such training in 1999. does not establish because, not on deliberate
as

I . at Ex. d

1.

However, this by the Green County !'was

indifference admits,
the

defendants apparently

plaintiff job at

Sgt. in

the

times

question[.]

Plaintiff I Memo. in Opp., p. 6. s

Rather, Sgt. Deschenes was on

duty and responded to plaintiff's complaints. Plaintiff also argues that the delay in treatment of his medical condition constituted deliberate indifference. Plaintiff first complained of feeling ill around 3 : 2 7 a.m., at which point
Sgt. Deschenes immediately took plaintiff's pulse

and blood

pressure, and called the jail Medical Director for advice. Deschenes Decl.,

7

3-4.

Plaintiff was thereafter watched closely

for signs of greater illness. I , at d
At
4:25

7

5.

a.m., when Deschenes determined the

situation

required greater medical attention, plaintiff was immediately transported to the hospital.
8

I . at d

6.

Within 50 minutes,

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OPINION AND ORDER

plaintiff was in the hospital and had been assessed by hospital staff. It took approximately 90 minutes from the initial

complaint until plaintiff was transported to the hospital, and less than six hours passed before surgery was completed. No

reasonable trier of fact could find that the County defendants acted with deliberate indifference to plaintiff's medical needs upon these facts.2 Further, a I f m e r e delay of surgeryH does not support a claim of deliberate indifference Ifunless the denial was harmful." Shaulev v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407

(9th Cir. 1985).

Plaintiff presents no evidence that he was

harmed by the delay or that Sgt. Deschenes or any jail official
purposely acted or failed to act in a way that caused harm to plaintiff. See McGuckin, 974 F.2d at 1060.

Even accepting all inferences in plaintiff's favor, the
record falls far short of supporting his claim that the County defendants acted with deliberate indifference to his serious

2~laintiff alleges he first complained of vomiting and abdominal pain at approximately midnight, rather than 3 : 2 7 a.m., and that he arrived at the hospital "at least six hours later." Plaintiff does not support his allegations with documentary evidence or otherwise provide a factual basis to explain his time estimate. Regardless, I find that the time difference does not change my analysis. Acceptance of plaintiff's six-hour time lapse does not establish deliberate indifference given defendants1 actions.
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- OPINION AND ORDER

medical needs.

Plaintiff's second and fourth claims therefore

fail on summary j~dgrnent.~ B. First Amendment Retaliation Claim Plaintiff also alleges that the County defendants denied him appropriate medical care in retaliation for complaining that he

was ill.
Within the context of a jail or prison, a viable First Amendment claim must include: (1) an assertion that a state actor took some adverse action against the plaintiff because of

plaintiff's protected speech; (2) that such adverse action had a chilling effect on plaintiff's exercise of his First Amendment Rights; and (3) that "the action did not reasonably advance a
559, legitimate correctional goal." Rhodes v. Robinson, 408 ~ . 3 d
567-68 (9th Cir. 2005).

Plaintiff fails to present any evidence that would lead a reasonable trier of fact to conclude that prison officials interfered with plaintiff's right

fxee speech

retaliated

against him for the exercise of that right.

Plaintiff argues

only that Sgt . Delphine Green, who was not present the night

'plaintiff also cites 42 U.S.C. 5 1985 in his complaint, but fails to provide any factual allegations or legal arguments in support of a conspiracy claim. Plaintiff has therefore failed to present evidence such that a reasonable trier of fact could find that a conspiracy existed, and any B 1985 claim fails to survive summary judgment .
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- OPINION AND ORDER

plaintiffTs abdominal pain, has ''no personal knowledge of any details of the events of Plaintiff's distress,'' and that "Sgt. Deschenes exhibits in his declaration an explicit contempt for prisoners as manipulative.I1 Plaintiff's Memo. in Opp., p. 6.

Even taking these allegations as true, plaintiff presents no evidence to support the existence of a retaliatory motive from the County defendant^.^ Plaintiff also produces no evidence that

his exercise of free speech was in any way "chilled," or that Deschenesf conduct did correctional goal.
not

reasonably advance a

legitimate

Plaintiff's First Amendment claim therefore

fails to survive summary judgment.
C.

State Law Claims Plaintiff's remaining claims allege violations under the

Oregon Constitution and negligence under state law.

I exercise

my discretion to accept supplemental jurisdiction over these
claims.
28 U.S.C.
§

1367.

A district court has discretion to retain jurisdiction even

if only state-law claims remain after resolution of the federal
question. Osborn v. Halev, 549 U.S. 225, 245 (2007); see also

Carneqie-Melon Univ. v . Cohill, 484 U.S. 343, 350-51 (1988) (when federal character of removed case is eliminated while the case is
4

To the extent plaintiff intends this claim to apply to the hospital and Dr. Farooq, he fails to present any evidence that those defendants engaged in any retaliatory conduct as a result of plaintiff's protected speech.
11
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OPINION AND ORDER

sub j u d i c e ,

court has discretion to retain jurisdiction, to

remand, or to dismiss); Mine Workers v. Gibbs, 3 8 3 U . S . 715, 725
(1966) (pendent jurisdiction may be exercised when federal and

state claims have a wcornmon nucleus of operative factn and would I1ordinarily be proceedingu) expected to

[be tried]

all

in one judicial

.

Thus, considerations of judicial economy make it

reasonable and proper to retain jurisdiction in this case where plaintiff's state-law claims arise out of the same incident. See Gibbs, 3 8 3 U.S. at 7 2 6 .
1.

State Constitutional Claim

Plaintiff' s third claim alleges a due process violation under Article I, section 10 of the Oregon Constitution, and cruel

and unusual punishment as prohibited by Article I, sections 13
and 16 of the Oregon Constitution. that defendants The basis of these claims is

failure to provide for timely and adequate

medical care constituted a wanton infliction of pain without penological purpose, constituting deliberate indifference to Estelle v. Gamble, 429 U.S.

plaintiff's serious medical needs.
9 7 , 104-05 (1976)

.
Amendment's Ideliberate indifference to

"[Tlhe

Eighth

serious medical needst standard is the appropriate standard under Article I, section 16." Billinqs v. Gates, 3 2 3 Or. 167, 1 8 0 , 916 P.2d 291 (1996).
12
-

I1Article I, section 16, closely parallels the

OPINION AND ORDER

Eighth Amendment. l1

T . at 173. As with the Eighth Amendment, d

"the phrase 'cruel and unusual punishments'

...

connotes a

conscious choice on the part of prison officials to inflict punishment on an inmate."

I .at d

176.

Because I find that defendants did not act with "deliberate indifference" to plaintiff's serious medical need, plaintiff's state constitutional claims fail based on the same reasoning as his federal claims.
2.

Neslisence Claims

Plaintiffls remaining claims allege professional negligence

by Dr. Farooq and negligent hiring and
Hospital.

supervision by the

Plaintiff's claim for professional negligence is actually a medical malpractice claim. To succeed on such a claim, plaintiff

must show 11(1) a duty that runs from the defendant to the
plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and
(4) causation, i.e., a

causal link between the breach of duty and the harm." Stevens v. Bisuham, 316 Or. 221, 227 851 P.2d 556 (1993) (emphasis omitted). "In a medical malpractice action, a defendant doctor may offer

his own medical expert opinion in an affidavit as evidence to
support a summary judgment motion on the issue of the applicable standard of care." O'Gara v . Ptacek, 96 Or.App. 39, 43, 771 P.2d
13

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AND ORDER

642 (1989) (citing Tiedemann v. Radiation Theram Consultants,
299 Or. 238, 701 P.2d 440 (1985)).

Dr.

Farooq

submitted

expert 'testimony that

the

care

plaintiff received did not fall below the accepted standard of

care in the medical community.

Farooq. Decl.,

7

8.

Plaintiff

did not respond with any evidence or expert testimony to rebut
Dr. Farooq's assertion.

Consequently, the Hospital's evidence is Plaintiff has

uncontested, leaving no material fact for trial.

therefore failed to meet his burden to survive summary judgment as a matter of law. Celotex Cowp., 477 U.S. at 324 (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). Plaintiff's seventh Hospital and and final claim alleges that the and

the County were negligent

in the hiring

supervision of Dr. Farooq.

Once again, plaintiff fails to

present any evidence supporting his claim.

The County defendants argue that they did not hire Dr.
Farooq or have any supervisory authority over him.

They also

argue that they had no knowledge or reason to know that Dr. Farooq would engage in negligent conduct. dispute this. Plaintiff does not

14

- OPINION AND

ORDER

Plaintiff also fails to present opposing evidence to the Hospitalls argument that it was not negligent in hiring or supervising Dr. Farooq. Consequently, plaintif£ has not met his

burden to show an issue of material fact for trial, and summary
judgment is appropriate.

See Fed. R. Civ. P. 5 6 ( e ) ( 2 )

("If the

opposing party does not so respond, summary judgment should, if

appropriate, be entered against that party."). CONCLUSION For the reasons set forth above, defendants1 Motions for Summary Judgment (docs. 15 and 22) are GRANTED, and this case is
DISMISSED.

IT IS SO ORJIERED.

Dated this

6day of 7 -

December, 2009.

Ann Aiken Chief United States District Judge

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- OPINION AND

ORDER