Harbert v. Patton

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PENDLETON DIVISION

NATHANIEL F. HARBERT,

Plaintiff,

Case No. 2:17-cv-01931-YY

v.

OPINION AND ORDER

DR. MARK PATTON; DR. NORTON; DR.

SHELTON; DR. DIGIULIO; DR. L.

GRUENWALD; DR. KELLY; DR. BEAMER; DR.

DEWSNUP; R. NUTT; D. LOZIER; MS. ORTIZ;

MS. PARKS; MS. HARDY; and MS. PRUITT,

Defendant.

YOU, Magistrate Judge:

Pro se plaintiff Nathaniel F. Harbert is a prisoner incarcerated at Two Rivers Correctional

Institution (“TRCI”) in Umatilla, Oregon. Plaintiff was diagnosed with a small left inguinal

hernia1 in September 2016, and has filed numerous grievances, appeals, communication forms,

and requests relating to his medical care. Defendants include plaintiff’s treating doctor at TRCI,

Dr. Patton, and thirteen other individuals, including seven doctors (Dr. Norton, Dr. Shelton, Dr.

1 “Inguinal hernias occur where the abdomen meets the thigh in the groin region and are

protrusions of soft tissue, such as subcutaneous fat or a portion of the intestine, through a weak

spot in the ileo-inguinal ligament or abdominal muscles.” Declaration of Mark Patton (“Patton

Decl.”) ¶ 10, ECF #54 (emphasis omitted).

DiGiulio, Dr. L. Gruenwald, Dr. Kelly, Dr. Beamer, and Dr. Dewsnup), a pharmacist (R. Nutt),

and five nurses (D. Lozier, Ms. Ortiz, Ms. Parks, Ms. Hardy, and Ms. Pruitt).

Plaintiff alleges three claims: (1) an Eighth Amendment deliberate indifference claim

pursuant to 42 U.S.C. § 1983 against Dr. Patton for denying him hernia repair surgery (Amended

Compl. 4, ECF #4); (2) a negligence or medical malpractice claim against Dr. Patton and

members of the Therapeutic Level of Care (“TLC”) Committee regarding treatment of his hernia

(id. at 4-6); and (3) an Eighth Amendment deliberate indifference claim against Ortiz, Parks,

Hardy, Pruitt, and Dr. Gruenwald for failing to provide appropriate treatment for his symptoms

(id. at 6-7).

Defendants have moved for summary judgment. ECF #52. For the reasons discussed

below, defendants’ motion is granted.

STANDARDS

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.” FRCP

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). “When judging the evidence

at the summary judgment stage, the district court is not to make credibility determinations or

weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the

nonmoving party.” Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.”). 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 the plaintiff’s position [is] insufficient

. . . .” Id. at 252, 255. “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).

Pro se pleadings are “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106

(1976). “This rule protects the rights of pro se litigants to self-representation and meaningful

access to the courts, . . . [and] is particularly important in civil rights cases.” Pouncil v. Tilton,

704 F.3d 568, 574-75 (9th Cir. 2012) (emphasis omitted) (citations and quotation marks

omitted).

DISCUSSION

I. Plaintiff’s Medical Conditions

Plaintiff was admitted to the custody of the Oregon Department of Corrections

(“ODOC”) on October 6, 2009, is housed at TRCI, and is incarcerated until at least September 3,

2022. Declaration of Linda Simon (“Simon Decl.”) ¶ 3, ECF #53. Along with the left inguinal

hernia, plaintiff has been diagnosed with “chronic gastroesophageal reflux disease (“GERD”),2

chronic low back pain, chronic irritable bowel syndrome (“IBS”),3 and asthma.” Declaration of

Mark Patton (“Patton Decl.”) ¶ 7, ECF #54. Plaintiff also has been evaluated for pain in his left

hip and in his knees. Id. ¶¶ 33-35.

2 GERD is “a digestive disorder that affects the lower esophageal sphincter (ring of muscle

between the esophagus and stomach) causing acid reflux. The symptoms can include burning

chest pain or heartburn.” Patton Decl. ¶ 36, ECF #54.

3 IBS “is a common disorder that affects the large intestine. Symptoms include cramping,

abdominal pain, bloating, gas, diarrhea, or constipation or both. This is a chronic condition with

unknown origin that is not a serious condition and requires long term management of

symptoms.” Patton Decl. ¶ 37, ECF #54.

II. Exhaustion

Defendants argue that plaintiff failed to fully exhaust his administrative remedies because

he did not appeal any of his grievances to the final level and he is therefore barred from pursuing

his claims under the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a).

Plaintiff claims that he fully appealed at least one of his grievances. This court agrees that one of

plaintiff’s grievances, TRCI-2017-06-144, is exhausted.

A. Legal Standard

The PLRA provides that “[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). Congress enacted the PLRA “in the wake of a sharp rise in

prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA

strengthened the exhaustion requirement so that “[e]xhaustion is no longer left to the discretion

of the district court, but is mandatory.” Id. at 85 (citation omitted). “Prisoners must now exhaust

all ‘available’ remedies . . . even where the relief sought—monetary damages—cannot be

granted by the administrative process.” Id. The exhaustion requirement “applies to all inmate

suits about prison life” that do not involve the duration of a prisoner’s sentence. See Nettles v.

Grounds, 830 F.3d 922, 932 (2016) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)).

The PLRA’s exhaustion requirement mandates proper exhaustion of administrative

remedies. Woodford, 548 U.S. at 93. Proper exhaustion means that “a prisoner must complete

the administrative review process in accordance with the applicable procedural rules, including

deadlines, as a precondition to bringing suit in federal court.” Id. at 88.

In Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015), the Ninth Circuit articulated the

test for determining whether a prisoner exhausted administrative remedies, and if not, what

justification excuses the failure to exhaust. First, a defendant must “prove that there was an

available administrative remedy and that the prisoner did not exhaust that available remedy.” Id.

at 1191 (citation omitted). “Then, the burden shifts to the plaintiff, who must prove that there is

something particular in his case that made the existing and generally available administrative

remedies effectively unavailable to him by ‘showing that the local remedies were ineffective,

unobtainable, unduly prolonged, inadequate, or obviously futile.’” Id. (citation omitted). “The

ultimate burden of proof, however, remains with the defendants.” Id.; Jones v. Bock, 549 U.S.

199, 216 (2007).

Exhaustion of administrative remedies is an affirmative defense properly raised by a

motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “If

undisputed evidence viewed in the light most favorable to the prisoner shows a failure to

exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are

disputed, summary judgment should be denied, and the district judge rather than a jury should

determine the facts.” Id. “Exhaustion should be decided, if feasible, before reaching the merits

of a prisoner’s claim.” Id. at 1170.

B. ODOC Grievance Process

Inmate grievances at TRCI are processed according to the ODOC Inmate and Grievance

Review System, found in the Oregon Administrative Rules (“OAR”), Chapter 291, Division 109.

Simon Decl. ¶ 6, ECF #53. Inmates are encouraged to communicate informally with line staff as

the primary way to resolve disputes. OAR 291-109-0100(3)(a). If a dispute cannot be resolved

informally, “it is the policy of [ODOC] to permit and encourage inmates to seek resolutions of

issues or disputes using the department’s internal inmate grievance review and appeal system.”

OAR 291-109-0100(3)(b).

The processing of inmate grievances consists of three levels of review. To begin the

process, an inmate must submit a signed grievance form to the functional unit grievance

coordinator within 30 calendar days of the date of the incident giving rise to the grievance. OAR

291-109-0150(2), (4). Upon receiving the grievance form, the grievance coordinator must date

stamp and log the form, and provide the inmate with a receipt. OAR 291-109-0150(3); OAR

291-109-160(1)(a). Unless further investigation is necessary, the grievance coordinator must

process the grievance within 45 days, and send a response to the inmate. OAR 291-109-0160(2).

The inmate may appeal the denial of the initial grievance using a grievance appeal form,

which must be submitted to the grievance coordinator together with the original grievance,

attachments, and staff responses, within 14 days from the date the grievance response was sent to

the inmate. OAR 291-109-0170(1)(a), (b). The scope of the original grievance cannot be

expanded, and no additional information may be submitted, unless the information was

unavailable when the original grievance was filed and the information is directly related to the

issue being grieved. OAR 291-109-0170(1)(a)(A). The functional unit manager must respond to

the appeal within 30 calendar days from the date the functional unit manager receives it. OAR

291-109-0170(1)(c).

Finally, the inmate can appeal the decision of the functional unit manager by submitting a

grievance appeal form within 14 days from the date the first appeal response was sent to the

inmate. OAR 291-109-170(2)(c). This second grievance appeal, which is decided by the

Assistant Director, is not subject to further administrative review. OAR 291-109-0170(f).

C. Plaintiff’s Grievances

On September 22, 2016, plaintiff complained of pain “radiating from his abdomen to his

groin on his left side.” Patton Decl. ¶ 24, ECF #54. Dr. Patton diagnosed plaintiff with a left

inguinal hernia on September 27, 2016. Id. ¶ 26.

On January 9, 2017, TRCI received an Inmate Discrimination Complaint from plaintiff

and assigned it complaint number TRCI-2017-01-099. Simon Decl. ¶ 31, ECF #53. Plaintiff

complained that he was being denied hernia surgery and requested an appointment with an

“outside doctor.” ECF #53, at 43. TRCI returned the complaint to plaintiff on January 24, 2017,

indicating that he had failed to establish how he was discriminated against based on race, color,

national origin, gender, religion, age, marital status, or disability. Id. at 42. Plaintiff did not

appeal the decision.

On February 6, 2017, TRCI received a grievance from plaintiff and assigned it grievance

number TRCI-2017-02-027. Id. at 40. This grievance also was related to the denial of hernia

surgery. Id. TRCI sent plaintiff a response on March 9, 2017, explaining that Dr. Patton and the

TLC committee4 did not believe hernia surgery was necessary and his condition would be

monitored. Id. at 39. Plaintiff did not appeal the decision.

On June 14, 2017, TRCI received a grievance from plaintiff and assigned it grievance

number TRCI-2017-06-144. ECF #60, at 12. Plaintiff complained about an appointment he had

with Dr. Patton on June 12, 2017, regarding problems with his bowel movements and requested a

“second opinion on some medical issues that [he] was suffering from,” as well as an apology

from Dr. Patton. Id. Chart notes from plaintiff’s June 12, 2017 appointment show he

4 The TLC Committee consists of various providers who “review an inmate’s care upon

recommendation by the primary provider to determine the best plan of care.” Patton Decl. ¶ 4,

ECF #54.

complained of abdominal pain and said his hernia “should be fixed.” ECF #54-1, at 13. TRCI

received plaintiff’s first-level appeal on July 14, 2017, and assigned it number TRCI-2017-06-

144A.5 ECF #60, at 13. In his first-level appeal, plaintiff complained about Dr. Patton’s

treatment of his stomach pain and hernia, and the denial of his request for a second opinion. Id.

TRCI responded to the appeal on August 22, 2017. Id. at 14. Plaintiff claims he submitted a

second-level grievance appeal form on September 1, 2017, and has offered a copy of it as

evidence. Id. at 16. The form does not have a revised grievance number and is not stamped

“Received” or “Accepted.” Id. The “TO:” section also is not filled out. Id. At a hearing held

on July 10, 2019, plaintiff testified under oath that he submitted the form on September 1, 2017.

ECF #70. Additionally, the record contains an inmate communication form dated October 17,

2017, in which plaintiff asked about the second-level appeal form he claims he submitted. ECF

#60, at 15.

On September 13, 2017, TRCI received a grievance from plaintiff and assigned it

grievance number TRCI-2017-09-035. ECF #53, at 38. Plaintiff complained about Nurse

Ortiz’s recommendation that he drink two-and-a-half gallons of water to help with his light-

headedness, shortness of breath, and disorientation. Id. TRCI responded to the grievance on

October 9, 2017. Id. at 36. On October 12, 2017, TRCI received plaintiff’s first-level appeal

and assigned it number TRCI-2017-09-035A. Id. at 33. TRCI responded to the appeal on

November 22, 2017. Id. at 32. Plaintiff did not file a second appeal.

On December 28, 2017, TRCI received a grievance from plaintiff and assigned it number

TRCI-2017-12-149. Id. at 46. This grievance was related to pain that plaintiff complained of

5 TRCI’s response to the grievance form is not in the record.

following orbital socket surgery. Id. at 31. TRCI returned the grievance as it contained

procedural defects. Id. 30. Plaintiff did not appeal the decision.

On February 21, 2018, TRCI received a grievance from plaintiff and assigned it number

TRCI-2018-02-157.6 Id. at 46. In this grievance, plaintiff claimed that Dr. Patton had made

offensive comments to him. ECF #60, at 20. TRCI responded to the grievance on March 12,

2018. Id. at 21. On April 2, 2018, TRCI received a first-level appeal from plaintiff and assigned

it number TRCI-2018-02-157A. Id. at 20. TRCI responded to the appeal on May 16, 2019. Id.

at 19. Plaintiff did not appeal the decision.

D. Analysis

1. Availability of Administrative Remedy

To be available, a remedy must be available “as a practical matter; it must be capable of

use; at hand.” Albino, 747 F.3d at 1171 (quoting Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.

2005)) (internal quotation marks omitted). “The obligation to exhaust ‘available’ remedies

persists as long as some remedy remains ‘available.’” Brown, 422 F.3d at 935 (emphasis in

original).

In determining whether an administrative remedy was available, courts look to the

applicable regulations explaining the scope of the administrative review process, testimonial

evidence from prison officials who administer the process, and whether prisoners were apprised

of the grievance system. Albino, 747 F.3d at 1175 (looking to whether prisoners were aware of

the grievance system); Brown, 422 F.3d at 937.

To satisfy their initial burden of proving there was an available administrative remedy,

defendants have submitted a declaration from Linda Simon, Acting Supervisory Executive

6 The grievance form is not in the record.

Assistant to the Superintendent at TRCI in Umatilla, who supervises the grievance review

system. Simon Decl., ECF #53. According to Simon, inmates are informed about ODOC’s

grievance review system at the Admission and Orientation (“A&O”) class when they first arrive

at the facility. Id. ¶¶ 1, 8. If an inmate misses the A&O class upon arrival, makeup classes are

available. Id. ¶ 9. Inmates are also informed of the grievance process through an inmate

handbook. Id. ¶ 10. Additionally, an inmate can ask any housing unit officer for a grievance

form, which contains inmate grievance instructions. Id.

Plaintiff does not dispute that he was aware of the grievance system or that he knew how

to obtain a form. Additionally, his regular usage of grievance forms shows his familiarity with

the grievance process. See ECF #60 (showing plaintiff’s complaint history, including 34

grievances).7

By submitting regulations explaining the scope of the administrative process and

testimonial evidence of how inmates are apprised of the grievance system, defendants have

established that there was an available administrative remedy. See Brown, 422 F.3d at 937;

Alexander v. Los Angeles Cty. Jail Sheriff, No. CV 11–6981–SVW (E), 2014 WL 8392313, at

*7-9 (C.D. Cal. Aug. 15, 2014) (finding that defendants carried their initial burden where

declaration established that jail had an inmate complaint policy and complaint forms were openly

available).

2. Exhaustion

Inmates must exhaust all available remedies before filing suit, including appealing an

adverse decision to the highest level within the grievance system. See Bennett v. King, 293 F.3d

7 Medical records also show that at one point plaintiff said to prison staff, “I’m going to grieve

you. Believe me, I am good at it.” ECF #54-1, at 29.

1096, 1098 (9th Cir. 2002); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). A mixed

complaint, one containing both exhausted and unexhausted claims is not subject to dismissal on

grounds that it contains unexhausted claims. See Jones, 549 U.S. at 219-224.

a. Grievances TRCI-2017-12-149 & TRCI-2018-02-157

“In PLRA cases, amended pleadings may supersede earlier pleadings.” Jackson v. Fong,

870 F.3d 928, 934 (9th. Cir. 2017). As a result, “[e]xhaustion requirements apply based on when

a plaintiff files the operative complaint, in accordance with the Federal Rules of Civil

Procedure.” Id. at 935.

Plaintiff filed his initial complaint on December 1, 2017, and filed an amended complaint

on December 27, 2017. Amended Compl., ECF #6. Thus, the December 27, 2017 amended

complaint is the operative complaint. Plaintiff filed grievances TRCI-2017-12-149 and TRCI-

2018-02-157 on December 28, 2017 and February 21, 2018, respectively. Because both

grievances were filed after December 27, 2017, neither is exhausted.8

b. Discrimination Complaint TRCI-2017-01-099 and Grievances

TRCI-2017-02-027 & TRCI-2017-09-035

Plaintiff did not appeal the initial response to grievance TRCI-2017-02-027, or correct

the procedural errors in discrimination complaint TRCI-2017-01-099. 9 Thus, plaintiff did not

exhaust administrative remedies for either. OAR 291-109-0170(1)(a), (b); OAR 291-109-

170(2)(c).

8 Because grievance TRCI-2017-12-149, which relates to orbital socket surgery, is unrelated to

the claims asserted in this action, it would be barred from consideration even if timely filed.

9 The administrative rules for discrimination complaints are different than those for grievances.

Namely, there is no multi-step appeals process. However, “[a] discrimination complaint that has

been returned to the inmate by the discrimination complaint coordinator for procedural reasons

cannot be reviewed. An inmate may elect to resubmit the discrimination complaint if the

procedural errors can be corrected.” OAR 291-006-0035(9).

As for TRCI-2017-09-035, plaintiff filed a first-level appeal but did not submit a second-

level appeal. Thus, plaintiff did not exhaust administrative remedies for this grievance. OAR

291-109-170(2)(c).

c. Grievance TRCI-2017-06-144

Dr. Patton, who is the only defendant named in grievance TRCI-2017-06-144, argues that

plaintiff never filed a second-level appeal of this grievance and therefore failed to exhaust

administrative remedies. Reply, 2, ECF #64. However, at a hearing on July 10, 2019, plaintiff

testified under oath that he filed a second-level appeal on September 1, 2017, but never received

a response. He has submitted a copy of a second-level grievance appeal form dated September 1,

2017, as evidence. ECF #60, at 16. Additionally, the record contains an inmate communication

form dated October 17, 2017, in which plaintiff inquired about the second-level appeal he had

filed. Id. at 15.

The Ninth Circuit has held that factual disputes regarding exhaustion are entitled to an

evidentiary hearing when it is not possible to conclusively decide credibility based on

documentary testimony.10 Here, no further evidentiary hearing is necessary because, other than

making the argument, Dr. Patton has provided nothing to refute plaintiff’s evidence that he filed

a second-level appeal of this grievance.11

10 See, e.g., Jones v. California Dep’t of Corr., 584 F. App’x 496, 496 (9th Cir. 2014) (holding

that it was inappropriate to grant summary judgment without first conducting an evidentiary

hearing on exhaustion because the prisoner declared that he filed the necessary grievances to

exhaust his claim); Hubbard v. Houghland, 471 F. App’x 625, 626 (9th Cir. 2012) (reversing

court’s decision to grant motion to dismiss, as the court improperly made a credibility

determination on inmate’s declaration regarding exhaustion without holding a hearing).

11 Dr. Patton also argues that the subject of this grievance pertained to IBS and not the hernia.

Reply 2, ECF #64. However, in this grievance, plaintiff complained about an appointment he

had on June 12, 2017, and that he was not receiving a “second opinion on some medical issues

[he] was suffering from.” At June 12, 2017 appointment, plaintiff complained of abdominal pain

As noted, this grievance names only Dr. Patton. Accordingly, to the extent plaintiff has

alleged claims against any other defendants, those claims are unexhausted and summary

judgment is granted as to those defendants.

III. Eighth Amendment Claim

In Claim I, plaintiff claims that Dr. Patton violated his Eighth Amendment rights by

denying surgery for his inguinal hernia. Amended Compl. 4, ECF #6.

A. Legal Standards

1. Eighth Amendment

The Eighth Amendment prohibits the imposition of cruel and unusual punishment and

“embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

Estelle, 429 U.S. at 102 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)) (internal

citations and quotation marks omitted). “Thus, [courts] have held repugnant to the Eighth

Amendment punishments which are incompatible with ‘the evolving standards of decency that

mark the progress of a maturing society.’” Id. (citing Trop v. Dulles, 356 U.S. 86, 101 (1958))

(citing cases).

The government must “provide medical care for those whom it is punishing by

incarceration,” and failure to provide that care may constitute an Eight Amendment violation.

Estelle, 429 U.S. at 103. “In order to state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is

only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth

Amendment.” Id. at 106. “To establish an Eighth Amendment violation, a plaintiff must satisfy

and said his hernia “should be fixed.” ECF #54-1, at 13. Additionally, in his first-level appeal,

he specified both stomach pain and his hernia. ECF #60, at 12. Thus, the grievance sufficiently

identified Dr. Patton’s failure to treat his hernia as the subject of plaintiff’s complaints.

both an objective standard—that the deprivation was serious enough to constitute cruel and

unusual punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel,

681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744

F.3d 1076 (9th Cir. 2014) (en banc).

2. Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (citation omitted). “In determining whether an officer is entitled to qualified

immunity, [the court] employs a two-step test: first, [the court] decides whether the officer

violated a plaintiff’s constitutional right; if the answer to that inquiry is ‘yes,’ [the court]

proceeds to determine whether the constitutional right was ‘clearly established in light of the

specific context of the case’ at the time of the events in question.” Mattos v. Agarano, 661 F.3d

433, 440 (9th Cir. 2011) (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)).

B. Analysis

The question of whether the denial of hernia surgery amounts to a constitutional violation

has come up in a number of cases and is dependent on the circumstances of the case. The Ninth

Circuit addressed the issue recently in Hamby v. Hammond, 821 F.3d 1085 (9th Cir. 2016).

Hamby, an inmate, had an umbilical hernia that was “small” and “easily reducible.” Id. at 1088.

He was instructed how to push it back in if it popped out and given a rib belt. Id. He suffered

from pain, but could walk without difficulty, and was prescribed medication, although he did not

take it due to his other medical conditions. Id. Within a span of several months, Hamby was

seen by prison medical staff at least ten times, during which time he complained of sharp pains

while sleeping, using the bathroom, and sitting for long periods. Id. His request for surgical

repair was denied, and he was told that his “condition [would] continue to be monitored as

needed by Health Services.” Id. The following year, Hamby complained that the hernia

“interfered with [his] sleep,” made “sitting down . . . difficult,” and generated “random pain.”

The hernia was still “easily reducible” and, although Hamby was in pain, he was going to meals

and his activities of daily living were not impaired. Id. at 1088, 1089. The Care Review

Committee, a group of medical professionals that decides whether treatments were medically

necessary, determined that surgery was not medically necessary and recommended continued

monitoring of the condition. Id. at 1089. Hamby was subsequently examined by a physician’s

assistant who noted that he was attending classes and his “activities of daily living were

unaffected.” She described his hernia as “minimal,” and recommended monitoring. Id. Hamby

later saw a urologist who also concluded that surgery was not medically necessary because

Hamby “did not have continual pain and was still performing his ADLs without incident.” Id.

The Ninth Circuit held that qualified immunity precluded Hamby’s claim. The court

recognized “many cases, both reported and unreported, holding that prison medical personnel did

not violate the Eighth Amendment even though they denied surgical treatment to an inmate with

a reducible hernia comparable to Hamby’s.” Id. at 1094.12 “[A]n examination of existing case

12 Citing Johnson v. Doughty, 433 F.3d 1001, 1003-04, 1013-14 (7th Cir. 2006) (holding prison

medical personnel did not act with deliberate indifference when they opted for non-surgical

treatment—a hernia belt, Tylenol, Metamucil, and monitoring—in response to prisoner’s

reducible inguinal hernia); Brown v. Beard, 445 F. App’x. 453, 455-56 (3rd Cir. 2011) (per

curiam) (holding prison medical personnel did not violate Eighth Amendment when they refused

to authorize surgery for prisoner’s reducible hernia, instead prescribing pain medication and

abdominal belt, plus monitoring, and despite another doctor’s opinion that surgery was

warranted); Webb v. Hamidullah, 281 F. App’x. 159, 166-67 (4th Cir. 2008) (per curiam)

(similar); Anderson v. Bales, No. 12-2244, 2013 WL 1278122, at *1 (7th Cir. Mar. 29, 2013)

(similar); Rossi v. Nev. Dep’t of Corrections, 390 F. App’x. 719, 720 (9th Cir. 2010) (similar).

law demonstrates that the non-surgical treatment the defendants selected is not indisputably

unconstitutional in circumstances like these.” Id. “Eighth Amendment doctrine makes clear 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.’” Id. at 1092 (citation omitted). “[E]xisting precedent does not ‘place[ ] beyond

debate the unconstitutionality of’ the course of non-surgical treatment pursued by the prison

officials in Hamby’s case.” Id. at 1094.

Hamby is instructive in analyzing plaintiff’s claims, as discussed below.

1. Serious Medical Need

To satisfy the objective component of the Eighth Amendment analysis, a plaintiff must

allege a deprivation that is “objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825,

834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “A deprivation is sufficiently

serious when the prison official’s act or omission results in the denial of the minimal civilized

measure of life’s necessities.” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (quoting

Farmer, 511 U.S. at 834) (internal quotation marks omitted).

A “serious medical need is present whenever the failure to treat a prisoner’s condition

could result in further significant injury or the unnecessary and wanton infliction of pain.”

Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quotation and citation omitted). Examples

of serious medical needs include “[t]he existence of an injury that a reasonable doctor or patient

would find important and worthy of comment or treatment; the presence of a medical condition

that significantly affects an individual’s daily activities; or the existence of chronic and

substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled in part

on other grounds, WMX Technologies, Inc., 104 F.3d 1133 (9th Cir. 1997). “In deciding

whether there has been deliberate indifference to an inmate’s serious medical needs, [the court]

need not defer to the judgment of prison doctors or administrators.” Hunt v. Dental Dep’t, 865

F.2d 198, 200 (9th Cir. 1989) (citation omitted).

In his Amended Complaint, plaintiff alleges that his left inguinal hernia causes him

“severe pain,” including while he is lying down, standing, and walking. Amended Compl. 4,

ECF #6. Plaintiff claims he can no longer exercise, lift weights,13 or play basketball, and has

gained over forty pounds,14 placing stress on his back and right knee. Id. Plaintiff also claims

that he experiences stomach pain, bloody stools,15 lack of appetite, and vomiting. Id.

Plaintiff’s amended complaint is not verified, and plaintiff has not submitted a sworn

declaration attesting to these facts in response to defendants’ motion for summary judgment.16

On summary judgment, “[o]nce the moving party meets its burden of establishing 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.” Cline v. Indus. Maint. Eng’g & Contracting Co., 200

F.3d 1223, 1229 (9th Cir. 2000) (citing Celotex, 477 U.S. at 323–24). “[A] party opposing a

properly supported motion for summary judgment may not rest upon the mere allegations or

13 Plaintiff claims that weightlifting is important to his psychological wellbeing: “Weight-lifting

is a motivation in my life that keeps me going and happy.” Amended Compl. 4, ECF #6.

14 Medical records reveal that plaintiff’s weight gain preceded the September 2016 left inguinal

hernia diagnosis. When plaintiff was first admitted to ODOC on October 6, 2009, he weighed

230 pounds, and by April 10, 2013, he weighed 270 pounds. A year after being diagnosed, in

August 2017, plaintiff weighed 281.2 pounds. Patton Decl. ¶ 43, ECF #54. Although the

symptoms associated with his inguinal hernia may have contributed to the weight gain, it was not

the only factor.

15 “Lab tests were negative for blood.” Patton Decl., ¶ 41, ECF #54.

16 Plaintiff submitted a declaration, but it pertains to exhaustion of grievance number TRCI-

2017-06-144. ECF #60, at 11.

denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 248.

Nevertheless, medical records offered by the defense contain some evidence of plaintiff’s

complaints. For example, at an office visit on October 31, 2016, plaintiff complained of hernia

pain. ECF #54-1, at 10. He stated that the pain was “worse” and “hurts all the way down” both

legs. Id. He described that it hurt while running, lifting, and sitting. Id. At a November 23,

2016 visit, plaintiff complained of pain from his “hernia or something.” Plaintiff complained of

hernia pain again on December 12, 2016. Id. On May 17, 2016, plaintiff reported experiencing

hernia pain since June of the previous year, and that it was worse and radiating up to under his

ribs. Id. at 12. Chart notes from the same visit, however, indicate that plaintiff “denies pain in

inguinal area,” and instead other issues such as nausea, increased bowel movements, and stool

color were discussed. Id. On June 12, 2017, plaintiff complained of abdominal pain again and

said his hernia “should be fixed.” Id. at 13. On July 14, 2017, plaintiff complained of a “dull

pain” that “comes and goes” in the pelvis area/lower abdomen going into his right testicle. Id. at

14. Approximately two weeks later, on August 2, 2017, plaintiff again complained of lower

abdominal and pelvic pain, and right pelvic pain “down inguinal hernia.” On September 1, 2017,

plaintiff complained of abdominal pain, diarrhea, bloody stools, and stools with the consistency

of coffee grounds. Id. at 16. He also complained of inguinal hernia pain, and demanded, “I want

my fucking surgery.” Id. at 16-17. On September 11, 2017, plaintiff said he was feeling light-

headed, having diarrhea, and not feeling well, and questioned whether his hernia was causing his

symptoms. Id. at 18.

According to Dr. Patton, repair of plaintiff’s inguinal hernia does not constitute a serious

medical need. Patton Decl. ¶ 19, ECF #54. Plaintiff has been diagnosed with “a small limited

herniation into the left inguinal canal . . . that requires no medical or surgical intervention and

has not changed over a period of two years.” Id. ¶ 7. Hernias may develop complications known

as incarceration or strangulation, which may require surgery. Id. ¶ 12. However,

“[c]omplications are not inevitable and a hernia does not progress to complication over time.”

Id. In fact, “98% of patients who have diagnosed inguinal hernias do not experience the

complicated condition of incarceration,” and of the two percent who do, less than two percent of

those individuals will have a strangulated hernia. Id. ¶¶ 15, 17. Plaintiff suffers from an

uncomplicated hernia. Id. ¶ 13. This type of routine inguinal hernia does not constitute a serious

medical need:

Repair for a routine inguinal hernia is not a serious medical need, either inside or

outside a correctional facility. Within a correctional facility, there is no realistic

risk that a routine hernia will develop complications and remain untended.

Outside a prison, un-repaired hernias are fairly common. The hernia often remains

un-repaired because it does not cause substantial discomfort and the risk of

incarceration is low. A medical reason for obtaining surgery to repair a hernia,

other than to relieve minor discomfort or to accommodate a person whose work

involves vigorous physical activity, is to eliminate the less than two percent (2%)

risk that a hernia will incarcerate where medical attention is unavailable. While

physicians in private practice will generally counsel surgery to repair a routine

hernia, it is left to the patient to decide whether the risk/benefit and cost/benefit

ratio warrants surgery. Patients often choose not to have surgery. Mr. Harbert

does not have a complicated hernia and has access to medical staff twenty four

hours a day, seven days a week.

Id. ¶ 19.

Moreover, according to Dr. Patton, “[t]here is no objective evidence that [plaintiff] was in

pain due to his left inguinal hernia.” Id. ¶ 38. Rather, “the symptoms he described that were

causing him abdominal pain, i.e. pain in the abdomen at the umbilicas, increased bowel

movements, constipation, pain radiating under ribs, loss of appetite, are more closely related to

symptoms of IBS.” Id. Additionally, plaintiff’s complaints of low back pain are associated with

degenerative disc disease, i.e. a normal, aging spine. Id. ¶¶ 31-32.

Thus, even when the evidence is viewed in the light most favorable to plaintiff, there is

no serious medical need. Dr. Patton’s uncontroverted medical opinion is that plaintiff’s hernia

does not require surgery, and there is no evidence that a “reasonable doctor” would find

plaintiff’s condition “worthy of the surgery.” McGuckin, 974 F.2d at 1059-60. Moreover,

plaintiff’s pain is attributable to his other physical ailments. Patton Decl. ¶ 38. Even plaintiff

himself has expressed some ambivalence that his hernia is the source of his pain and symptoms.

See ECF #54-1, at 10 (on November 23, 2016, plaintiff complained of pain from his “hernia or

something”); id. (on September 11, 2017, plaintiff complained of feeling light-headed, having

diarrhea, and not feeling well, and questioned whether his hernia was causing his symptoms).

In any event, even if plaintiff has a serious medical need, Dr. Patton is entitled to

summary judgment on the subjective prong of deliberate indifference, as discussed below.

2. Deliberate Indifference

For the subjective component, a plaintiff must show that the prison official was

“deliberately indifferent” to a substantial risk of serious harm. Farmer, 511 U.S. at 834. When a

prison doctor manifests indifference “in their response to the prisoner’s needs . . . [by]

intentionally denying or delaying access to medical care,” the subjective component is met.

Estelle, 429 U.S. at 104-05. Deliberate indifference in this context means that the official

“knows of and disregards an excessive risk to inmate health or safety; the official must both be

aware of the facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

1060 (9th Cir. 2004). “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, 821 F.3d at 1092 (citing Snow, 681 F.3d at 987). “Rather, to

prevail on a claim involving choices between alternative courses of treatment, a prisoner must

show that the chosen course of treatment was medically unacceptable under the circumstances

and was chosen in conscious disregard of an excessive risk to the prisoner’s health.” Toguchi,

391 F.3d at 1058 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal

quotation marks omitted)). The subjective test “focuses only on what a defendant’s mental

attitude was.” Id. at 1057 (quoting Farmer, 511 U.S. at 839) (internal quotation marks omitted).

“Before it can be said that a prisoner’s civil rights have been abridged . . . the indifference

to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical

malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d

458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). Additionally, because “a prison

official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’” officials who

respond reasonably are not liable. Farmer, 511 U.S. at 844-45.

Here, as explained above, it cannot be said that Dr. Patton’s “chosen course of treatment”

for plaintiff’s small, unchanged inguinal hernia was “medically unacceptable under the

circumstances.” Toguchi, 391 F.3d at 1058. It also cannot be said that Dr. Patton acted “in

conscious disregard of an excessive risk to [plaintiff’s] health.” Id. Dr. Patton provided plaintiff

with extensive and timely medical care. On September 27, 2016, five days after plaintiff

complained of left inguinal pain, Dr. Patton performed an ultrasound. ECF #54-3, at 7. On

December 13, 2016, plaintiff had an x-ray of his left hip after complaining that his hernia pain

had worsened. Id. at 9. Dr. Patton performed another ultrasound on July 18, 2018, to compare it

with the results to the 2016 ultrasound, and determined that the hernia was unchanged.17 Id. at

13; Patton Decl. ¶ 29, ECF #54.

Dr. Patton also submitted two requests to the TLC Committee for possible hernia surgery,

one in December 2016 and another in February 2017. Patton Decl. ¶¶ 27, 28, ECF #54; ECF 54-

5, at 27-28. In the 2016 request, Dr. Patton noted it would be helpful if plaintiff lost weight, and

after plaintiff lost weight, Dr. Patton submitted a second request to the TLC Committee in 2017.

Id.

Along with the care described above, Dr. Patton has prescribed medications to help

plaintiff deal with the various symptoms he experiences.18 Of note, plaintiff has refused to take

certain prescribed medications because he doesn’t “want to have to go to [the] medication line.”

ECF #60, at 14.

Even viewing the evidence is viewed in the light most favorable to plaintiff, there is no

indication that Dr. Patton had the culpable state of mind to meet the “high” standard for

deliberate indifference. Toguchi, 391 F.3d at 1060. Plaintiff has offered no evidence that Dr.

Patton’s treatment was medically unacceptable under the circumstances or that it was chosen in

conscious disregard of an excessive risk to plaintiff’s health. Id. at 1058. A “difference of

opinion between a physician and the prisoner” is not enough to constitute deliberate indifference.

17 Since being incarcerated in 2009, plaintiff has received a total of 11 x-rays and three

ultrasounds for back, abdomen, knee, chest, hand, hip, and head pain or injuries. ECF #54-2, at

75-76; ECF #54-3, at 1-13.

18 “At present [plaintiff] is prescribed Mirtazapine for treatment of depression, Simvastatin for

high cholesterol, Ranitidine for symptoms of GERD and IBS, and Sebex medicated shampoos.

[Plaintiff] can obtain ibuprofen and Tylenol on his housing unit at no cost for pain management

of his chronic low back pain.” Patton Decl. ¶ 8, ECF #54.

Hamby, 821 F.3d at 1092 (citation omitted). In this case, there is simply no evidence of

indifference, let alone indifference that is “substantial.” Broughton, 622 F.2d at 460.

3. Qualified Immunity

Moreover, as in Hamby, “an examination of existing case law demonstrates that the non-

surgical treatment the defendants selected is not indisputably unconstitutional in circumstances

like these.” 821 F.3d at 1094. “[E]xisting precedent does not ‘place[] beyond debate the

unconstitutionality of’ the course of non-surgical treatment pursued by the prison officials in

[plaintiff’s] case.” Id. (citation omitted). Accordingly, even assuming for the sake of argument

that there is a constitutional violation, Dr. Patton would be entitled to qualified immunity.

IV. Negligence/Medical Malpractice

In his second claim, plaintiff alleges a claim of negligence, or medical malpractice,

against Dr. Patton.19 Amended Compl. 4-6, ECF #6.

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

U.S. Const. amend XI. Under the Eleventh Amendment, federal courts may not entertain

lawsuits brought by citizens against a state without the state’s express consent. Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 54 (1996). “The test for determining whether a State has

waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hosp.

v. Scanlon, 473 U.S. 234, 241 (1985). The court “will find waiver only where stated by the most

express language or by such overwhelming implications from the text as [will] leave no room for

19 Plaintiff also asserts this negligence claim against other defendants, but as discussed above,

any claims against defendants other than Dr. Patton are unexhausted.

any other reasonable construction”). Edelman v. Jordan, 415 U.S. 651, 673 (1974). The OTCA

contains no such express consent to file suit against the state in federal court. Estate of Pond v.

Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or. 2004).

It is apparent from the evidence presented in this case that Dr. Patton was acting in his

official capacity. “When a plaintiff brings a lawsuit against a government officer in his official

capacity, a court treats the suit ‘as a suit against the entity’ that employs the officer.” Updike v.

Clackamas Cty., No. 3:15-CV-00723-SI, 2015 WL 7722410, at *3 (D. Or. Nov. 30, 2015)

(quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Dr. Patton is an employee of ODOC,

which is an arm of the State of Oregon. See Osborne v. Hill, No. CV 05-641-HA, 2006 WL

1215084, at *1 (D. Or. May 1, 2006) (finding ODOC is an arm of the State of Oregon). Thus,

the state law negligence/medical malpractice claim suit must be treated as one against the State

of Oregon and dismissed under the Eleventh Amendment.

ORDER

Defendants’ Motion for Summary Judgment (ECF #52) is GRANTED and this case is

dismissed with prejudice.

DATED August 30, 2019.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge