# McCright v. Beamer

> District Court, D. Oregon · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10393446

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

LARRY McCRIGHT,
Plaintiff, No. 2:17-cvy-00942-MO
V.
OPINION AND ORDER
DR. LELAND BEAMER et al.,
Defendants.

MOSMAN, J.,
This action comes before me once more on Defendants’ Motion for Summary Judgment
[ECF 116]. For the following reasons, I GRANT Defendants’ motion and DISMISS this case.
BACKGROUND
Plaintiff Larry McCright brings this civil rights action under 42 U.S.C. § 1983 against
various medical employees of Oregon Department of Corrections (“ODOC”). In his first
complaint, Mr. McCright alleged Defendants were deliberately indifferent to a variety of his
serious medical conditions, including urinary issues and a heart condition. See generally Compl.
[ECF 1]. .
In August 2018, I denied Mr. McCright’s Motion for Preliminary Injunction. Order [ECF
31]. Mr. McCright had sought an immediate change in his heart medication and heart surgery. Id.

1 -OPINION AND ORDER

at 1. I denied his request because he failed to establish a likelihood of success on the merits and a
likelihood of irreparable injury. Jd. at 5. .
In May 2019, I granted Defendants’ Motion for Summary Judgment, but I gave Mr.
McCright leave to amend his complaint. Op. & Order [ECF 76] at 4. As to his urinary issues, I
ruled Mr. McCright had failed to exhaust his administrative remedies. /d. at 2. As to his heart
condition, I ruled Mr. McCright had failed to demonstrate the existence of a genuine issue of
material fact. Id. at 4.
Mr. McCright has since filed an Amended Complaint [ECF 95]. In addition to the claims
raised in his first complaint, Mr. McCright alleges Defendants violated his Eighth Amendment
rights by assigning him an unsafe bed and failing to timely provide pain medication following
heart surgery. Am. Compl. [ECF 95] 4] 46-47. Defendants have filed another Motion for
Summary Judgment [ECF 116].
LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The initial burden is on the moving party to show that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). While the movant has the initial
burden, the nonmoving party “may not rest upon mere allegation or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986); see also Fed. R. Civ. P. 56(e). The nonmoving party must
show through the production of evidence that an issue of fact remains to be tried. Celotex Corp.,
477 U.S. at 324.

2 OPINION AND ORDER

DISCUSSION
For the following reasons, I DISMISS all Mr. McCright’s claims either for (1) failure to
exhaust administrative remedies, or (2) failure to demonstrate the existence of a genuine issue of
material fact.
I. Failure to Exhaust Administrative Remedies
“No 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).!
A prisoner must exhaust administrative remedies before filing suit. McKinney v. Carey, 311 F.3d
1198, 1200-01 (9th Cir. 2002) (per curiam). If a prisoner has failed to exhaust, the court will
dismiss the claim without prejudice. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th
Cir. 2007).
As stated above, I previously granted summary judgment in favor of Defendants on Mr.
McCright’s urinary issues because Mr. McCright failed to exhaust his administrative remedies.
Mr. McCright includes those issues in his amended pleading. Am. Compl. [ECF 95] 18-23.
He does not, however, assert he exhausted administrative remedies as to those issues. Id. {J 15—
Nor does he provide any evidence of exhaustion of those issues. See generally P1.’s Exs.
[ECF 96]. He argues he submitted two medical grievances related to this action. Pl.’s Resp. [134]
at 3. Neither of those grievances is related to his urinary issues. Pl.’s Exs. [96] A-B. Joshua
Ybarra, a Grievance Coordinator for ODOC, conducted “a thorough search of Mr. McCright’s

' Mr. McCright has been released from confinement, but this action arises from events that
transpired while he was incarcerated. Larry McCright Decl. [ECF 132] 2. Since he has been released,
his request for an order requiring Defendants to “continue to treat Plaintiff's serious medical conditions
and provide all necessary medications and medical care” is denied as moot. See Am. Compl. [ECF 95] at
12,
3 - OPINION AND ORDER

grievance records” and found “none relating to urinary issues.” Joshua Ybarra Decl. [ECF 120]
{ 18; see also id. Exs. 2-3. Accordingly, I again find Mr. McCright failed to exhaust his
administrative remedies as to his urinary issues, and 1 GRANT summary judgment in favor of
Defendants on those issues.
In addition to his urinary issues and heart condition, Mr. McCright raises two additional
issues in his amended pleading. First, he alleges he was “assigned an unsafe broken spear bed”
after he returned from heart surgery. Am. Compl. [ECF 95] § 46. Second, he alleges Defendants
failed to provide him with lidocaine patches to help control his pain. Jd. 47. Mr. McCright did
not exhaust his administrative remedies as to his allegation of an unsafe bed. Pl.’s Exs. [96] A—
B; Ybarra Decl. Ex. 2. Accordingly, IGRANT summary judgment in favor of Defendants on
that issue. However, Defendants concede Mr. McCright exhausted his administrative remedies as
to his allegation regarding pain medication. Defs.’ Mot. Summ. J. [ECF 116] at 9.
In sum, two matters may go forward: (1) Mr. McCright’s claim of deliberate indifference
as to his heart condition pre-surgery; and (2) Mr. McCright’s claim of deliberate indifference
regarding the delay in receiving lidocaine patches for pain post-surgery. I DISMISS without
prejudice his remaining claims for failure to exhaust.
IL. Failure to Demonstrate Existence of Genuine Issue of Material Fact as to Deliberate
Indifference
“A public official’s ‘deliberate indifference to a prisoner’s serious illness or injury’
violates the Eighth Amendment ban against cruel punishment.” Clement v. Gomez, 298 F.3d 898,
904 (9th Cir. 2002) (quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)). “Deliberate
indifference is a high legal standard. A showing of medical malpractice or negligence is
insufficient to establish a constitutional deprivation under the Eighth Amendment.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “A difference of opinion does not amount to a

4 — OPINION AND ORDER

deliberate indifference to [a plaintiff's] serious medical needs.” Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989). To show deliberate indifference, a prison must prove “the official knows of
and disregards an excessive risk to inmate health or safety.” Clement, 298 F.3d at 904 (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Mere delay is insufficient to state a claim of
deliberate medical indifference unless the delay was harmful. Shapley v. Nev. Bd. of State Prison
Comm ’rs, 766 F.2d 404, 407 (9th Cir. 1985).
“A plaintiff must allege facts, not simply conclusions, that show that an individual was
personally involved in the deprivation of his civil rights. Liability under § 1983 must be based on
the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998).
As discussed below, I find Defendants have satisfied their initial burden to show that no
genuine issue of material fact exists, and Mr. McCright fails to set forth specific facts showing
that there is a genuine issue for trial. I explain in turn why his claims against each Defendant fail.
A. David Brown
Mr. McCright alleges David Brown “provided false information to Annetta McCright,”
Mr. McCright’s mother, when he informed her that Mr. McCright was receiving lidocaine
patches. Am. Compl. [95] ¢ 43. According to Ms. McCright, Mr. Brown incorrectly informed her
that Mr. McCright had received a lidocaine patch. Annetta McCright Decl. [ECF 97] {{] 3-4. Ms.
McCright states: “Mr. Brown was either repeating information passed on to him or just wasn’t
being honest.” Jd. 4. For his part, Mr. Brown claims his incorrect statement was the result of a
“mis-read.” Pl.’s Exs. [ECF 96] Ex. R; see also Adam Kidwell Decl. [ECF 121] Ex. 2, at 4.
Mr. McCright has failed to demonstrate the existence of a genuine issue of material fact
as to whether Mr. Brown acted with deliberate indifference. Mr. McCright does not set forth

5 — OPINION AND ORDER

specific facts that Mr. Brown knew Mr. McCright needed lidocaine patches, had not received
them, and his failure to receive the patches posed an excessive risk to his health or safety. If Mr.
McCright had done so, then perhaps Mr. Brown’s statement to Ms. McCright could be
circumstantial evidence of deliberate indifference. But standing alone, Mr. Brown’s incorrect
statement to Mr. McCright’s mother does not rise to the level of a constitutional violation.
B. Heidi Miller
Mr. McCright alleges Heidi Miller violated his constitutional rights by failing to provide
pain medication in a timely fashion. Am. Compl. [ECF 95] 47. Specifically, Mr. McCright
alleges he was supposed to begin receiving lidocaine patches to help control his pain on March
13, but Ms. Miller did not order the patches until March 22, and he did not receive his first patch
until April 1. Jd; see also Pl.’s Exs. [ECF 96] Exs. S, U. Defendants concede Mr. McCright
experienced a nearly one-month delay in receiving lidocaine patches. Defs.’ Mot. Summ. J. [ECF
116] at 12. However, they provide evidence that Mr. MeCright received other pain medications
in the interim—and even declined pain medicine on multiple occasions. Kidwell Decl. [ECF
121] Ex. 2, at 4, 7; see also Pl.’s Exs. [ECF 96] Ex. B, at 1
Mr. McCright fails to set forth specific facts showing that the delay in receiving lidocaine
patches was harmful. A showing of delay without harm is insufficient to establish a
constitutional deprivation under the Eighth Amendment. Shapley, 766 F.2d at 407. Mr. McCright
also fails to set forth specific facts showing that the delay was the result of anything other than
simple negligence. A showing of mere negligence is also insufficient to establish a constitutional
deprivation under the Eighth Amendment. Toguchi, 391 F.3d at 1060.

6 — OPINION AND ORDER

C. Carrie Coffey
Mr. McCright claims Ms. Coffey was responsible for the delay in receiving lidocaine
patches. Jd. § 47. But Mr. McCright fails to allege facts that show Ms. Coffey was personally
involved in the delay. Even if he had, for the reasons discussed above, the delay did not rise to
the level of a constitutional violation. .
D. Dr. DiGiulio
Mr. McCright alleges Dr. DiGiulio caused him to miss follow-up treatment after surgery
for his urinary issues. Am. Compl. [ECF 95] § 23. Mr. McCright seems to suggest his heart
condition would have been caught during that missed treatment. Jd. | 24. To the extent this
allegation is related to the urinary issues, I have already determined Mr. McCright failed to
exhaust his administrative remedies. In any event, this conclusory allegation fails to satisfy the
high legal standard of deliberate indifference. Toguchi, 391 F.3d at 1060 (“A showing of medical
malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”).
Mr. McCright also alleges Dr. DiGiulio should not have responded to his latest grievance
regarding the delay in receiving lidocaine patches because Dr. DiGiulio is a named Defendant in
this action. Am. Compl. [ECF 95] 44. According to Mr. McCright, “Dr. DiGiulio’s
involvement had a harmful influence on Plaintiffs grievance and must be treated highly
prejudicial.” Jd.
This claim fails. I review Mr. McCright’s grievances to ensure he has exhausted his
administrative remedies. I have already determined he exhausted his remedies as to his claim
regarding the lidocaine patches, Since that claim is properly before me, I conduct an independent
analysis into whether Defendants violated Mr. McCright’s constitutional rights. Mr. McCright

7 —- OPINION AND ORDER

has failed to establish a constitutional deprivation under the Eighth Amendment because he fails
to show that any delay caused harm or more than simple negligence. The fact that Dr. DiGiulio
participated in the grievance process does not affect my decision on the constitutional issues
before me.
E. Sara Johnson
Mr. McCright makes the same allegation against Sara Johnson that he made against Dr.
DiGiulio: she caused him to miss follow-up treatment after surgery for his urinary issues and
thereby failed to diagnose his heart condition. Jd. {J 23-24. This allegation fails for the same
reasons described above.
Additionally, Mr. McCright alleges Ms. Johnson was “fully aware” that his severe
medical condition required treatment and that he was suffering psychological trauma. Jd. { 39.
However, he fails to allege specific facts that show Ms. Johnson was personally involved in the
deprivation of his civil rights. Barren, 152 F.3d at 1194 (“A plaintiff must allege facts, not
simply conclusions, that show that an individual was personally involved in the deprivation of
his civil rights.’’). He also fails to support his conclusory allegation with any evidence.
Accordingly, Mr. McCright fails to show that there is a genuine issue for trial involving Ms.
Johnson.
F. Eileen Purcell, Joe DaFoe, Dr. Steve Shelton
Mr. McCright broadly alleges Eileen Purcell, Joe DaFoe, and Dr. Steve Shelton violated
his civil rights, but he fails to allege specific facts that show any of them were personally
involved. Mr. McCright generally alleges the three were “fully aware” of his severe medical
conditions, knew he needed treatment, and “had a history of denying prisoners medical care until
their condition worsens or it becomes too late.” See id. {J 34-35, 39. But he fails to allege

8 — OPINION AND ORDER

specific facts that any of the three were personally involved in the alleged deprivation of his civil
rights. Nor does he support his conclusory allegations with any evidence.
G. Dr. Leland Beamer
As I discussed in my prior opinion, Mr. McCright alleged Dr. Beamer was
unconstitutionally delaying his necessary heart surgery. Op. & Order [ECF 76] at 3-4. Since
then, Mr. McCright has undergone surgery, and he continues to see outside medical providers.
Leland Beamer Decl. [ECF 123] 7-9.
Mr. McCright fails to provide any evidence that would cause me to reach a different
conclusion here than I reached in my first opinion. He has received the surgery he demanded in
this lawsuit, and he fails to provide specific facts of any harm that accrued in the interim. A
showing of mere delay without harm is insufficient to establish a constitutional deprivation under
the Eighth Amendment. Shapley, 766 F.2d at 407.
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9 — OPINION AND ORDER

CONCLUSION
Mr. McCright has failed to exhaust his administrative remedies on his urinary issues and
his claim of being assigned a broken bed. I GRANT summary judgment in favor of Defendants
on those claims and DISMISS them without prejudice.
Mr. McCright appropriately exhausted his administrative remedies as to (1) his claim of
deliberate indifference as to his heart condition, and (2) his claim of deliberate indifference
regarding the delay in receiving lidocaine patches after his open-heart surgery. However, he has
failed to demonstrate that a genuine issue of fact exists regarding those claims. Accordingly, I
GRANT summary judgment in favor of Defendants on those claims and DISMISS them with
prejudice.
IT IS SO ORDERED.
Le
DATED this SP tay of March, 2021.

Mw WA We
MICHAEL W. MAN
United States District Judge

10 OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393446. Public record. Not legal advice.