Cufaude v. Therapeutic Level of Care Committee

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANDREW B. CUFAUDE, No. 2:22-cv-01604-HZ

Plaintiff, OPINION & ORDER

v.

THERAPEUTIC LEVEL OF CARE

COMMITTEE, DR. GARTH GULICK,

DR. BRYON D. HEMPHILL, and SNAKE

RIVER CORRECTIONAL INSTITUTION

HEALTH SERVICES,

Defendants.

Andrew Benton Cufaude

14511972

Snake River Correctional Institution

777 Stanton Blvd

Ontario, OR 97914-8335

Plaintiff, Pro Se

Natalie M. Fisher

Oregon Department of Justice

Trial Division

1162 Court Street N.E.

Salem, OR 97301

Attorneys for Defendants

1 - OPINION & ORDER

HERNÁNDEZ, District Judge:

This matter comes before the Court on Defendants’ Motion for Summary Judgment, ECF

23. For the reasons that follow, the Court grants Defendants’ Motion.

BACKGROUND

Plaintiff Andrew Cufaude is an adult in the custody (“AIC”) of the Oregon Department of

Corrections (“ODOC”) and has been housed at Snake River Correctional Institution (“SRCI”)

since July 7, 2010.

On October 20, 2022, Plaintiff filed a pro se Complaint pursuant to 42 U.S.C. § 1983 in

which he alleges the SRCI Therapeutic Level of Care Committee (“TLCC”), Dr. Garth Gulik,

Dr. Byron Hemphill, and SRCI Health Services violated his Eighth Amendment rights when they

failed to provide him with adequate medical treatment for his back pain and a kidney cyst.

Plaintiff seeks damages and injunctive relief of (1) “correct pain medication”; (2) restrictions on

lifting, bending, climbing, standing, walking, and hearing; (3) a cane and bottom bunk; and

(4) “another . . . CT Scan/MRI or kidney surgery.”

On August 22, 2023, Defendants filed a Motion for Summary Judgment. The Court took

Defendants’ Motion under advisement on November 1, 2023.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The

moving party bears the initial responsibility of informing the court of the basis of its motion, and

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

2 - OPINION & ORDER

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting former Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the

light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,

1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the

existence of a material issue of fact implausible, that party must come forward with more

persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

Defendants assert they are entitled to summary judgment on the grounds that (1)

Plaintiff’s claims against SRCI Health Services and the TLCC are barred by the Eleventh

Amendment, (2) Plaintiff’s claims against Drs. Gulik and Hemphill brought in their official

capacity are barred by the Eleventh Amendment, and (3) Plaintiff fails to establish deliberate

indifference in violation of the Eighth Amendment.

3 - OPINION & ORDER

I. Eleventh Amendment

The Eleventh Amendment generally bars a citizen from suing a state in federal court. See

Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001); College Savings Bank v.

Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999). Supreme Court

precedent establishes that a state is immune from suit in federal court unless Congress has

abrogated the state's immunity by appropriate federal legislation or the state itself has waived it.

Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). State sovereign

immunity proscribes federal suits against state agencies and departments, which are arms of the

state. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003)(“It is well

established that agencies of the state are immune under the Eleventh Amendment from private

damages or suits ... in federal court.”). “State prisons are considered state agencies for purposes

of the Eleventh Amendment.” Gosney v. Oregon Dep't of Corr., No. 6:21-CV-1511-SI, 2022 WL

959228, at *2 (D. Or. Mar. 30, 2022)(citing Allison v. California Adult Auth., 419 F.2d 822, 823

(9th Cir. 1969)).

Individual defendants who are sued in their official capacities are protected by Eleventh

Amendment immunity to the extent that plaintiffs seek damages. Brown v. Oregon Dep't of

Corr., 751 F.3d 983, 989 (9th Cir. 2014)(“‘Eleventh Amendment immunity extends to actions

against state officers sued in their official capacities because such actions are, in essence, actions

against the governmental entity[.]’”)(quoting Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th

Cir. 1982)). See also Lujan v. Oregon Dep't of Corr., No. 2:17-CV-01726-JO, 2019 WL

1460867, at *3 (D. Or. Apr. 2, 2019(“While defendants are correct that monetary relief would

not be available to [the plaintiff], the Eleventh Amendment does not bar claims for declaratory

4 - OPINION & ORDER

and injunctive relief against individuals in their official capacity.”))(citing ACS of Fairbanks,

Inc. v. GCI Commc'n Corp., 321 F.3d 1215, 1217 (9th Cir. 2003).

SRCI Health Services and the TLCC are departments of ODOC, which is an agency of

the State of Oregon. The State of Oregon has not waived its sovereign immunity from suit in

federal court. SRCI Health Services and the TLCC are, therefore, immune from suit in this court

pursuant to the Eleventh Amendment. See Oien v. Or., No. 2:17-CV-00978-HZ, 2018 WL

503259, at *3 (D. Or. Jan. 22, 2018)(granting summary judgment to ODOC and Two Rivers

Correctional Institution based on Eleventh Amendment immunity); see also, Gosney, 2022 WL

959228, at *2 (dismissing claims against ODOC based on Eleventh Amendment immunity).

In addition, to the extent that Plaintiff sues Drs. Gulik and Hemphill in their official

capacity and seeks damages, those claims are also barred by the Eleventh Amendment. See Sol v.

Dep’t of Corr., No. 2:16-CV-00822-AA, 2017 WL 3429388, at *3 (D. Or. Aug. 8, 2017)(“the

Eleventh Amendment bars claims for damages against state officials sued in their official

capacities”)(citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)).

II. Deliberate Indifference

A. Standard

Deliberate indifference to the serious medical needs of an AIC is “cruel and

unusual punishment” under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–06

(1976). To establish an Eighth Amendment claim, a plaintiff must show he has a “serious

medical need” and defendants were “deliberately indifferent” to that need. Id. at 104. “[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,

5 - OPINION & ORDER

298 F.3d 898, 904 (9th Cir. 2002)(internal citations omitted). See also Jiau v. Tews, No. 22-

15576, 2023 WL 6478885, at *1 (9th Cir. Oct. 5, 2023)(quotation omitted)(“To maintain an

Eighth Amendment claim based on prison medical treatment, [the plaintiff] must . . . show a

serious medical need by demonstrating that failure to treat [his] condition could result in further

significant injury or the unnecessary and wanton infliction of pain,” “a purposeful act or failure

to respond to a prisoner's pain or possible medical need,” and “harm caused by the

indifference.”). “[T]he official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference may appear when prison

officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the

way in which prison physicians provide medical care.” Colwell v. Bannister, 763 F.3d 1060,

1066 (9th Cir. 2014)(quotation omitted). “‘[A] patient's difference of medical opinion concerning

the appropriate course of treatment[, however,] is not sufficient to constitute deliberate

indifference.’” Vazquez v. Conanan, No. 21-16731, 2023 WL 2624782, at *2 (9th Cir. Mar. 23,

2023)(quoting Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). “Deliberate indifference is a

high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

A. Back Pain

Plaintiff suffers from moderate chronic degenerative disc disease (“DDD”) in his

back. Gulik Decl., ECF 25, Ex. 2 at 1. Plaintiff underwent lumbar surgery in 2016 and 2019 to

treat his DDD. Plaintiff, however, continued to complain of pain and weakness from his DDD.

On September 10, 2021, Plaintiff underwent an MRI to evaluate his DDD. The

MRI revealed a “[r]ecurrent broad-based left subarticular disc protrusion resulting in left

6 - OPINION & ORDER

subarticular recess stenosis” at L4-L5. Gulik Decl., Ex. 2 at 90. There was, however, “[n]o overt

neural impingement evident” and it was noted that “this is smaller than the protrusion previously

visible in 2018.” Id. There was at L4-L5 “[m]ild spinal canal narrowing centrally, mild bilateral

foraminal narrowing,” and a “[m]edium sized broad-based bulge and disc osteophyte complex.”

Id. at L5-S1. The MRI, however, also reflected that there was “[i]nterval resolution of the

previous left subarticular disc herniation” at L5-S1 and “[n]o spinal stenosis centrally, mild left

foraminal narrowing and mild bilateral subarticular recess narrowing.” Id. In short, the

September 2021 MRI “showed improvement from imaging taken in 2018 before [Plaintiff’s]

2019 lumbar spine surgery.” Gulik Decl., ¶ 9.

In 2021 Plaintiff received physical therapy, was provided with an ankle foot

orthosis (“AFO”) to address “foot drop,” and was prescribed Cymbalta for back pain.1 Plaintiff

reported in November and December 2021 that Cymbalta was helping with his back pain, but in

April 2022 he noted his lower back pain had become “worse lately.” Gulik Decl., Ex. 2, at 43,

50-51. Plaintiff requested imaging and different medication: baclofen and norco.2 On April 22,

2022, Plaintiff had an x-ray of his lumbar spine that reflected “[s]igns of [DDD at] L4-5 and L5-

S1,” but “no significant interval change” in comparison to a September 2021 x-ray. Gulik Decl.,

Ex. 2 at 83. Nevertheless, in 2022 and 2023 Plaintiff received a cane and a bottom-bunk

restriction.

Plaintiff repeatedly requested a third back surgery, but was advised numerous

1 “Cymbalta is a selective serotonin and norepinephrine reuptake inhibitor (SSNRI) that is

approved by the Federal Food and Drug Administration (FDA) to treat chronic musculoskeletal

pain, such as the chronic pain suffered by” Plaintiff. Gulik Decl., ¶ 11.

2 Baclofen is a muscle relaxer and norco is a combination of hydrocodone and acetaminophen.

7 - OPINION & ORDER

times that there is “no obvious surgical solution” for his DDD. See, e.g., Clements Decl., ECF

24, Ex. 1 at 17; Gulik Decl., Ex. 2, at 217. Plaintiff was briefly prescribed baclofen in April 2022

and July 2022 and norco in July 2022, but on July 27, 2022, the TLCC discontinued those

prescriptions on the basis that they are not medically indicated for chronic pain. Id. at 157.

Plaintiff continued to receive Cymbalta. On January 18, 2023, the TLCC denied Plaintiff’s

request for baclofen and indicated Plaintiff should be prescribed Trileptal. Clements Decl., Ex. 1

at 17. Plaintiff has been taking Trileptal since January 2023. Clements Decl., ¶ 7; Ex. 1 at 42.

On March 22, 2023, the TLCC denied Plaintiff’s request for another MRI of his

lumbar spine on the basis that there were no new findings to support another MRI. On May 24,

2023, the TLCC approved physical therapy for evaluation and pain management.

Even viewing the evidence in the light most favorable to Plaintiff, the Court finds

that Plaintiff has not shown that Defendants’ actions met the high standard required to establish

deliberate indifference. Specifically, Plaintiff does not present evidence that the chosen course of

treatment “was medically unacceptable under the circumstances and was chosen in conscious

disregard of an excessive risk to [his] health.” Toguchi, 391 F.3d at 1058 (internal quotations and

citation omitted). Rather, the record reflects Plaintiff was regularly and repeatedly seen by

medical staff; provided with medication, a cane, a lower bunk, and an AFO; received physical

therapy; and received numerous x-rays and MRI’s of his back. These actions do not reflect

conscious disregard of an excessive risk to Plaintiff’s health but rather ongoing attention to

Plaintiff’s condition and symptoms. Although Plaintiff asserts he should have received a third

back surgery, the record reflects there was “no obvious surgical solution” for his DDD. See, e.g.,

Clements Decl., Ex. 1 at 17; Gulik Decl., Ex. 2, at 217. In addition, Plaintiff’s belief that he

8 - OPINION & ORDER

should receive different medication for his pain amounts to no more that a difference of opinion,

which is insufficient to establish deliberate indifference. Vazquez, 2023 WL 2624782, at *2 (“a

patient's difference of medical opinion concerning the appropriate course of treatment is not

sufficient to constitute deliberate indifference”)(quotation omitted).

Although the Court is sympathetic to the distress caused by Plaintiff’s ongoing

symptoms, the Court finds Defendants provided ongoing, reasonable care and did not act with

deliberate indifference.

II. Kidney Cyst

The September 10, 2021, MRI of Plaintiff’s lumbar spine detected a five centimeter left

renal cyst. “Renal cysts are . . . fairly common, can be benign, and are typically asymptomatic.

Diagnostic tests and procedures may include blood tests, urine tests, imaging, or ultrasounds.”

Gulik Decl., ¶ 14. When renal cysts are “benign in appearance,” treatment is “observation.” Id.

When cysts show “signs of possible cancer,” treatment is “biopsy or removal.” Id. Plaintiff

requested surgery to remove the cyst, but the TLCC denied his request on December 29, 2021 on

that basis that there was “no support for surgery.” Gulik Decl., Ex. 2 at 225. The TLCC,

however, ordered a “CAT scan with contrast” to look at the cyst. Id. A renal ultrasound was

conducted on March 16, 2022, and reflected “[a] simple appearing 5 cm cyst within the left renal

lower pole cortex.” Id. at 86. The ultrasound “showed no significant growth and no

noted abnormalities, with no signs of nephrolithiasis or hydronephrosis.” Gulik Decl., ¶ 16.

“Surgical intervention was not medically indicated [and] the renal cyst appears to be benign.” Id.

Dr. Gulik testifies that medical staff will continue to observe Plaintiff’s cyst.

Viewing the evidence in the light most favorable to Plaintiff, the Court finds that

9 - OPINION & ORDER

Plaintiff has not shown that Defendants’ actions met the high standard required to establish

deliberate indifference with respect to his renal cyst. Specifically, Plaintiff does not present

evidence that the chosen course of treatment “was medically unacceptable under the

circumstances and was chosen in conscious disregard of an excessive risk to [his] health.”

Toguchi, 391 F.3d at 1058 (internal quotations and citation omitted). In fact the record reflects

the cyst is likely benign, it did not increase in size between the December 2021 MRI and the

March 2022 ultrasound, and observation rather than surgery is the medically reasonable

approach under the circumstances.

CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motion for Summary Judgment, ECF

23.

IT IS SO ORDERED.

DATED: __________D__e_c_e_m__b_e_r _1_,_ 2_0_2__3_______

______________________________

MARCO A. HERNÁNDEZ

United States District Judge

10 - OPINION & ORDER