Macias

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

RYAN MACIAS, Case No. 6:23-cv-01738-MTK

Plaintiff, OPINION AND ORDER

v.

STATE OF OREGON; OREGON

DEPARTMENT OF CORRECTIONS;

THOMAS BRISTOL; WARREN ROBERTS;

JOE BUGHER; JOSHUA HIGHBERGER;

and KRYSTA LYNCH,

Defendants.

KASUBHAI, United States District Judge:

Plaintiff Ryan Macias brings claims under 42 U.S.C. § 1983 alleging that Defendants

violated the Eighth Amendment to the U.S. Constitution by failing to provide him adequate

medical care while he was in custody of the Oregon Department of Corrections (“ODOC”).

Defendants move for summary judgment. For the reasons discussed below, Defendant Bugher’s

motion for summary judgment is granted, and the State Defendants’ and Defendant Roberts’

motions for summary judgment are granted in part and denied in part.

BACKGROUND

Plaintiff is an individual who was formerly an adult in custody (“AIC”) at ODOC. When

Plaintiff entered ODOC custody in February 2019, he had an existing injury to his left knee and

internal hardware in that knee. Decl. Ryan Macias (“Macias Decl.”) ¶¶ 1-2, ECF No. 48. On

February 27, 2019, Plaintiff reported in an ODOC medical history screening that he had a

“chronic . . . leg wound” and that he was awaiting results from an MRI. Aggrey Decl. Ex. 101, at

3, ECF No. 32-1.

On February 28, 2019, an X-Ray Report noted that “[t]here appears to be a tunnel

entering the distal femur” and there was a “mild narrowing of the lateral compartment,” but

“[o]therwise, no acute or chronic abnormality [was] seen.” Meyer Decl. Ex. B, at 33, ECF No.

34-2.

On April 29, 2019, Plaintiff’s knee was “swollen [and] leaking pus,” so providers cleaned

and covered the wound and suggested “[d]ressing changes as needed.” Aggrey Decl. Ex. 101, at

29. Those notes also indicated a “[r]isk of” and “concern for infection.” Id.

On May 6, 2019, another X-Ray Report showed “mild narrowing of the lateral

compartment” and “no interval change” was noted. Meyer Decl. Ex. B, at 31.

On May 28, 2019, Plaintiff was seen by Richard A. Carpenter, M.D., at Motion

Orthopedics. Meyers Decl. Ex. B, at 21-23. Dr. Carpenter treated Plaintiff “for a draining wound

in his right thigh.” Aggrey Decl. Ex. 101, at 81. Dr. Carpenter noted that “screw heads are

sticking through posteriorly and may be the source of his chronic infection.” Id. He noted:

I think the best thing to do would be to take the screws out, which could contribute

to his chronic infection. . . . We will then get a deep wound culture and debride this

and place him on antibiotics and hopefully the culture will give us the bacteria,

which is probably methicillin-sensitive Staph aureus. He is on doxycycline right

now and it may not be effective. We will be happy to do this as the prison arranges

for this.

Id.

In June of 2019,1 providers removed screws from Plaintiff’s knee and performed a deep

culture of the wound. Edwards Decl. Supp. Resp. State Defs.’ Mot. (“Edwards Decl.”) Ex. 1, at

9, ECF No. 49-1; Aggrey Decl. Ex. 101, at 82-93. Over the next few days, the wound was treated

and dressed in fresh bandages, but continued to drain and tunnel. Edwards Decl. Ex. 1, at 8-9.

On July 31, 2019, an X-Ray Report showed “what appear[ed] to be an oblique ghost

tunnel in the distal femur” but was “unremarkable otherwise.” Meyer Decl. Ex. B, at 30.

Also on July 31, 2019, Dr. Carpenter saw Plaintiff and noted that he “continue[d] to

drain.” Edwards Decl. Ex. 1, at 73. Dr. Carpenter wrote that “[i]t [was] his belief that it would be

best treated by a team of vascular surgeons and ortho because it is . . . so associated with vascular

that he needs a vascular surgeon at least available.” Id.

On August 1, 2019, Defendant Roberts and the Therapeutic Levels of Care (“TLC”)

Committee, an ODOC medical review board, considered Dr. Carpenter’s proposal of surgery and

instead recommended another MRI. Edwards Decl. Ex. 1, at 56.

1 The date of this surgery is less than clear, but not materially in dispute. State Defendants

represent that “[o]n June 13, 2019, Plaintiff had screws removed from his knee and a deep

culture was performed by the outside provider.” State Defs.’ Mot. 3 (citing Aggrey Decl. Ex.

101, at 82-93). The records cited by the State Defendants contain a referral sheet from ODOC

referring Plaintiff for an appointment with Dr. Carpenter on June 13, 2019, and other records

describing wound culture results from that same date. Aggrey Decl. Ex. 101, at 82-93. The

ODOC referral form contains a note that appears to say “removed two screws[;] obtained deep

cultures” by a provider on June 13, 2019. Id. at 93. Other evidence provided by Plaintiff also

suggests that on June 13, 2019, Plaintiff underwent “[r]emoval of 2 screws from the left knee.”

Edwards Decl. Ex. 1, at 75.

For his part, Plaintiff represents that he underwent the procedure to remove the screws from his

knee on July 17, 2019. Pl.’s Resp. State Defs.’ Mot. 3 (citing Edwards Decl. Ex. 1, at 7). The

document cited by Plaintiff is a page of ODOC progress notes that show that on July 17, 2019,

Plaintiff “returned from outside med trip.” Edwards Decl. Ex. 1, at 7. Several entries earlier in

those notes show that Plaintiff also “returned from outside med trip” on June 13, 2019, and was

that day “seen upon return from surgical intervention to remove screws in [left] thigh [and] deep

wound cultures.” Id. at 9. Dr. Carpenter wrote in his July 31, 2019 note, that Plaintiff was being

“seen . . . post operative for removal of his screws on 07/17/19.” Edwards Decl. Ex. 1, at 73.

On August 6, 2019, ODOC providers scheduled Plaintiff for an MRI with an outside

provider. Aggrey Decl. Ex. 101, at 15, 80. The MRI found “[a]n osseous tunnel extends through

the metaphyseal region of the distal femur broaching the medial cortex and externalizing through

adjacent subcutaneous soft tissues to the skin surface.” Edwards Decl. Ex. 1, at 74.

On September 13, 2019, Plaintiff was seen for tenderness in his wound when he reported

that it was “swollen, hot, [and] with green drainage,” though no drainage was apparent at that

visit. Edwards Decl. Ex. 1, at 4. Progress notes indicate that providers were “seeking . . . consult

with provider to ensure [appointment] with ortho is sched[uled], unable to find [appointment] . . .

.” Edwards Decl. Ex. 1, at 4. Five days later, Plaintiff’s “leg started bleeding” and the wound was

“open, bloody.” Edwards Decl. Ex. 1, at 4. Providers cleaned the wound and “[i]ssued [large]

bandaids for [Plaintiff] to self care.” Id. They also noted that Plaintiff “ha[d] upcoming

appointments regarding [the] wound.” Id.

On September 27, 2019, Plaintiff reported in an inmate communication form that his

knee was “starting to bleed and hurting more” and inquired about the results of his MRI and the

next steps. Edwards Decl. Ex. 2, at 3. ODOC staff noted that an appointment was requested and

scheduled for October 22, 2019. Edwards Decl. Ex. 2, at 3.

On October 18, 2019, Plaintiff was seen again regarding his “knee infection,” and

reported continued swelling and drainage. Edwards Decl. Ex. 1, at 3. “Referral [was] sent to

Hope Ortho – according to Dr. Carpenter [Plaintiff] most likely will need a debridement but . . .

the vasculature . . . make[s] the procedure difficult in this rural setting. He advises transferring to

an ortho center where vascular and infectious disease can consult.” Edwards Decl. Ex. 1, at 3.

On November 17, 2019, Plaintiff reported to ODOC that “the pain [was] getting way

worse and still leaking fluid” and he asked for an update as to his knee surgery. Edwards Decl.

Ex. 2, at 4. In response, ODOC staff noted “as of today there is no surgery scheduled.” Id.

Similarly, on December 3, 2019, Plaintiff inquired about his knee surgery and ODOC staff

responded that no appointment was scheduled and they were “waiting on outside provider.”

Edwards Decl. Ex. 2, at 5.

On January 6, 2020, Plaintiff again reported that his knee was bleeding. Edwards Decl.

Ex. 1 at 24. On January 21, 2020, Plaintiff was seen at OHSU “[d]ue to concern for a progressive

and worsening infection if not addressed at this time, requiring large resection of bone in the

future, will plan for open debridement of this tract and his draining sinus.” Edwards Decl. Ex. 1,

at 80-81. ODOC staff noted that “Dr. Carpenter recommends debridement again” in a “complex

location” and requested further evaluation and treatment from OHSU. Aggrey Decl. Ex. 101, at

73. Provider recommendation notes both describe the surgery as “[n]on urgent” and state that

“[i]n action likely will result in more bony involvement requiring [a] larger operation [and]

higher costs of care.” Aggrey Decl. Ex. 101, at 74.

On February 7, 2020, Plaintiff again inquired as to whether his surgery was scheduled,

and ODOC responded that it was “too soon to know surgery date.” Edwards Decl. Ex. 2, at 6.

On February 27 and 28, 2020, almost seven months after Dr. Carpenter’s surgery

recommendation, the ODOC TLC team approved Plaintiff’s surgery at OHSU, and ODOC

physicians placed an order with OHSU for surgery. Aggrey Decl. Ex. 101, at 14, 72.

No party cites to any evidence of what occurred between February 28, 2020, and

February 17, 2021, though Defendants contend that Plaintiff’s surgery was then delayed due to

the COVID-19 pandemic.

On February 17, 2021, Plaintiff reported that his wound was bleeding and he “couldn’t

get it to stop bleeding.” Edwards Decl. Ex. 1, at 54. Providers cleaned the wound, applied

dressings, and gave Plaintiff instructions to watch for infection. Id.

On March 6, 2021, an ODOC officer sent Plaintiff to the medical clinic for his “infected

wound” and Plaintiff “noted a hardware protruding out of the skin, needle like hardware not

sharp at the tip,” plus more drainage and tenderness. Edwards Decl. Ex. 1, at 53. Plaintiff was

then seen at Santiam Hospital for an “[a]bscess like structure” with “drainage,” and prescribed

antibiotics. Aggrey Decl. Ex. 101, at 10, 65-71. The wound continued to drain between March 8-

11, 2021. Edwards Decl. Ex. 1, at 53.

On March 12, 2021, ODOC contacted OHSU about follow up plans. Aggrey Decl. Ex.

101, at 25. On March 16, 2021, doctors at Blue Mountain Diagnostic Imaging evaluated

Plaintiff’s knee and found “what appear[ed] to be an oblique ghost tunnel in the distal femur.”

Meyers Decl. Ex. B, at 30. Images of Plaintiff’s knee were “unremarkable otherwise.” Id.

Plaintiff’s wound continued to drain and be cleaned and cared for in April 2021. Edwards

Decl. Ex. 1, at 42-52. On April 11, 2021, Plaintiff’s blood culture tested positive for

staphylococcus aureus. Meyers Decl. Ex. B, at 35.

On May 4, 2021, OHSU providers saw Plaintiff and again recommended and evaluated

Plaintiff for surgery. Edwards Decl. Ex. 1, at 76 (“Based on chronicity and failure to resolve with

antibiotics treatment, [OHSU providers] continue[d] to recommend surgical intervention”);

Suppl. Aggrey Decl. Ex. 102, at 1-2, ECF No. 60. The TLC team approved an MRI and surgical

procedure for Plaintiff on May 6, 2021. Aggrey Decl. Ex. 101, at 61.

In June of 2021, Plaintiff continued to inquire about next steps, report symptoms to

ODOC, and request additional bandages to care for his wound, which he stated “continu[ed] to

leak and drain non-stop, day and night.” Edwards Decl. Ex. 2, at 8-12. He inquired about his

surgery four times over July and August of 2021. Id. at 13-16.

On October 17 or 18, 2021, Plaintiff “felt a ‘pop’ sensation deep in [his] knee, and then

saw a string sticking out from the wound.” Macias Decl. ¶ 7; Edwards Decl. Ex. 1, at 38. ODOC

medical staff treated Plaintiff, cleaned his wound, and noted a “suture type plyable material

sticking out,” but otherwise “only gave [Plaintiff] a bandage.” Edwards Decl. Ex. 1, at 38;

Macias Decl. ¶ 7. On or about October 18, 2021, Plaintiff returned to medical and again received

only a bandage. Macias Decl. ¶ 8. Plaintiff “was extremely upset because this wound had been

an ongoing problem for years by this point, and it was only getting worse and more painful, and

now there was a string hanging out of it.” Id. That day, Plaintiff saw Defendant Highberger in the

hallway, showed him the wound, and begged him to help him get medical attention. Id.

Defendant Highberger “said he would take care of it.” Id.

On October 20, 2021, Defendant Thomas Bristol saw Plaintiff and “touched the wound

repeatedly while examining it with his unwashed, ungloved hands” and pulled on the string and

trimmed it, which caused Plaintiff pain. Macias Decl. ¶ 9. “Over the next two weeks, the wound

became increasingly more painful and began oozing pus. It also began to smell terrible.” Id. ¶ 10.

Plaintiff reported his symptoms to medical. Id.

On November 3, 2021, Plaintiff returned to see Defendant Bristol who “again failed to

even wash his hands or use gloves and started touching [Plaintiff’s] open wound with his

unsanitary hands.” Macias Decl. ¶ 11. Defendant Bristol told Plaintiff that blood test results from

October 20, 2021 were negative for infection and otherwise did not provide any other medical

attention to Plaintiff, despite that “the wound was still oozing and smelled badly.” Id.

On November 5, 2021, Plaintiff again returned to medical where he saw Defendant

Bristol, who “took a wound culture by jamming a swab into the wound without any painkiller or

numbing, which caused [Plaintiff] immense pain and ongoing bleeding.” Macias Decl. ¶ 12. A

“few days” later, Plaintiff was told that he had tested positive for staph infection and received

prescription antibiotics. Id.; Edwards Decl. Ex. 1, at 27-28.

The wound continued to get worse, bleeding, oozing fluid, and causing Plaintiff pain.

Macias Decl. ¶ 13; Edwards Decl. Ex. 1, at 27. “At one point, it leaked so much fluid that it

soaked [his] pants.” Macias Decl. ¶ 13.

On December 10, 2021, Defendant Bristol saw Plaintiff and again “touched the wound

without putting on gloves or even washing his hands.” Macias Decl. ¶ 14. That day, Plaintiff also

saw an orthopedic specialist at Hope Orthopedics who recommended surgery and “explained that

there was concern all the way back in January 2020 . . . that [Plaintiff] had ‘chronic draining

osteomyelitis.’” Macias Decl. ¶ 14; Edwards Decl. Ex. 1, at 59-64.

On December 15 or 16, 2021, the TLC committee approved the surgery for Plaintiff’s

knee. Edwards Decl. Ex. 1, at 57.

Plaintiff finally had surgery in January of 2022. Macias Decl. ¶ 15. The open wound

finally healed, but Plaintiff still experiences pain and burning in his knee. Macias Decl. ¶ 16.

In sum, Plaintiff had an open wound on his leg for at least three years, from the time he

entered ODOC custody in February 2019 until his surgery in January 2022. Macias Decl. ¶¶ 1-2.

“The entire time the wound was open, it was painful and leaked fluid,” at times “leak[ing] so

much fluid that [Plaintiff’s] clothing and bedding became wet.” Id. ¶ 3. The pain was sometimes

“severe and interfere[d] with [Plaintiff’s] ability to perform daily living activities.” Id. No one at

ODOC ever told Plaintiff why his surgery was not being scheduled. Id. ¶ 5. Plaintiff submitted at

least 21 communication forms requesting additional information or attention to help him get care

for his wound. See Edwards Decl. Ex. 2.

Plaintiff filed two grievances with ODOC regarding the level of medical care he was

receiving, in May and October of 2021. Edwards Decl. Ex. 3, at 2-4, 10-12. In May of 2021,

ODOC responded to Plaintiff’s grievance—through a non-party to this case—that “[t]his past 14

months have been very difficult for Health Services across the state,” and “[d]ue to the

worldwide COVID-19 Pandemic patients have had to wait for outside medical care unless a

medical emergency was present.” Edwards Decl. Ex. 3, at 1. ODOC “apologize[d] for the length

of time [Plaintiff] ha[d] been uncomfortable” but noted that “this has largely been unavoidable

because of the pandemic.” Id. In November of 2021, ODOC—through Defendant Roberts—

responded that “[Plaintiff] ha[d] received timely and adequate medical care.” Edwards Decl. Ex.

3, at 7. On May 3, 2022, ODOC—through Defendant Bugher, Assistant Director of Health

Services—denied Plaintiff’s appeal of his grievance and “support[ed] the medical opinion of Dr.

Warren Roberts, Chief Medical Director.” Id. at 5.

STANDARDS

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file, if any, show “that 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). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,

Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is

such that a reasonable jury could return a verdict for the nonmoving party determines the

authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of

material fact. Celotex Corp. 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. Id. at 324.

Special rules of construction apply when evaluating a summary judgment motion: (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 630-31.

DISCUSSION

I. Eleventh Amendment Immunity

To start, Defendants ODOC and Roberts argue that claims against them are barred by the

Eleventh Amendment. The Eleventh Amendment bars suits against the State and its agencies,

absent unequivocal consent by the State. Jensen v. Brown, 131 F.4th 677, 696 (9th Cir. 2025).

A. Defendant ODOC

Plaintiff alleges a claim for negligence against State Defendant ODOC. Defendant

ODOC has not waived its right to sovereign immunity. This Court accordingly lacks jurisdiction

to hear claims against it. Plaintiff’s negligence claim is dismissed without prejudice.

B. Defendant Roberts

Defendant Roberts moves for summary judgment against damages claims brought against

him in his official capacity, arguing that the Eleventh Amendment extends immunity to state

officials. Plaintiff does not dispute this argument. Pl.’s Resp. 1 n.1. Plaintiff’s claims against

Defendant Roberts in his official capacity are dismissed without prejudice.

II. Plaintiff’s Deliberate Indifference Claim

Plaintiff alleges that Defendants violated his Eighth Amendment rights by acting with

deliberate indifference to his serious medical needs.

42 U.S.C. § 1983 allows a person to sue a state actor for the deprivation of a right

protected by federal law. Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). To bring a claim

under § 1983, the plaintiff must show that each named defendant, through their own individual

actions, violated the plaintiff's constitutional right. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Prison officials and physicians violate the Eighth Amendment’s proscription against cruel

and unusual punishment when they act with deliberate indifference to an AIC’s serious medical

needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To sustain this claim, Plaintiff must establish

the existence of “a serious medical need” and show that “defendant’s response to the need

was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A “‘serious’

medical need exists if the failure to treat a prisoner’s condition could result in further significant

injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050,

1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133

(9th Cir. 1997) (quoting Estelle, 429 U.S. at 104).

A prison official acts with deliberate indifference when he knows that an AIC is faced

with a “substantial risk of serious harm” and disregards that risk by failing to take reasonable

measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994). Deliberate indifference to an

AIC’s serious medical needs may be shown by the denial, delay, or intentional interference with

medical treatment or by the manner in which prison officials provide medical care. Estelle, 429

U.S. at 104-05; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). The indifference to an

AIC’s medical needs must be substantial; inadequate treatment due to negligence, inadvertence,

or differences in opinion between AICs and medical personnel do not rise to the level of a

constitutional violation. Estelle, 429 U.S. at 105-06. “A prison official acts

with deliberate indifference only if the prison official knows of and disregards an excessive risk

to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal

quotation marks and alterations omitted). “Mere negligence in diagnosing or treating a medical

condition, without more, does not violate a prisoner’s Eighth Amendment rights.” Id. (citation

omitted).

A. State Defendants

Defendants Thomas Bristol, Joshua Highberger, Krysta Lynch,2 and ODOC (collectively,

“State Defendants”) move for summary judgment and argue that they provided Plaintiff

constitutionally adequate care.

Here, there is no dispute that Plaintiff’s wound constituted a serious medical need. State

Defs.’ Mot. 7 n.1. The State Defendants argue that they did not act with deliberate indifference

because “Plaintiff received significant medical attention” and “the COVID-19 pandemic

impacted the timing of his care.” State Defs.’ Mot. 7-8.

To start, as discussed above, Plaintiff did receive medical attention while in ODOC

custody. But that is not the question before this Court. An inmate’s Eight Amendment rights can

be violated even if they receive medical treatment. See, e.g., Ortiz v. City of Imperial, 884 F.2d

1312, 1314 (9th Cir.1989) (“Contrary to appellees’ arguments, however, appellants need not

prove complete failure to treat Ortiz. As this court has stated, ‘access to medical staff is

meaningless unless that staff is competent and can render competent care.’”) (citation omitted).

The Eighth Amendment may also be violated where there is a failure to competently treat a

serious medical condition. Id.

2 In his Response, “Plaintiff does not object to dismissal of Defendant Lynch without prejudice

from this action.” Pl.’s Resp. State Defs.’ Mot. 1, ECF No. 47. Plaintiff’s claims against

Defendant Lynch are dismissed without prejudice.

Next, Defendants offer that “Plaintiff’s surgery was indefinitely delayed due to the

COVID-19 pandemic.” State Defs.’ Mot. 4. In support of this crucial assertion, Defendants cite

two pages in the record: (1) ODOC documentation of physician’s orders made to “OHSU ortho”

on February 26 and 28, 2020 (Aggrey Decl. Ex. 101, at 14); and (2) a TLC form that approves an

“OHSU ortho surgery” on February 27, 2020 (id. at 72). Neither of those pieces of evidence

suggests, much less establish, that Plaintiff’s surgery was delayed because of the pandemic.

Generalized assertions that treatment throughout the state were delayed is insufficient to settle

the matter as to whether the pandemic was the reason Plaintiff’s treatment was delayed.

Furthermore, Defendants ask this Court to make inferences against Plaintiff, which is

inappropriate since Plaintiff is the non-moving party.

The only evidence that suggests a pandemic occurred at all during this time period comes

in the form of a May 2021 grievance response in which ODOC staff represented that “[d]ue to

the worldwide COVID-19 Pandemic patients have had to wait for outside medical care unless a

medical emergency was present.” Edwards Decl. Ex. 3, at 1. That post-hoc rationale is

insufficient to eliminate genuine disputes of material fact as to whether Defendants caused any of

the delays in Plaintiff’s treatment.

Although a reasonable fact finder could infer that Plaintiff’s surgery was delayed because

of the pandemic, they could also infer that some failure of Defendants’ was the reason that

Plaintiff was not seen for surgery sooner than January 2022. The Ninth Circuit recognizes that

prison officials may be held liable for deliberate indifference where they delay an inmate’s

medical care and the delay is harmful. Snow v. McDaniel, 681 F.3d 978, 990 (9th Cir. 2012) (“In

order to prove deliberate indifference through delay of medical care, then, Snow must show that

Dr. MacArthur’s failure to schedule an appointment for him led to further injury.”); Jett v.

Penner, 439 F.3d 1091, 1096-98 (9th Cir. 2006).

As noted above, Dr. Carpenter first recommended Plaintiff for debridement on May 28,

2019. When Dr. Carpenter again recommended surgery in July 2019, ODOC’s TLC team opted

instead for an MRI. Edwards Decl. Ex. 1, at 56, 73. Over the next several months, through at

least January of 2020, Plaintiff’s wound continued to swell, bleed, drain, and cause him pain.

Aggrey Decl. Ex. 101, at 15, 80; Edwards Decl. Ex. 1, at 3-4, 24, 74, 80-81; Edwards Decl. Ex.

2, at 3-5. Thereafter, Plaintiff was seen “[d]ue to a concern for a progressive and worsening

infection if not addressed at this time,” where doctors at OHSU again recommended surgery.

Edwards Decl. Ex. 1, at 80-81. Providers were aware that “[i]naction likely will result in more

bony involvement requiring [a] larger operation [and] higher costs of care.” Aggrey Decl. Ex.

101, at 74. ODOC finally approved Plaintiff for surgery at the end of February 2020, almost

seven months after Dr. Carpenter identified that Plaintiff needed surgery. And Plaintiff did not

receive that surgery until almost two years later. Defendants’ unsupported assertions—that

COVID-19 caused the delay and that “ODOC routinely followed up with OHSU to schedule the

surgery once nonemergent surgeries were being scheduled again”—are insufficient to merit

judgment as a matter of law. State Defs.’ Mot. 4. Rather, the evidence viewed in the light most

favorable to Plaintiff indicates that Plaintiff’s medical care was delayed for unknown reasons

while both his pain and his condition worsened.

B. Defendant Roberts

Defendant Roberts asserts that his only involvement in Plaintiff’s claims is that he

responded to one of Plaintiff’s grievance appeals. Def. Roberts’ Mot. 6 (citing Meyer Decl. Ex.

A, at 10). Roberts’ briefing represents that he “was appointed to the TLC Committee in

December 2020 and served until December 2024.” Def. Roberts’ Mot. 6. But Plaintiff submits

evidence that Defendant Roberts was part of the TLC Committee in August 2019 when it

declined to authorize Plaintiff for the recommended surgery, and instead recommended an MRI.

Edwards Decl. Ex. 1, at 56 (TLC form with “Roberts” and other names circled, indicating that

Roberts and others were present and part of that decision). Additionally, on December 21, 2021,

Defendant Roberts reviewed Plaintiff’s grievance in which Plaintiff stated that he had attempted

to get care for his knee for “several years” and was experiencing “severe pain” when “walking,

sitting, sleeping, or any other activity that involve[d] movement of [his] knee.” Edwards Decl.

Ex. 3, at 10-12. Defendant Roberts wrote in response that Plaintiff was “referred to an

Orthopedic specialist” and that his “left thigh wound is clean and free of signs and symptoms of

infection.” Meyer Decl. Ex. A, at 10.

In sum, the evidence shows that Defendant Roberts, who played a significant leadership

and decision making role in the TLC, was involved in at least two critical decisions related to

Plaintiff’s medical care: a recommendation for an MRI instead of surgery in August 2019, and

then a response to a grievance in December 2021 in which Plaintiff informed Roberts that he had

been attempting to get care for years and was experiencing severe pain. Viewing the facts in the

light most favorable to Plaintiff, a reasonable fact-finder could conclude that Defendant Roberts

personally participated in the denial or delay of Plaintiff’s medical care. See Hutchinson v.

United States, 838 F.2d 390, 394 (9th Cir. 1988). A jury could find from this record that

Defendant Roberts, as Medical Director of ODOC and member of the TLC Committee, acted

with deliberate indifference to Plaintiff’s health because he knew that surgery was recommended

in 2019, recommended an MRI instead, and thereby participated in the delay and denial of

Plaintiff’s care in a way that left him in worse condition and experiencing “severe pain” more

than two years later. See, e.g., Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012), overruled

on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1084 (9th Cir. 2014) (“Snow may prove

deliberate indifference by showing that prison administrators or physicians denied, delayed, or

intentionally interfered with surgery for his hip condition.”); Hunt v. Dental Dept., 865 F.2d 198,

200 (9th Cir. 1989) (delay alone is not enough, but delay plus officials’ awareness of pain and

additional harm is sufficient to state a claim). Defendant Roberts’ motion is denied as to this

claim.

Defendant Roberts’ motion is also denied at this stage as to Plaintiff’s claim for punitive

damages. There is insufficient evidence to conclude as a matter of law that Roberts’ conduct was

not “malicious, wanton, or oppressive” under the circumstances. Dang v. Cross, 422 F.3d 800,

807 (9th Cir. 2005).

C. Qualified Immunity

The State Defendants and Defendant Roberts contend they are entitled to qualified

immunity on Plaintiff’s deliberate indifference claim.

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) (quotation marks and citation omitted). The purpose of qualified immunity is to “strike a

balance between the competing ‘need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and liability

when they perform their duties reasonably.’” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.

2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of whether the

government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed

questions of law and fact.” Pearson, 555 U.S. at 231.

“Determining whether officials are owed qualified immunity involves two inquiries: (1)

whether, taken in the light most favorable to the party asserting the injury, the facts alleged show

the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly

established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th

Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

As discussed above, a reasonable fact finder could find that the State Defendants and

Defendant Roberts acted with deliberate indifference to Plaintiff’s medical needs in violation of

his Eighth Amendment rights. It was clearly established in 2019 that prison officials may not

delay an inmate’s care in a way that causes additional harm. See Jett v. Penner, 439 F.3d 1091,

1096-98 (9th Cir. 2006); Snow v. McDaniel, 681 F.3d 978, 990 (9th Cir. 2012) (“In order to

prove deliberate indifference through delay of medical care, then, [Plaintiff] must show that Dr.

MacArthur’s failure to schedule an appointment for him led to further injury.”). Accordingly,

taking the facts in the light most favorable to Plaintiff, Defendants’ conduct would be in

violation of clearly established constitutional law. Defendants are not entitled to qualified

immunity at this stage.

III. Plaintiff’s Claim for Failure to Train and Supervise

Plaintiff alleges that State Defendants Highberger and Lynch, in addition to Defendants

Bugher and Roberts, violated his Eighth Amendment right to constitutionally adequate medical

care by failing to adequately train and supervise subordinate staff.

Supervisors may be liable under § 1983 for “1) their own culpable action or inaction in

the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional

deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous

indifference to the rights of others.” Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022)

(quotation marks and citation omitted). To succeed on this claim, “the plaintiff must show that

the official was ‘deliberately indifferent to the need to train subordinates, and the lack of training

actually caused the constitutional harm or deprivation of rights.” Id. (quotation marks and

citation omitted).

A. State Defendants

The State Defendants argue that there is no evidence they failed to train or supervise in a

way that harmed Plaintiff. In response, the only evidence Plaintiff offers is his October 2021

encounter with Defendant Highberger, in which Highberger assured Plaintiff “he would take care

of” Plaintiff’s injury. Macias Decl. ¶ 8. That single encounter is insufficient to show that

Defendant Highberger’s or any other State Defendant’s failure to train or supervise caused

Plaintiff’s harm. The State Defendants’ motion is granted as to this claim.

B. Defendant Roberts

Defendant Roberts also moves for summary judgment on this claim. Although Plaintiff

submits a report authored by a Jill Goldsmith to show that Defendant Roberts has a pattern of

delaying and denying necessary medical care, that evidence does not establish anything as it

pertains to Defendant Roberts’ treatment of Plaintiff or how Roberts’ supervision or training

affected Plaintiff’s constitutional rights. Accordingly, the Court declines to consider that

evidence at this stage. No other evidence indicates that Defendant Roberts’ failure to supervise

or train caused Plaintiff’s injuries. Defendant Roberts’ motion is granted as to this claim.

C. Defendant Bugher

Defendant Joe Bugher was the Assistant Director of Health Services for ODOC during

the period relevant to Plaintiff’s claims. Decl. Joe Bugher Supp. Mot. Summ. J. ¶ 2 (“Bugher

Decl.”), ECF No. 27. Defendant Bugher “had no involvement in the medical decisions made by

the [Therapeutic Level of Care Committee] or by [Oregon State Correctional Institution] medical

providers concerning [P]laintiff’s medical care.” /d. 43. Rather, as Assistant Director of Health

Services, Defendant Bugher reviewed inmate appeals from medical grievance decisions made by

Defendant Roberts, the ODOC Medical Director. /d. ¥ 4.

On May 3, 2022, Defendant Bugher issued a letter informing Plaintiff that Bugher

“support[ed] the medical opinion of Dr. Warren Roberts, Chief Medical Director.” Bugher Decl.

Ex. 1, at 5, ECF No. 27-1. Defendant Bugher “relied on the medical opinion of Dr. Roberts that

[P]laintiff had received timely and adequate medical care in denying the grievance.” Bugher

Decl. § 5. That evidence, which only shows Bugher’s involvement months after Plaintiff

ultimately received the surgery he needed, is the only evidence of Bugher’s role in this case. That

is insufficient to show Defendant Bugher’s personal involvement in delaying or denying

Plaintiff's medical care. Defendant Bugher’s motion for summary judgment is granted.

CONCLUSION

For the reasons discussed above, Defendant Bugher’s Motion for Summary Judgment

(ECF No. 26) is GRANTED. The State Defendants’ Motion for Summary Judgment (ECF No.

31) is GRANTED in part and DENIED in part. Defendant Roberts’ Motion for Summary

Judgment (ECF No. 33) is GRANTED in part and DENIED in part.

DATED this 3rd day of September 2026.

Tf ee

MUSTAFA T. KASUBHAI (he/him)

United States District Judge

Page 19 — OPINION AND ORDER