Opinion
No. CV-02-135-HU.
July 27, 2004
Terry E.H. Thompson, #6016408, Snake River Correctional Institution, Ontario, Oregon, Plaintiff Pro Se.
Hardy Myers, ATTORNEY GENERAL, Lynne D. Rennick, ASSISTANT ATTORNEY GENERAL, Department of Justice, Salem, Oregon, Attorneys for Defendants.
FINDINGS RECOMMENDATION
Pro se plaintiff Terry Thompson, an inmate at the Snake River Correctional Institution (SRCI), brings this 42 U.S.C. § 1983 action against thirty-two defendants, all but two of whom work at SRCI in administrative, medical, or security capacities, or as correctional officers. One defendant, Jeffery VanValkenberg, is an Assistant Attorney General for the State of Oregon. He was dismissed from the action in an earlier Order. Another defendant, Dr. Thomas D. Mulgrew, provided medical care to plaintiff at his office.
In his Second Amended Complaint, plaintiff raises three claims: (1) that defendants were deliberately indifferent to his serious medical needs when he was in special housing from January 2000 to January 2001; (2) that defendants were negligent in the provision, or lack thereof, of medical care; and (3) that defendants denied him his right of access to the courts. Plaintiff seeks $4,290,000 in damages.
Plaintiff moves for summary judgment on all three claims. Defendants move for summary judgment on all three claims arguing that plaintiff fails to state a claim for relief under either federal or state law, defendants are qualifiedly immune from liability in damages because they did not violate plaintiff's clearly established constitutional rights, and plaintiff is not entitled to equitable relief because there is no significant, real, or immediate possibility that plaintiff will be harmed in the future by any unconstitutional practices.
I recommend that plaintiff's motion be denied and that defendants' motion be granted in part and denied in part.
BACKGROUND
Plaintiff uses a wheelchair. Since his incarceration in August 1996, he has been approved for, at various times, the use of his own personal wheelchair, an egg crate mattress, a TENS unit, an extra blanket, a hospital bed, and extra underwear. Pltf's Exhs. 6-13, 16, 20, 29, 32A, 32B, 42 in Sup. of Pltf's Mtn for Sum. Jdgmt (Corrections Information Systems Health Status Reports ("ODOC Health Status Reports")).
A Transcutaneous Electrical Nerve Stimulation (TENS) unit is a small, hand-held battery operated device that when activated administers a continuous mild electrical charge to stimulate muscles. Joseph Klika Affid. at ¶ 21 n. 19. What Klika's affidavit does not explain is that a TENS unit is used to treat chronic pain. The Merck Manual of Diagnosis Therapy 1370 (Mark H. Beers Robert Berkow eds., 17th ed. 1999). Depending on the severity of pain, twenty minutes to a few hours of stimulation may be applied several times daily. Id. at 2495.
On January 29, 2000, plaintiff was moved to the Disciplinary Segregation Unit (DSU) at SRCI after contraband was found in the pocket of his wheelchair. Attchmt 3 to Klika Affid. The contraband consisted of a plastic ruler, which had attempted to be sharpened, with pieces of a popsicle stick taped along one edge to create a handle. Id. Upon escort to the DSU, a further search of plaintiff's wheelchair revealed a screw, a small piece of sandpaper, and a small piece of aluminum foil, blackened on one side. Id.
On February 11, 2000, a hearings officer issued his Findings of Fact and Conclusions of Law, following a February 1, 2000 hearing, concluding that plaintiff was guilty of misconduct.Id. The assessed consequences included 120 days in the DSU.Id.
From his initial confinement in the DSU on January 29, 2000, until March 2, 2000, plaintiff was denied access to his wheelchair while in his DSU cell. He also did not have access to his TENS unit, and was not provided with an egg crate mattress or a hospital bed.
During the rest of his stay in the DSU, and then during his stay in the Intensive Management Unit (IMU) from May 27, 2000, to January 5, 2001, he was allowed use of his wheelchair in his cell.
Other relevant facts are noted and discussed below in the context of the specific claims.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing 'the absence of a material and triable issue of fact,' 'the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'"Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
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 his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
I. Eleventh Amendment
Defendants first argue that the Eleventh Amendment bars all claims against the defendants acting in their various official capacities. I agree with defendants that in this case, to the extent the claims against defendants are brought against them in their official capacities, they should be dismissed. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office."); Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002) (a state and its officials sued in their official capacity are not considered "persons" within the meaning of section 1983, due to the sovereign immunity generally afforded states by the Eleventh Amendment).
Although section 1983 claims for injunctive relief may still proceed against state officials in their official capacities,Hason v. Medical Board of California, 279 F.3d 1167, 1171 (9th Cir. 2002) (long-established exception to Eleventh Amendment immunity carved out by Ex Parte Young, 209 U.S. 123 (1908) provides that the Eleventh Amendment does not bar suits for prospective injunctive relief brought against state officers "in their official capacities, to enjoin an alleged ongoing violation of federal law"), plaintiff's Second Amended Complaint is devoid of any request for injunctive or declaratory relief. Thus, his claims against defendants in their official capacities, should be dismissed.
II. Supervisors
Defendants next contend that plaintiff's claims against all supervisory employees must fail. Liability under section 1983 arises only upon a showing of personal participation by the defendant in the alleged constitutional deprivation. Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is liable for the constitutional violations of his or her subordinates only if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. Taylor, 880 F.2d at 1045. There is norespondeat superior liability under section 1983. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691-94 (1978); Taylor, 880 F.2d at 1045.
Defendants argue that plaintiff produces no evidence that the following supervisory employees personally participated in, or knew of, any infringement of plaintiff's rights: Lampert, Dr. Stoune, Dr. Mulgrew, Heath, Ryals, Barfield, Klika, Hodge, Blankenbaker, Bell, Joslyn, Tilman, Lange, Bolton, and Aly. Defendants contend that plaintiff names these defendants solely because of their respective capacities as supervisors.
I agree with defendants except as to Dr. Stoune and Blankenbaker. Dr. Stoune indicates that he made the decision not to order the egg crate mattress recommended by Dr. Mulgrew because he did not believe it was medically necessary in light of having already allowed an extra mattress and an extra pillow. Stoune Affid. at ¶ 50. This shows Dr. Stoune's personal participation in some of the actions at issue.
As for Blankenbaker, the record shows that he initially determined that plaintiff could not have his wheelchair in the DSU cell. Attchmt 5 to Klika Affid. at p. 2. Thus, the record shows his personal participation in an action at issue. Accordingly, I recommend dismissal of the claims against Lampert, Dr. Mulgrew, Heath, Ryals, Barfield, Klika, Hodge, Bell, Joslyn, Tilman, Lange, Bolton, and Aly.
III. Qualified Immunity Standards
"The threshold inquiry in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation." Wilkins v. City of Oakland, 350 F.3d 949, 953 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (noting that threshold question in qualified immunity analysis is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?")).
If no constitutional violation is shown, the inquiry ends. Saucier, 533 U.S. at 201. If, however, the allegations demonstrate a constitutional violation, the next question is whether the constitutional right was "clearly established," and if so, would it have been clear to a reasonable official that his or her conduct was unlawful. Doe v. Lebbos, 348 F.3d 820, 826 (9th Cir. 2003).
The second inquiry "must be undertaken in light of the case's specific context, not as a broad general proposition." Saucier, 533 U.S. at 201. However, to "determine that the law was clearly established, [the court] need not look to a case with identical or even 'materially similar' facts." Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), petition for cert. filed, No. 03-10099 (U.S. Feb. 17, 2004); "Rather, the standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that his conduct deprived a victim of his rights, he is not entitled to qualified immunity." Id. (internal quotation and brackets omitted); see also Hope v. Pelzer, 536 U.S. 730, 739-41 (2002) (rejecting Eleventh Circuit's standard of requiring facts of previous cases to be "materially similar" to the case at hand to put a reasonable official on notice regarding the law and affirming that officials can be on notice that their conduct violates established law even in novel factual circumstances; "salient question is whether the law . . . gave [officials] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.").
IV. Plaintiff's Deliberate Indifference Claim
A. Eighth Amendment Standards
To prevail on a claim of the denial of adequate medical care, plaintiff must prove that defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Plaintiff must show that he was confined "under conditions posing a risk of objectively, sufficiently serious harm and that the officials had a sufficiently culpable state of mind in denying the proper medical care." Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (internal quotations omitted).
Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment. Lopez, 203 F.3d at 1131. Deliberate indifference is evidenced only when the official knows of and disregards an excessive risk to inmate health or safety.Clement, 298 F.3d at 904. "[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." Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (internal quotation omitted).
Additionally, mere negligence is insufficient for liability.Clement, 289 F.3d at 904. Rather, the prisoner must show that the course of treatment undertaken, or a lack of treatment, was medically unacceptable under the circumstances, and that the defendants chose this course in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). A difference of opinion does not establish deliberate indifference. Id.
B. Discussion
Plaintiff's Eighth Amendment claim is based on the failure of defendants to provide him with his wheelchair while in his DSU cell, his TENS unit, extra underwear, an egg crate mattress, and a hospital bed. Sec. Am. Compl. at ¶¶ 41, 42, 81. He further contends that he failed to receive a shower for twenty days.Id. at 51. He also contends that his medications were stopped on November 1, 2000. Id. at ¶ 62.
1. Wheelchair
At the time he was transferred to the DSU, plaintiff was authorized to have his own wheelchair. Pltf's Exhs 13, 20 in Sup. of Pltf's Mtn for Sum. Jdgmt. It is undisputed that plaintiff was without his wheelchair from January 27, 2000, when he was transferred to the DSU, to March 2, 2000. Records show that upon his transfer to the DSU, Blankenbaker initially ordered plaintiff not to have his wheelchair in his cell until further notice. Attchmt 5 to Klika Affid. at p. 2. "DSU Medical" then reported that plaintiff was allowed access to his wheelchair only when outside of his cell. Id.
Klika states that the decision to deny plaintiff his wheelchair in his cell was made by security staff only after consulting with the DSU medical staff about plaintiff's ability to manage within the cell without his wheelchair. Klika Affid. at ¶ 12. The decision was based on safety and security issues as a result of plaintiff having hid the weapon for which he had been disciplined, in his wheelchair. Id.; see also Klika Affid. at ¶ 14 (because Health Services verified that with the mobility assist devices within the cell (handrails, lowered sink, lowered toilet), there was no medical reason for plaintiff to have his wheelchair to move about the cell, and because plaintiff was serving a sanction in the DSU for making inappropriate use of his wheelchair to hide a potentially dangerous weapon, his wheelchair was not authorized for use in the cell).
Plaintiff alleges that as a result of being deprived of his wheelchair in his cell, he was forced to crawl from his bunk to the toilet in the cell, and that he could not make his bed, clean his cell, or get water from the sink in his cell. In support of these allegations, plaintiff relies on his own unsworn statements as well as a declaration of fellow inmate Ronald Clarke and an affidavit of fellow inmate Jason Corey. Defendants argue that Clarke's and Corey's statements are inherently unreliable because given the position of plaintiff's cell in relation to Clarke's and Corey's cells, they could not have possibly witnessed plaintiff's movements in his cell. Determining the veracity of their statements is inappropriate on summary judgment and for the purposes of resolving the motions before me, I assume that their statements are true.
Plaintiff's allegations in their current form are inadmissible because they are not contained in a sworn declaration or affidavit. While the trial court can consider only admissible evidence in ruling on a summary judgment, Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002), the court, at the summary judgment stage, does not focus on the admissibility of the evidence's form, but rather on the admissibility of its contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003), cert. denied, 124 S.Ct. 1663 (2004). If it can be presented in admissible form in trial, the court may consider it at the summary judgment stage. Id. Thus, because plaintiff could testify under oath at trial regarding his personal knowledge of what he could or could not do in his cell without a wheelchair and how the lack of a wheelchair in the cell affected him, I have considered his unsworn statements at this point.
The DSU cell in which plaintiff was housed was a handicapped cell outfitted with hand rails, and a lowered sink and toilet. Klika Affid. at ¶ 9. The bunk, sink, and toilet are in close proximity to each other so that theoretically, an inmate can move himself from one place to another by using the hand rails and the bunk and table for support. Id. There are no records of any report made by plaintiff himself directly to any DSU security or correctional staff that plaintiff could not move around his DSU cell without his wheelchair. Id. at ¶ 29, 30. And, according to Dr. Stoune, there is no medical reason why plaintiff needed his wheelchair in the DSU cell. Stoune Affid. at ¶ 15.
Nonetheless, plaintiff's attorney wrote a February 17, 2000 letter to VanValkenberg complaining about the denial of plaintiff's wheelchair. Pltf's Exh. 18 in Sup. of Pltf's Mtn for Sum. Jdgmt. She indicated that the denial meant that to use the toilet, plaintiff had to lower his body to the floor, crawl to the toilet, and heave his body to a sitting position "which is very difficult." Id. She noted that without his wheelchair, he could not use his sink so he had been unable to wash his hands, brush his teeth, and get a drink of water. Id. He also could not make his bed. Id.
In response to the letter, VanValkenberg requested that the DSU staff monitor plaintiff's in-cell movements. Pltf's Exhs. 21, 22, 24 in Sup. of Pltf's Mtn for Sum. Jdgmt. Apparently, the staff kept a log of plaintiff's movements for a few days in mid-February 2000. Pltf's Exh. 25 in Sup. of Pltf's Mtn for Sum. Jdgmt. It appears that much of the time, staff observed plaintiff sitting or sleeping on his bunk. Id. He was able to reach his table from his bunk. Id. He was observed on the toilet, but there are no notes that he was actually observed moving to the toilet. Id. He was observed transferring from his wheelchair to a plastic chair in the shower, and from his wheelchair to his bunk upon return from the shower. Id. This evidence does nothing to reveal, one way or the other, whether plaintiff had to drag himself about his cell, nor whether he could use his sink if he got there.
I have examined the record carefully. I find no evidence contradicting plaintiff's statements and those of his fellow inmates that he had to crawl to the toilet and that he could not get water from the sink. The record has many references to problems with plaintiff's legs and feet. E.g., Attchmt 2 to Stoune Affid. at p. 1 (upon admission to prison in 1996 he reported that he had been unable to walk for approximately three years due to an injury received in 1985); 71 (February 2000 report to medical staff that he has no use of left leg and only 30-35% use of right leg); 69-70 (February 2000 report to medical staff that he had previously diagnosed as non-ambulatory with 35% feeling and use of his right leg and numbness in his left leg with sciatic pain; complaint of right leg pain); 61 (during June 2000 examination by Dr. Stoune, plaintiff indicated he could not move either of his legs but Dr. Stoune observed him moving his left leg); 53-54 (October 2000 swelling of right foot and ankle).
However, none of the medical records indicate that plaintiff could bear his own weight on his legs for any period of time. Even Dr. Stoune's June 2000 observation of plaintiff moving his left leg, apparently while on the exam table, fails to indicate whether plaintiff could or could not bear weight on that leg. Thus, plaintiff's statements and those of his fellow inmates, along with the medical records, create a question of fact as to whether plaintiff's legs can actually bear his weight. Without that ability, he would be effectively precluded from using his sink.
"[T]he failure to provide a wheelchair for an inmate may constitute deliberate indifference to a serious medical need in some circumstances." Shakka v. Smith, 71 F.3d 162, 167 (4th Cir. 1995); see also Lavender v. Lampert, 242 F. Supp.2d 821, 849 (D. Or. 2002) (indicating that to unnecessarily deny a wheelchair to someone with an obvious injury and who lacks mobility without it, would constitute deliberate indifference to a serious medical need).
However, whether a constitutional injury is alleged depends on the facts of each case. E.g., Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1995) (no Eighth Amendment claim when inmate denied wheelchair because it did not fit through the cell doors); Weeks v. Chaboudy, 984 F.2d 185, 187-88 (6th Cir. 1993) (prison medical director's refusal to admit inmate to infirmary, which was only area of prison which could accommodate inmate's wheelchair, allegedly causing inmate to be unable to care for his person or clean his cell as a result of wheelchair deprivation, stated constitutional violation when consequences of refusal was clearly foreseeable to medical director); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980) (allegations that prison officials refused to give bedridden inmate help to properly clean his person and that deprivation of wheelchair forced inmate to crawl on the floor stated constitutional violation); Schmidt v. Odell, 64 F. Supp.2d 1014, 1029 (D. Kan. 1999) (defendants' failure to provide wheelchair, standing alone, insufficient to state Eighth Amendment claim when evidence was uncontroverted that the particular jail could not accommodate wheelchairs and there were legitimate security concerns about placing a wheelchair among the jail's general population; however, issues of fact remained as to whether jail officials were deliberately indifferent to basic needs of inmate to use the toilet, to shower, to obtain his meals, and to obtain suitable recreation).
Taking plaintiff's allegations as true and construing all inferences in plaintiff's favor, I conclude that plaintiff has stated a constitutional claim against the DSU medical staff. First, as noted above, when the failure to treat a prisoner's condition (and in this case that may be logically stated as the failure to treat his immobility by providing a wheelchair for his in-cell use), could result in significant injury or the unnecessary and wanton infliction of pain, the "serious medical needs" prong of the Eighth Amendment inquiry is met. Here, plaintiff contends that he had to crawl on the floor to reach the toilet or the sink. Because it appears on this record that he had to support himself with his arms once he reached the sink, he could not access the water to use for washing his hands, brushing his teeth, drinking, or bathing. He was unable to clean his cell.
It is important to note that during much of the thirtyfive days without his wheelchair in his cell, plaintiff contends he was deprived of the opportunity to shower. See discussion below.
Although plaintiff used a wheelchair, the records' repeated references to his complaints of lower back and extremity pain show that he still maintained some sensation in those areas of his body. Without knowing more of the etiology of his condition, it is a reasonable inference that dragging his body on the floor for thirty-five days could result in further significant injury, or increased pain. The potentially serious adverse health effects of not brushing one's teeth and not bathing or getting enough to drink are obvious. Thus, plaintiff shows that depriving him of his wheelchair from January 27, 2000, to March 2, 2000, could create the risk for significant injury or the unnecessary and wanton infliction of pain, not to mention the embarrassment and humiliation brought on by having to crawl about the floor of his cell. See also Hope, 536 U.S. at 738 (noting that handcuffing inmate to hitching post for seven hours in hot sun without sufficient water or toilet access created a "particular risk of discomfort and humiliation" and violated "the basic concept underlying the Eighth Amendment, which is nothing less than the dignity of man.") (internal quotation and brackets omitted).
Second, as to the "deliberate indifference" prong of the Eighth Amendment inquiry, I conclude that the evidence does not sustain the allegations against the correctional and security staff, but it is sufficient as to the DSU medical staff. The undisputed evidence shows that the decision to take away plaintiff's wheelchair in the cell was prompted by security concerns, but was done only after approval from the DSU medical staff. Cases recognize that correctional officers acting pursuant to orders from medical staff do not exhibit the requisite deliberate indifference to serious medical needs. See Shakka, 71 F.3d at 167 (no reasonable jury could conclude that correctional officers who failed to return wheelchair after prison psychologist had ordered it removed, exhibited deliberate indifference). In fact, in this case, the record indicates that the security and correctional staff inquired of medical staff regarding the deprivation of the wheelchair in the cell, thus negating any suggestion of deliberate indifference.
Here, the correctional and security staff initially had security concerns regarding the wheelchair given that plaintiff had used his wheelchair to hide a weapon. They then obtained authorization from the medical staff to remove his wheelchair. Additionally, as noted above, there is no record of plaintiff directly complaining to the DSU correctional or security staff about his inability to move around the cell. Furthermore, their personal observations, while not confirming that plaintiff had unfettered use of his cell, were not inconsistent with the previously obtained medical staff approval or the lack of direct complaints from plaintiff. Given that the correctional and security staff were acting under medical staff direction and were not independently made aware of any in-cell mobility issues either from plaintiff or by observation, the record fails to sustain plaintiff's allegations that the correctional or security staff were deliberately indifferent to his serious medical needs.
As to the medical staff, as noted above, the deprivation of plaintiff's wheelchair in his cell created a risk of serious injury and/or continued pain. A court may infer the existence of the requisite subjective state of mind from the fact that the risk of harm is obvious. Hope, 536 U.S. at 738; Weeks, 984 F.2d at 187 (lack of actual knowledge unavailing when consequences of wheelchair deprivation were clearly foreseeable to medical director). Common sense compels a conclusion that trained medical personnel could not fail to recognize the potential risks to plaintiff of being deprived of his wheelchair in his cell for thirty-five days. Thus, I conclude that plaintiff has stated a constitutional claim against the "DSU medical staff" in regard to his wheelchair deprivation claim.
Because I have found, assuming the truth of plaintiff's allegations presented in these motions, that plaintiff states a constitutional violation, I must consider the next part of the qualified immunity analysis. Certainly, in a general sense, defendants should have been aware, at the time plaintiff was transferred to the DSU in January 2000, of the legal standards for an Eighth Amendment claim for deliberate indifference to a serious medical need. E.g., Whitley v. Albers, 475 U.S. 312, 319 (1986) (noting that the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (indicating that inadequate prison medical care violated the Eighth Amendment when it constituted deliberate indifference to serious medical needs of prisoners); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (stating Eighth Amendment standards for prison inmate medical claims), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Of course, qualified immunity is not precluded simply by pointing to the clearly established general propositions of law. Rather, as indicated above, the case's particular context is relevant, although previous cases with identical, materially similar, or even substantially similar, facts are not required.
I conclude that plaintiff's constitutional right to have his wheelchair in his cell under the alleged facts of this case was a clearly established right and that it would have been clear to a reasonable official that the deprivation of the wheelchair was unconstitutional. By the time the conduct in this case occurred, it was firmly established that wheelchair-bound inmates were, under certain circumstances, constitutionally entitled to their wheelchairs, when such wheelchairs could fit into the cell.E.g., Crowder, 74 F.3d at 815; Weeks, 984 F.2d at 187-88;Cummings, 628 F.2d at 1068. It was also clear before January 2000, that basic personal hygiene is a constitutional right.Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (Eighth Amendment guarantees personal hygiene).
Thus, under the alleged facts of this case, which include the deprivation reducing plaintiff to crawling on the floor to reach the toilet and the sink and effectively precluding plaintiff's ability to utilize his sink for basic health and hygiene needs, the law was clearly established that plaintiff had a constitutional right to his wheelchair in his cell and defendants, based on the previous caselaw, had fair warning that their conduct deprived him of his rights.
In summary, on plaintiff's wheelchair claim, I recommend that defendant's motion for summary judgment be denied because construing the facts in plaintiff's favor and taking the reasonable inferences from those facts, plaintiff has established a constitutional violation and the "DSU Medical" defendants are not entitled to qualified immunity. I also recommend that plaintiff's motion for summary judgment be denied because at this point, plaintiff's allegations about the effects of the in-cell wheelchair deprivation are based on his unsworn statements and the testimony from Clarke and Corey, about which defendants have raised legitimate questions of reliability. Likewise, the unsworn nature of plaintiff's statements, and the obvious bias issue to be considered by the finder of fact, preclude summary judgment in plaintiff's favor.
2. TENS Unit
As noted above, the ODOC Health Status Reports show that plaintiff was authorized to have a TENS unit during the time he was in segregated housing. Pltf's Exhs. 13, 20 in Sup. of Pltf's Mtn for Sum. Jdgmt. When inmates are confined to the DSU, however, their rights to personal property are curtailed. Or. Admin. R. 291-011-0050. Klika explains that without a determination from medical staff that the TENS unit is medically necessary, a TENS unit is not an authorized property item in the DSU and is therefore stored in the inmate's personal property until the inmate is released from the DSU. Klika Affid. at ¶ 21. Accordingly, plaintiff's TENS unit was kept with his personal property upon his transfer to the DSU in January 2000.
Without further elaboration as to the significance of the ODOC Health Status Reports, and construing all inferences in plaintiff's favor which I must do in the first prong of the qualified immunity analysis and on summary judgment, I interpret the Reports as providing the medical necessity for the items it notes that plaintiff may have or receive. Accordingly, the record creates an inference that the TENS unit which plaintiff was authorized to have during his time in the DSU, was medically necessary. Thus, it should not have been taken from him upon his transfer to the DSU.
Additionally, the fact that plaintiff has a TENS unit in addition to being prescribed various medications for pain, indicates that medication does not completely alleviate his pain. While plaintiff is not entitled to his preferred choice of treatment, Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (the fact that the prisoner might prefer a different treatment does not give rise to an Eighth amendment violation), when the treatment he was denied (the TENS unit), provides something in addition to the pain medication he ordinarily takes, it is not a situation of alternatives or preferences. The inference from the record is that the TENS unit is required as an additional treatment for chronic pain. As such, depriving plaintiff of the use of his TENS unit when it was determined by ODOC to be medically necessary and authorized and when its purpose is to alleviate chronic pain that is not completely responsive to pain medication, could result in the unnecessary and wanton infliction of pain.
Defendants contend that because plaintiff made no affirmative requests for his TENS unit during his time in the DSU, there is no evidence of their deliberate indifference to his serious medical needs. They further contend that plaintiff did not request his TENS unit until September 1, 2000, when he was housed in the IMU. Defendants suggest that he received the unit after that time when he requested it from the IMU property officer via written inmate communication.
Plaintiff relies on a December 2000 affidavit he submitted in a state court habeas corpus case where he states that he received no battery for his TENS unit even after requesting the unit in September 2000. Pltf's Exh. 44 in Sup. of Pltf's Mtn for Sum. Jdgmt. He further alleges that he suffered from pain, headaches, loss of sleep, and mental anguish. Id. Thus, at least as to the period after September 2000, there is a factual dispute about whether plaintiff actually received the TENS unit or a battery for it after he expressly requested it. Assuming he did not receive the TENS unit or the battery after his request, this is enough to show defendants' deliberate indifference to his serious medical needs.
In any event, plaintiff's lack of express request is not controlling on the deliberate indifference issue. As with the wheelchair claim, because the record creates an inference that the TENS unit was required for the management of plaintiff's chronic pain, the risk of harm of depriving plaintiff of that pain relief is obvious. With obvious risk of harm, the existence of a deliberately indifferent state of mind may be inferred. It is appropriate to do so here on this record for the purposes of summary judgment.
Having found that the allegations support a constitutional violation, I now must analyze the second prong of the qualified immunity analysis. As with the wheelchair claim, the question is not whether a general right to be free from cruel and unusual punishment was clearly established in 2000, but more specifically, was it clearly established that depriving an inmate of a particular method of pain control which provides relief above and beyond that achieved with pain medication and which in its absence leaves the inmate in unnecessary pain, was clearly established? I conclude that such a right was clearly established and that defendants should have known that depriving plaintiff of his TENS unit violated his constitutional rights.
Many cases establish that the infliction of wanton and unnecessary pain violates the Eighth Amendment. E.g., Whitley, 475 U.S. at 319. Cases also firmly establish this standard as governing the provision of medical care to inmates.E.g., Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (unconstitutional treatment of inmate's medical condition occurs when the condition, left untreated, could result in the unreasonable and wanton infliction of pain). Given this clearly established law, no reasonable officer could conclude that withholding a particular pain treatment device, deemed medically necessary by prison staff, because personal property was not allowed in the DSU, was constitutional. Defendants had fair warning that their conduct violated plaintiff's constitutional rights.
I recommend that defendant's motion for summary judgment be denied as to the TENS unit claim because construing the facts in plaintiff's favor and taking reasonable inferences from those facts, plaintiff has established a constitutional violation and defendants are not entitled to qualified immunity. However, for the reasons articulated above in connection with plaintiff's wheelchair claim, I recommend that plaintiff's motion be denied as to this claim because there are conflicting issues of fact as to when plaintiff actually received the TENS unit and because to the extent plaintiff's allegations are contained in unsworn statements, they are capable of creating an issue of fact, but are not an appropriate basis upon which to grant plaintiff judgment in his favor. Furthermore, as indicated above, the finder of fact must evaluate the inherent bias contained in plaintiff's unsworn statements.
3. Extra Underwear, Egg Crate Mattress, Hospital Bed
a. Extra Underwear
Various ODOC Health Status Reports indicate that plaintiff was entitled to extra underwear. Pltf's Exhs. 13, 20 in Sup. of Pltf's Mtn for Sum. Jdgmt. The record does not reveal why plaintiff required the extra underwear. Nonetheless, his entitlement to it is clearly documented in the record. Plaintiff alleges that he did not receive extra underwear while in segregation.
The record shows that no physician order is required for regular changes of clean underwear. Stoune Affid. at ¶ 7. Generally, DSU inmates are issued clean underwear every other day in conjunction with a shower. Klika Affid. at ¶ 22. If the inmate does not shower for whatever reason, he can still request clean underwear before the next regular clothing exchange. Id. Nothing in the record suggests that plaintiff was denied regular changes of underwear.
Dr. Stoune explains that notwithstanding the entitlement to extra underwear contained in the ODOC Health Status Reports, plaintiff had no serious medical need for extra underwear. Stoune Affid. at ¶ 7. If a DSU inmate's underwear becomes soiled, security staff will issue a clean pair upon the inmate's request. Klika Affid. at ¶ 23.
Plaintiff offers no evidence to indicate that he suffered any harm whatsoever, much less any serious harm, from the lack of extra underwear. He fails to assert that it caused him pain, injury, or contributed to a worsening of any underlying illness or disease. Furthermore, he brings forth no evidence to show that any defendant was deliberately indifferent in failing to provide him with extra underwear. Accordingly, he fails to assert facts showing a constitutional violation.
b. Egg Crate Mattress/Hospital Bed
The ODOC Health Status Reports indicate that plaintiff was approved for an egg crate mattress and a hospital bed during the time he was in the DSU and the IMU. E.g., Pltf's Exhs 13, 20, 32B in Sup. of Pltf's Mtn for Sum. Jdgmt. Additionally, Dr. Mulgrew, a neurologist whom plaintiff saw in March 2000, recommended that plaintiff have an egg crate mattress. Pltf's Exh. 30 in Sup. of Pltf's Mtn for Sum Jdgmt. And, in June 2000, Dr. Hartwig ordered plaintiff to have an egg crate or double mattress. Pltf's Exh. 49 in Sup. of Pltf's Mtn for Sum Jdgmt.
Despite the Health Status Reports and Dr. Mulgrew's recommendation, Dr. Stoune states that an egg crate mattress or hospital bed was not medically necessary given that plaintiff received an extra mattress and pillow while in segregation. Stoune Affid. at ¶¶ 6, 33, 50; see also Klika Affid. at ¶ 24 (plaintiff not authorized to have egg crate mattress or hospital bed in DSU cell, but was issued extra mattress for his bunk). Notably, the issuance of a second mattress conforms to Dr. Hartwig's orders that plaintiff receive either an egg crate or a double mattress.
The record suggests that plaintiff requires the egg crate mattress to relieve pressure sores. In a March 13, 2000 letter from plaintiff's attorney to VanValkenberg regarding plaintiff's care in the DSU, the attorney noted that plaintiff needed the egg crate to prevent bed sores. Pltf's Exh. 28A in Sup. of Pltf's Mtn. for Sum. Jdgmt. She explained that at that point, plaintiff had not yet developed sores, but she understood that he was experiencing sore skin and irritation at pressure points. Id. She allowed that while it may not be possible to provide a hospital bed in the DSU, it should be possible to provide him with an egg crate mattress. Id.
In February 2000, during his stay in the DSU, plaintiff requested a hospital bed which he indicated was required to alleviate pressure on his lower back. Attchmt 2 to Stoune Affid. at p. 70. He also stated that he was getting scoliosis from the absence of the hospital bed. Id. Physician's Assistant Walker performed a complete physical examination and determined that a hospital bed was not medically necessary. Id. at p. 68.
On May 17, 2000, plaintiff reported to sick call complaining that he was getting pressure sores. Id. at p. 62. The nurse's examination revealed no visible pressure sores. Id. She noted that his skin was intact and that his buttock skin tissue appeared pink with no discoloration. Id. The pink color indicates that the skin was well-oxygenated. Stoune Affid. at ¶ 54. The nurse advised plaintiff to change positions frequently to prevent pressure sores, to be up in his wheelchair for greater periods of time, and to exercise as he could tolerate. Attchmt 2 to Stoune Affid. at p. 62. He was scheduled to be examined by a provider and told to report to sick call if he had an increase in pain or change in the condition of his skin. Id. The medical records from the time period when he was in the DSU and the IMU reveal no further complaints or concerns from plaintiff regarding bed sores.
Plaintiff offers no evidence to dispute Dr. Stoune's and Dr. Hartwig's opinions that a second mattress satisfies plaintiff's need for an egg crate mattress. He also offers no evidence to dispute Physician Assistant Walker's opinion that a hospital bed was not medically necessary. As noted above, a difference of opinion among medical professionals does not amount to an Eighth Amendment claim. Jackson, 90 F.3d at 332. Additionally, medical negligence also does not establish an Eighth Amendment claim.Clement, 289 F.3d at 904. Because plaintiff's allegations that he was unconstitutionally deprived of an egg crate mattress or a hospital bed amount to no more than a difference of opinion or negligence, he fails to establish a violation of his constitutional rights.
In his response materials, plaintiff suggests that contrary to the other evidence in the record that shows he received an extra mattress and pillow upon admission to the DSU in late January 2000, he was not provided with an extra mattress until after Dr. Hartwig's June 2000 order. Pltf's Resp. to Stoune's Affid. at ¶ 65(c). Even assuming the truth of this allegation, it does not change the outcome of his claim. At best, plaintiff's allegations demonstrate that Dr. Stoune's determination that an egg crate mattress was medically unnecessary was negligent which does not sustain an Eighth Amendment claim.
Additionally, there is no allegation to support the subjective deliberate indifference standard. Plaintiff fails to show that any of the defendants were on notice that plaintiff faced a serious injury or a substantial risk of unnecessary pain with no egg crate mattress or hospital bed. There is nothing in the record alleging that defendants were aware of any bed sores that were attributable to the lack of an egg crate mattress or hospital bed and nonetheless failed to provide the special mattress or bed. As such, plaintiff fails to raise facts showing that defendants were deliberately indifferent to his serious medical needs.
4. Shower
In his Second Amended Complaint, plaintiff contends that the DSU correctional officers refused to allow him to shower for twenty days. Sec. Am. Compl. at ¶ 51. He contends that he was required to take a shower that did not have a mechanism to support his weight. Id. at ¶ 52. He states that the bench in the shower broke when he used it, causing him injuries and necessitating a trip to the hospital for x-rays. Id. at ¶ 53, 54.
In his Concise Statement of Material Fact in support of his motion, he repeats these allegations, including that he was denied the ability to shower because the shower in the DSU was inadequate for his needs. Pltf's Concise Stmt at ¶ 16. He also submits the declarations of two other inmates who attest to plaintiff being unable to shower upon his admission to the DSU because defendants did not have a shower that would accommodate his need to sit and his weight and because after the one incident in which plaintiff attempted to shower and the bench broke, it took defendant almost ten more days to provide a plastic chair for plaintiff to use while showering. Pltf's Exh. 14 (Ronald Clarke Declr.); Pltf's Exh. 15 (Jason Corey Affid).
Based on all of the allegations, I construe plaintiff's claim as having three parts: (1) being denied the right to shower from January 29, 2000, until February 7, 2000, because the DSU shower bench was incapable of supporting his weight; (2) being denied the right to shower beginning February 7, 2000, for approximately ten days because the DSU shower bench was broken and defendants failed to provide a substitute shower chair; and (3) being injured as a result of the DSU shower bench breaking while he was using it on February 7, 2000.
SRCI keeps a log of activities for DSU inmates. Attchmt 5 to Klika Affid. Other than plaintiff's injury in the shower on February 7, 2000, the log cards for plaintiff's DSU stay give no indication, one way or the other, as to plaintiff's shower activity. Id.
Klika states that DSU inmates are given the opportunity to shower every other day. Klika Affid. at ¶ 37. An inmate may refuse a shower by expressly declining the offer to shower or simply by being nonresponsive to the offer. Id. at ¶ 41. Showers are denied only if an inmate is being disruptive and moving him from his cell to the shower could be considered a safety and security risk. Id. at ¶ 44. There is no record that plaintiff was refused a shower for this reason and plaintiff does not allege otherwise. Id.
Roger Gilbertson, the Acting Physical Plant Manager at SRCI, states that at the time plaintiff was in the DSU, the handicapped shower in the DSU unit contained a "Security Recessed Seat Model SA65." Gilbertson Affid. at ¶ 6; Attchmts 3, 4 to Gilbertson Affid. The seat opens from the wall and supports up to 750 pounds. Id. On February 7, 2000, while plaintiff was using the seat, it began to bend slowly downward causing plaintiff to slide off the seat to the floor, a distance of approximately eight inches.Id. at ¶ 5; Attchmt 2 to Gilbertson Affid. Gilbertson examined the seat after the incident and discovered a previously undetected defective hinge. Id. at ¶ 8. A shower chair was made available for handicapped inmates while the seat was repaired.Id. at ¶ 10.
As to the first part of plaintiff's claim involving the denial of a shower from January 29, 2000, to February 7, 2000, plaintiff fails to show a violation of his constitutional rights. There is no dispute in the record that the shower seat installed in the DSU shower was capable of holding up to 750 pounds. There is no dispute in the record that plaintiff actually weighed less than that. The undisputed evidence shows that the shower seat was capable of supporting plaintiff's weight. Plaintiff's subjective belief to the contrary, and his refusal to shower based on that subjective belief, does not create an issue of fact. E.g., Mills v. First Fed. Sav. Loan Ass'n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996) (subjective belief does not create an issue of fact unless supported by evidence beyond the conclusory belief).
While the qualified immunity cases indicate that the first inquiry as to whether a constitutional right has been violated is based on a review of the facts alleged taken in the light most favorable to plaintiff, this does not mean that the court's analysis of a qualified immunity defense in the context of a summary judgment motion is limited to the allegations in the complaint or those put forth only by the plaintiff. See Saucier, 533 U.S. at 201 (referring to a review, in the first sequential step, of the "parties' submissions").
Rather, the inquiry is whether upon review of the evidence in the record, there is a disputed issue of fact. If so, Saucier requires that the court conduct the first prong of the qualified immunity analysis assuming the truth of the facts as alleged by the plaintiff and in a light most favorable to the plaintiff.E.g., Orin v. Barclay, 272 F.3d 1207, 1216 (9th Cir. 2001) (because a particular fact was unclear from the record, the court assumed the facts in a light favorable to the plaintiff in the first step of the qualified immunity inquiry), cert. denied, 536 U.S. 958 (2002); Veney v. Ojeda, No. 1:03 CV 1410, 2004 WL 1368351, at *8 (E.D. Va. June 5, 2004) (when there is a conflict in the evidence, Saucier teaches that the qualified immunity analysis proceeds by determining whether the facts alleged by plaintiff, taken in the light most favorable to plaintiff, establish a constitutional violation). If, however, the record reveals only undisputed facts and those facts do not support a constitutional violation, the inquiry ends.
Finally, it bears mentioning that the fact that the seat hinge broke is not evidence in support of plaintiff's asserted belief that the shower seat was incapable of supporting his weight. There is no dispute in the record that the shower seat was designed to accommodate persons of plaintiff's weight and greater, and that the seat failed because of a defective hinge. Defendants are entitled to summary judgment on the first part of plaintiff's shower claim.
As to the second part of plaintiff's claim concerning the continued denial of a shower for approximately ten days beginning February 7, 2000, there is a conflict in the evidence. Plaintiff contends that defendants failed to provide a substitute shower chair. Defendants imply that a shower chair was made available promptly after the regular bench seat broke.
Nonetheless, even assuming the truth of the facts alleged by plaintiff, he fails to establish a constitutional violation. Denial of a shower for ten days is not, without more, objectively, a condition that poses a risk of sufficiently serious harm.
The alleged denial of adequate hygiene over an extended period of time can state an objective serious deprivation for the purposes of the Eighth Amendment in certain circumstances.E.g., Bradley v. Puckett, 157 F.3d 1022, 1026 (5th Cir. 1998) (denial of disabled prisoner proper facilities to shower for over two months stated claim for cruel and unusual punishment); Clayton v. Morris, No. 90 C 2718, 1994 WL 118186, *6 (N.D. Ill. Mar. 28, 1994) ("The denial of shower privileges over a prolonged period may be actionable if the inmate can allege a specific physical harm that results."), aff'd, 70 F.3d 1274 (7th Cir. 1995).
Here, plaintiff's alleged deprivation was for the relatively short period of approximately ten days, see Hutto v. Finley, 437 U.S. 678, 686-87 (1978) (conditions of confinement which may violate the Eighth Amendment if persisting for weeks or months, may not constitute a violation if they exist for few days), and he fails to allege a particular physical harm he suffered as a result of the lack of a shower for that period. Thus, he fails to allege facts supporting a constitutional violation.
Finally, as to the third part of plaintiff's claim regarding the injuries he suffered from the shower bench breaking on February 7, 2000, no evidence supports a determination, or even creates an inference, of a condition creating a risk of objectively serious harm or of defendants' deliberate indifference. First, other than the fact that the bench hinge broke and that plaintiff suffered minor injuries such as a cut and bruises, there is nothing in the record to suggest that the bench was somehow inappropriate for its intended use. The undisputed evidence demonstrates otherwise. Gilbertson Affid. at ¶ 6; Attchmts 3, 4 to Gilbertson Affid. Thus, there is no evidence that defendants maintained a condition capable of producing serious harm to plaintiff.
Second, there is no suggestion that anything other than a defective hinge caused the seat to fail. There is no evidence that any act of defendants, or any failure to act, created the defect. And, there is no evidence that defendants knew of the defective hinge before this incident. Thus, there is no evidence of deliberate indifference. Accordingly, plaintiff fails to establish that the allegations support a constitutional violation.
5. Medications
Plaintiff asserts that changes made in his medications on November 1, 2000, constitute an Eighth Amendment violation. See Sec. Am. Compl. at ¶ 62; Pltf's Exh. 44 in Sup. of Pltf's Mtn. for Sum. Jdgmt (affidavit submitted in state habeas corpus case attests to stopping of medication resulting in exacerbation of pain).
In the fall of 2000, plaintiff was taking several medications for different ailments, including Dimetapp, Baclofen, Percogesic, Ketoprofen, Selenium Sulfide, Midrin, Benadryl, and Amitriptyline. On October 24, 2000, the Therapeutic Level of Care (TLC) committee was asked to review all of plaintiff's medications. Stoune Affid. at ¶ 84; Attchmt 2 to Stoune Affid. at p. 144. The review was precipitated by plaintiff throwing his prescription shampoo at an officer. Stoune Affid. at ¶ 84.
On November 1, 2000, the TLC committee determined that many of plaintiff's prescriptions should be discontinued. Id. at ¶ 85. He continued to receive amitriptyline for treatment of depression and Triamterene/HCTZ, a diuretic. Id. He also continued to receive Zantac. Attchmt 2 to Stoune Affid. at p. 123. In February 2001, after he was returned to SRCI's general population, he began to take naprosyn. Id. at p. 119.
Plaintiff's allegation is that by stopping many of his medications, defendants violated the Eighth Amendment. But, without more, plaintiff's allegations demonstrate only that defendants had a different method of managing plaintiff's various ailments than plaintiff would have preferred. Plaintiff's allegations show that defendants either had a difference of opinion with plaintiff or were negligent in their care. As noted above, neither is a basis for establishing an Eighth Amendment violation.
V. Access to Courts Claim
In his Second Amended Complaint, plaintiff makes two specific allegations of interference with his right of access to the courts. First, he contends that defendant "Sergeant eyer" (which I construe to mean defendant Sergeant David Meyers), took his legal materials and failed to return them which denied his access to a pending case in this Court — Civil Number 98-84-FR. Sec. Am. Compl. at ¶ 90. Second, he contends that defendant Officer Watts confiscated 140 documents and destroyed them. Id. at ¶ 91.
In his Concise Statement of Material Fact submitted in support of his motion for summary judgment, plaintiff additionally contends that he was denied the use of the law library while in the DSU. Pltf's Concise Stmt at ¶¶ 18, 46. He also complains that he sent a request to the law library on October 8, 2000, while in the IMU, and that it was not received at the law library until October 20, 2000. Id. at ¶¶ 46, 47; Pltf's Exh. 37. The law library responded to plaintiff's inquiry on October 24, 2000, and plaintiff received that response on October 31, 2000. Id. He also mentions sending 152 pages of documents and evidence to the law library through Watts which never arrived there. Id. at ¶ 46. He contends that these documents and evidence were proof and a part of the opposition to summary judgment in an unnamed case. Id.
Finally, in his opposition to defendants' motion for summary judgment, he again contends that he gave Watts evidence and documents to be taken to the law library for copying and that those documents did not arrive there. Pltf's Mem. in Opp. to Defts' Mtn at p. 10. He also contends that on August 8, 2000, "C/O Sgt. Myer Hoffer and another C/O" took legal documents and documents "in Plaintiff's current action" from his cell. Id. at p. 11. He claims to have "lost" in the litigation because of those actions. Id.; see also Exh. 11A to Pltf's Resp. to Klika's Affid.
The constitutional right of access to the courts requires prison authorities to provide prisoners with "the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis v. Casey, 518 U.S. 343, 356 (1996). The scope of the right is limited, however. Prisoners need only have "the minimal help necessary" to file legal claims.Id. at 360. There is no freestanding right to a law library or to legal assistance. Id. at 351.
A claim of denial of access to the courts must allege an actual injury. Id.; Barren v. Harrington, 152 F.3d 1193, 1195 (9th Cir. 1998). Actual injury means "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim." Casey, 518 U.S. at 348. If the prisoner retains the ability to present his or her arguments to the court, there is no actual injury.
A. General Law Library Access and October 8, 2000 Request
While plaintiff contends that he was denied the use of the law library while in the DSU, he fails to allege any actual injury resulting from that denial. Additionally, the record shows that while DSU inmates do not have physical access to the main SRCI law library themselves, there are other resources available to those inmates. Maureen Rossi Affid. at ¶ 7.
Legal materials are available in the DSU Satellite Law Library. Attchmt 3 to Rossi Affid. DSU inmates may access specific legal research materials in the satellite library through the use of a "Legal Library Service Request" form or through an "Inmate Communication Form" directed to the DSU Law Librarian. Id. Materials are to be provided within three business days and may be kept for a period of one to two weeks, depending on the nature of the material. Id.
DSU inmates may also use inmate legal assistants to provide legal research assistance. Id. This service may be accessed through an "Inmate Communication Form" or via telephone appointments. Id.
DSU inmates are also authorized to speak to inmate legal assistants one time per week, for fifteen minutes. Id. Appointments are scheduled by sending an "Inmate Communication Form" to the DSU Law Librarian. Id.
In addition to these resources, DSU inmates who are indigent are provided photocopy services if they can show that duplication cannot be accomplished through the use of carbon paper or if the court or a procedural rule requires a photocopy. Id. DSU inmates have access to notary services one afternoon per week.Id. DSU inmates may request legal forms and may purchase envelopes for legal mail. Id. If indigent, the business office or the law library will provide appropriate envelopes. Id. DSU inmates may receive legal mail. Id.
Records provided by defendant show that plaintiff requested no telephone call-out appointments while in the DSU. Rossi Affid. at ¶ 27; Attchmt 4 to Rossi Affid. While in the IMU, plaintiff made five such requests; all were granted. Id. Additionally, while in the DSU and the IMU, plaintiff regularly requested, and received, copies of case law, legal reference material, and legal supplies. Id. at ¶ 29; Attchmts 5, 6,7, 8 to Rossi Affid.
The undisputed evidence in the record shows that plaintiff had access to legal resources while in the DSU and the IMU and that he requested and received copies of cases, legal materials, and legal supplies. As noted above, access to a law library is not required to fulfill plaintiff's constitutional right to access the courts.
Additionally, while he contends that he was denied access to the law library, he fails to state how he was injured by this alleged deprivation. This holds true as well for his allegation concerning his October 8, 2000 request to the law library. While it apparently was not received until October 20, he does not explain how he was actually harmed by the delay. Thus, he fails to allege a constitutional violation in regard to these claims.
B. Myers's Actions
Myers is alleged to have taken legal documents from plaintiff's DSU cell which allegedly interfered with his ability to litigate a case then pending in this Court — Civil Number 98-84-FR. The docket sheet from the case shows that Judge Frye granted the defendants' summary judgment motion and entered judgment in defendants' favor on July 6, 1999. Attchmt 10 to Rossi Affid. Plaintiff filed a notice of appeal on August 9, 1999. Id. The Ninth Circuit issued a briefing schedule on January 27, 2000. All of these events occurred before plaintiff was confined in the DSU.
Plaintiff's opening brief on appeal was originally due on February 28, 2000. Id. On March 28, 2000, the Ninth Circuit extended that date to April 24, 2000. Id. The record shows that plaintiff's brief was filed with the Ninth Circuit sometime before May 16, 2000, because defendants received a copy of it from the circuit court on that date. Attchmt 11 to Rossi Affid. The district court record, which was complete before plaintiff was housed in the DSU and the IMU, was transferred to the Ninth Circuit on July 21, 2000. Attchmt 10 to Rossi Affid.
The Ninth Circuit affirmed Judge Frye's dismissal of plaintiff's claims in an unpublished opinion dated March 13, 2001. Thompson v. Armenakis, No. 99-35816, 20001 WL 247376 (9th Cir. Mar. 13, 2001).
Even assuming that Meyers confiscated materials from plaintiff's DSU or IMU cell, plaintiff fails to demonstrate that he suffered an actual injury caused by such action. The record was complete in 1999, well before plaintiff was transferred to special housing. He filed his appellate brief and the case was decided by the Ninth Circuit on the merits. As long as plaintiff was able to present his arguments to the court, the fact that plaintiff did not prevail does not mean that he was denied access to the courts. The record in this case undisputably shows that plaintiff was able to file his appellate brief and present his arguments. He fails to allege a constitutional violation in regard to this claim.
C. Watts's Actions
Finally, plaintiff contends that Watts took 140 documents and destroyed them. Alternatively he contends that he gave Watts 152 documents for delivery to the SRCI law library for copying and the documents did not make it there. Again, plaintiff fails to allege that he suffered an actual injury as a result of Watts's alleged actions. Thus, he fails to allege a constitutional violation.
VI. Plaintiff's Medical Negligence Claim
Plaintiff's second claim for relief is entitled "MEDICAL MALPRACTICE." Sec. Am. Compl. at p. 16. There, plaintiff contends that defendants have a standard of reasonable conduct for medical care practice which is set by statute or ethical obligation.Id. at ¶¶ 85, 86. He alleges that defendants should have known that their actions or omissions in denying plaintiff meaningful medical care were in violation of the Eighth Amendment and in violation of the relevant statutes or ethical violations. Id. He contends that defendants intentionally allowed him to suffer symptoms of untreated medical conditions and a mental disorder by refusing him medical care and medications. Id.
In support of this claim, plaintiff alleges no facts independent of those already asserted in the context of his Eighth Amendment claim. I have already addressed the Eighth Amendment claim above and there is no need to repeat that discussion here.
I construe this claim as an attempt by plaintiff to allege a negligent basis for his Eighth Amendment claim as opposed to one of deliberate indifference. As such, he cannot sustain this claim. Clement, 298 F.3d at 904.
Alternatively, I construe this claim as a supplemental common-law state tort claim for medical negligence. Under the Oregon Tort Claims Act, the sole cause of action for a state official's tortious conduct is against the State of Oregon unless the conduct occurred outside the scope of the official's duties or employment. Or. Rev. Stat. § (O.R.S.) 30.265(1). Plaintiff does not allege that any of the defendants acted outside the scope of their employment. Accordingly, any supplemental state tort claim must be asserted against the State of Oregon. However, a tort claim asserted against the State of Oregon in this Court is barred by the state's sovereign immunity. Skoog v. Clackamas County, No. CV-00-1733-MO, 2004 WL 102497, at *7 (D. Or. Jan. 12, 2004); Center for Legal Studies v. Lindley, 64 F. Supp.2d 970, 974-76 (D. Or. 1999), aff'd, 2001 WL 30069 (9th Cir. 2001).
Thus, whether the claim is interpreted as an Eighth Amendment claim based on negligence, or a supplemental state law tort claim for medical malpractice, it should be dismissed.
CONCLUSION
I recommend that plaintiff's motion for summary judgment (#47) be denied and that defendants' motion for summary judgment (#49) be granted in part and denied as to plaintiff's Eighth Amendment claims regarding the deprivation of his wheelchair and TENS unit.
SCHEDULING ORDER
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due August 11, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date.
If objections are filed, a response to the objections is due August 25, 2004, and the review of the Findings and Recommendation will go under advisement on that date.
IT IS SO ORDERED.