Opinion
CIVIL 6:16-cv-00070-AC
05-03-2021
SHUA TILAHUN, Plaintiff, v. MICHAEL F. GOWER, et al., Defendants.
FINDINGS AND RECOMMENDATION
John V. Acosta United States Magistrate Judge
Plaintiff, an adult in custody at the Oregon State Penitentiary (“OSP”), brings this civil rights action pro se. Currently before the court are the parties' cross-motions for summary judgment. For the reasons that follow, plaintiff's motion for summary judgment should be denied the defendants' motion for summary judgment should be granted, and this case should be dismissed.
The court informed plaintiff of his obligations with regard to opposing an summary judgment motion through a Summary Judgment Advice Note and Scheduling Order. See ECF No. 151. Plaintiff filed responsive documents.
BACKGROUND
Plaintiff brings this action against several Oregon Department of Corrections (“ODOC”) employees, contractors, and officials. His Amended Complaint alleges violation of his rights under the Fourteenth Amendment Equal Protection Clause and his right to be free from cruel and unusual punishment under the Eighth Amendment, based upon claims of denial of medical care related to the discontinuance of a pain reliever (Neurontin) and denial of treatment for facial injuries, improper mental health treatment, and improper housing accommodations in violation of his rights under 42 U.S.C. § 1983. Defendants move for summary judgment on the following grounds: (1) many of plaintiff's allegations concern conduct which occurred outside the statute of limitations; (2) plaintiff fails to allege facts stating a claim upon which relief may be granted against defendant Gower; (3) plaintiff has not fully exhausted his administrative remedies as to all of the claims alleged; (4) plaintiff has not stated a viable equal protection claim; (5) plaintiff did not suffer deliberate indifference to his serious medical or mental health needs; (6) plaintiff's housing accommodations were not unconstitutional; and (7) defendants are entitled to qualified immunity.
In his Amended Complaint, plaintiff appears to also allege claims under the Americans with Disabilities Act and the HIPAA. In his response to defendants' motion for summary judgment, however, plaintiff states he is not attempting to prosecute claims for violation of the ADA or HIPAA but instead cited the ADA “in order to demonstrate that he meets the criteria of the ADA to be considered a person with a disability, ” and cited HIPAA “to demonstrate that in violating the provisions of HIPAA in the course of failing to properly treat Plaintiff, Defendants are subjecting Plaintiff to unconstitutionally cruel and unusual punishment.” (Pl. Resp. to Def. Mot. for S.J. (“Pl. Resp.”), ECF No. 152, p. 4).
Defendants also moved for summary judgment on the basis that plaintiff did not state claims for relief under the ADA and HIPAA, and that defendants are immune from suit for damages for claims brought against them in their official capacity. As noted, plaintiff stated in his Response that he did not intend to assert claims under the ADA or HIPAA. Plaintiff also asserted that he does not assert that defendants acted within their official capacities to violate his civil rights. (P. Resp., ECF No. 152, p. 3.)
SUMMARY OF FACTS
I. Plaintiffs Medical Treatment
A. Discontinuation of Neurontin Prescription
Plaintiff was prescribed Neurontin in February of 2012 to treat back pain. (Paulson Decl., ECF No. 147, ¶ 6). Plaintiff states he was prescribed Neurontin for chronic back pain caused by nerve damage from multiple injuries. (Am. Comp. at ¶ 20; Exh. 12a).
Neurontin (generic name “gabapentin”) is an anti-epileptic drug, also called an anticonvulsant, which can help patients who suffer from seizures. (Paulson Decl. at ¶ 4.) Neurontin is also used to treat neuropathic pain caused by the herpes virus or shingles. Id. It is a drug that has a heavy sedative effect, which can be akin to having a couple of beers or valiums. Id. at ¶ 5. Within the prison setting, it is often diverted, or used inappropriately, due to its sedative effect. Id. Because of its potential for abuse, and because there are other medications for treatment of epilepsy and shingles, it has been taken off the formulary at ODOC and an inmate must have Therapeutic Level of Care (“TLC”) Committee approval to use it. Id.
Plaintiff's Neurontin prescription was discontinued in February of 2015 due to educated suspicion of diverting, or “cheeking, ” the medication, as well as a lack of clinical indication that it was needed to treat his back pain. Id. at ¶ 6. “Cheeking” refers to keeping the medication in one's mouth instead of swallowing it as intended, and later retrieving it. Id. The reasons for cheeking include selling the drug or otherwise providing it to someone else, and collecting multiple medications in one setting for an increased sedative effect. Id.
According to Dr. Reed Paulson, there is no current clinical indication to prescribe Neurontin to plaintiff because his back pain can be treated with other medications. Id. at ¶ 7. Plaintiff has been offered several NSAID medications, which he declined after trying. Id. Plaintiff has also been offered on multiple occasions physical rehabilitation teaching materials for his back. Id. Dr. Paulson informed plaintiff that no medication is a perfectly good option and the plaintiff could and should focus on physical measures to improve back function. Id. In July of 2016, plaintiff was transported to the Emergency Department of the Salem Hospital because of an overdose of the illegal drug “spice, ” a synthetic cannabinoid. Id. This incident made plaintiff even less of a candidate for neuro-altering medications, for his own safety. Id.
Plaintiff states he continues to suffer back pain for which he now receives over-the-counter pain relievers with coatings to protect the stomach from prolonged use. (Am. Comp. at ¶ 27). Plaintiff states that over-the-counter pain relievers do not alleviate the pain, and that long-term use would be harmful to his health even if they did alleviate the pain. Id.
B. Facial Injuries
Plaintiff's nose, cheek, and occipital bone were broken in a 2012 altercation with staff at the Two Rivers Correctional Institution. (Am. Comp. at ¶ 28). Plaintiff states that at the time of the injury, an emergency room doctor told him he needed to see a specialist. Id. Since arriving at OSP, plaintiff has complained of issues with his face, including discomfort in the left maxilla with swelling and persistent congestion. (Paulson Decl. at ¶ 9). In November of 2013 and again in April of 2016 Willamette Valley Radiology took and reviewed facial x-rays, which were normal. Id. Since suffering his facial injury, plaintiff has had approximately 129 medical appointments within ODOC. (Coffey Decl., ECF No. 149 at ¶ 3).
C. Mental Health Diagnoses and Prescriptions
Plaintiff has been diagnosed from childhood with several chronic and severe psychological disorders, including major depression, conduct disorder, ADHD, Schizoaffective Disorder, Transient Tic Disorder, Posttraumatic Stress Disorder, Reactive Attachment Disorder, Tourette's, Bipolar Disorder, Aspergers Disorder, as well as cognitive functioning deficits and learning disorders. (Am. Compl. at ¶ 37). In July and August of 2014, plaintiff participated in psychological testing at OSP. (Gitnes Decl., ECF No. 146 at ¶ 3). This testing informed a change in plaintiffs mental health diagnosis to dysthymia (now known as “persistent depressive disorder”), antisocial personality disorder, narcissistic personality disorder, and borderline personality disorder. Id. These diagnoses remain in effect. Id.
Plaintiff's mental health medications have been changed or discontinued at least four different times due to indications of misuse or diversion of medication, which has included repeated instances of cheeking. (Dravis Decl., ECF No. 145 at ¶ 5). On May 5, 2014, plaintiff's prescription for Strattera (for treatment of ADHD), and prescriptions for Benadryl, Remeron, and BuSpar (for treatment of anxiety and depression) were discontinued due to cheeking. Id. On July 10, 2014, plaintiff was prescribed Celexa for treatment of depression and anxiety. Id. On August 5, 2014, plaintiff's Celexa prescription was discontinued and he was prescribed Lexapro. Id. His Lexapro prescription was ordered “crushed” on September 5, 2014, due to cheeking. Id. On January 22, 2015, plaintiff was prescribed Vistaril for insomnia. Id. On March 3, 2015, plaintiff's Vistaril prescription was stopped due to cheeking. Id.
On April 18, 2016, plaintiff was prescribed Effexor XR for depression and anxiety. Id. Effexor XR is an extended release medication that cannot be crushed. Id. Plaintiff's Lexapro dosage was lowered for one week and then discontinued because the Effexor XR was intended to replace it. Id. Plaintiff requested this change in medication. Id. On July 13, 2017, orders were entered to taper and discontinue plaintiff's prescription for Effexor XR. This was done due to a disciplinary report indicating that a correctional officer observed plaintiff placing something in his mouth and swallowing it during a random search. Id. Plaintiff ultimately gave at least three different versions of what happened, but told one person that he swallowed Effexor XR. Id.
Plaintiff has a history of misusing medications. Id. at ¶ 6. Because of the multiple incidents demonstrating that he is unable or unwilling to use prescription psychotropic medication responsibly, he no longer isconsidered an appropriate candidate for treatment with psychotropic medication. Id. In Dr. Dravis's opinion, medications are not required or necessary to treat plaintiffs mental health conditions. Id.
In December of 2014, and again in January 2015, plaintiff received misconduct reports because he was found in possession of another inmate's medication. (Am. Compl. at ¶ 60).
II. Plaintiffs Housing Assignments
There are multiple housing units, or blocks of cells, within OSP. (Long Decl., ECF No. 144 at ¶ 4). Plaintiff has been housed in both “D” and “E” blocks, as well as in cells within the Disciplinary Segregation Unit (“DSU”). Id. Cells in “D” and “E” blocks have 48 square-feet of space. Id. Cells in DSU have 50.66 square feet of space. Id. From July 25, 2016, to date, plaintiff has been housed by himself. Id.
LEGAL STANDARDS
I. Summary Judgment Standards
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party must establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of that party. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014); Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
Because plaintiff is proceeding pro se, the court construes his pleadings liberally and affords him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Lopez v. Dep't of Health Servs., 939 F.2d 881, 882-83 (9th Cir. 1991). However, “there is no authority for the proposition that, on motion for summary judgment, that rule operates to lighten the pro se litigant's obligation to show a genuine issue of material fact for trial through the presentation of specific, admissible evidence.” Epling v. Komathy, No. CV 10-5862-GAF (RNB), 2011 WL 13142131, at *1 (C.D. Cal. Dec. 5, 2011).
II. 42 U.S.C. § 1983 Standards
“[Section 1983] ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a cognizable claim under Section 1983, an inmate must show: (1) [defendants] acted under the color of state law, and (2) defendant[s] deprived plaintiff of a constitutional right. Id. In the Ninth Circuit, a prison official acts under color of state law where such actions are carried out in their official capacity as an employee of the state. Anderson, 451 F.3d at 1067-68.
A cognizable claim under Section 1983 also requires an inmate to show causation; that a particular defendant engaged in “‘an affirmative act, participat[ed] in another's affirmative act, or omit[ted] to perform an act which he is legally required to do that causes the deprivation of which complaint is made.'” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). To establish causation, the inmate must include in his pleadings “specific facts as to each individual defendant's” causal role in the alleged constitutional deprivation. Leer, 844 F.2d at 634. “Sweeping conclusory allegations will not suffice to prevent summary judgment.” Leer, 844 F.2d at 634.
DISCUSSION
I. Claims Outside the Statute of Limitations
Plaintiff's Amended Complaint includes a chronology of events that occurred both before and during his current incarceration, several of which took place well prior to two years before the filing of his original Complaint. Defendants contend that any events outside the two-year period prior to plaintiff's Complaint are barred by the statute of limitations. In response, plaintiff argues that the continuing tort doctrine allows the inclusion of all of his claims because “he is being subjected by defendants to continuing injury[.]” (Pl. Resp., ECF No. 152 at p. 2).
There is no specified statute of limitations for an action under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 266 (1985); Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). “[F]ederal courts [therefore] look to the law of the state in which the cause of action arose and apply the state law of limitations governing [the] analogous cause of action.” Pouncil, 704 F.3d at 573. Claims brought under § 1983 are best characterized as personal injury actions. Wilson, 471 U.S. at 276. Hence, “[the] forum state's statute of limitations for personal injury torts determines the statute of limitations for a [§] 1983 claim.” Aplin v. Or. Dep't of Corr., No. 6:17-cv-01222-MO, 2019 WL 1048837, at *2 (D. Or. Mar. 5, 2019), aff'd by 800 Fed.Appx. 591 (9th Cir. 2020). Under Or. Rev. Stat. 12.110(1), Oregon has a two-year statute of limitations for personal injury torts. Therefore, a two-year statute of limitations applies to § 1983 claims. Bailey v. Hanson, 247 F. App'x. 889, 889 (9th Cir. 2007) (holding that a “Section 1983 action is governed by Oregon's two-year statute of limitations for personal injury actions” under O.R.S. 12.110(1)) (cited pursuant to Ninth Circuit Rule 36-3); Camarata v. Portland Cmty. Coll., No. 3:19-cv-00738-HZ, 2019 WL 4723769, at *3 (D. Or. Sept. 26, 2019) (same) (internal quotations omitted).
“Although the continuing violations doctrine is most frequently seen in the context of employment discrimination suits, [the Ninth Circuit has] held that the continuing violations doctrine also applies to § 1983 claims.” Birdv. Dep't of Hum. Servs., 935 F.3d 738, 746 (9th Cir. 2019). “'The doctrine of continuing violations . . . is actually a conglomeration of several different ideas,' . . . the essence of which is that ‘when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period.'” Id. (quoting Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982), and Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (9th Cir. 2014)). Historically, the Ninth Circuit “recognized two applications of the continuing violations doctrine: first, to ‘a series of related acts, one or more of which falls within the limitations period,' and second, to ‘the maintenance of a discriminatory system both before and during [the limitations] period.'” Id. (quoting Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997)) (alteration in original).
After the Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (“Morgan II”), however, “little remains of the continuing violations doctrine.” Bird, 935 F.3d at 748. In Morgan II, the Supreme Court held that “discrete . . . acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges” because “[e]ach discrete . . . act starts a new clock for filing charges alleging that act.” Id. at 747 (quoting Morgan II, 536 U.S. at 113). “Except for a limited exception for hostile work environment claims-not at issue here-the serial acts branch is virtually non-existent.” Id. at 748.
“Although the Supreme Court in Morgan II addressed only the serial acts branch of the continuing violations doctrine, . . . [the Ninth Circuit] has applied Morgan II to abrogate the systematic branch of the continuing violations doctrine as well.” Id. at 747.
For example, in Lyons v. England, 307 F.3d 1092, 1107 (9th Cir. 2002), we reasoned from Morgan II that a plaintiff's “assertion that [a] series of discrete acts flows from a company-wide, or systematic, discriminatory practice will not succeed in establishing the employer's liability for acts occurring outside the limitations period.” Similarly, in Cherosky, the plaintiffs sought to avoid Morgan II's unfavorable holding by arguing under the systematic branch of the continuing violations doctrine; the plaintiffs contended that they could still recover damages for acts of employment discrimination that had occurred prior to the statute of limitations period as long as those acts had been conducted pursuant to a discriminatory company policy. 330 F.3d at 1246. We rejected that argument, concluding instead that “[t]he allegation that . . . discrete acts were undertaken pursuant to a discriminatory policy does not extend the statutory limitations period.” 330 F.3d at 1247.Id. “[W]hile [the Ninth Circuit has] left room for the systematic branch to apply to class-wide pattern-or-practice claims, . . . [it has] consistently refused to apply the systematic branch to rescue individualized claims that are otherwise time-barred.” Id.
Here, as noted, plaintiff argues he “is being subjected by defendants to continuing injury.” Because defendants continue to deny him the proper treatment for his medical and psychological conditions, and because the housing conditions continue to violate his rights, plaintiff contends that “no statute of limitations has been initiated.” However, Supreme Court and Ninth Circuit case law make clear that the continuing violations doctrine does not apply to actions outside the statute of limitations in this case. Plaintiff claims he continued to suffer from these acts but the “mere ‘continuing impact from past violations is not actionable.'” Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (emphasis and citation omitted). Thus, the continuing violations doctrine does not save any claim for actions that took place outside the two-year period prior to the filing of plaintiffs original Complaint.
II. Plaintiff's Claims Against Defendant Gower
To state a valid claim under § 1983, plaintiffs must allege that they suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). There is no respondeat superior liability under § 1983 and, therefore, a defendant's position as the supervisor of persons who allegedly violated a plaintiffs constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
Plaintiff does not allege that defendant Michael Gower was personally involved in any of the alleged deprivations of plaintiff's constitutional rights. Accordingly, plaintiff fails to state a claim against defendant Gower upon which relief may be granted and he should be dismissed from this case.
Ordinarily upon dismissal of a § 1983 claim for failure to state a claim upon which relief may be granted, the court must grant a pro se plaintiff the opportunity to amend to cure the deficiencies of the claim. Because plaintiffs claims fail on the merits as addressed herein, leave to amend should not be granted in this case.
III. Exhaustion of Remedies
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust all available administrative remedies before filing a § 1983 action in federal court regarding prison conditions. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997(e)(a)). Exhaustion must be proper, meaning the “grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin, 557 F.3d 1119. In other words, the prisoner must comply with the prison grievance system's “critical procedural rules, ” and must appeal the grievance to its highest level within the grievance system prior to filing a lawsuit. Woodford v. Ngo, 548 U.S. 81, 95 (2006).
Exhaustion of administrative remedies is an affirmative defense properly raised in a motion for summary judgment. Albino, 747 F.3d at 1166. Thus, defendants have the burden of establishing that plaintiff had an available administrative remedy, and that plaintiff failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015). If defendants make that showing, plaintiff must produce evidence showing that the available administrative remedies were effectively unavailable to him. Albino, 747 F.3d at 1172 (discussing burden-shifting process on exhaustion at summary judgment under PLRA). The ultimate burden of proof remains with defendants. Id. (citing Jones v. Bock, 549 U.S. 199 (2007)).
Within ODOC, an inmate's grievance generally must be submitted within 30 calendar days of the date of the incident giving rise to the grievance. (Kidwell Decl., ECF No. 148 at ¶ 11); OAR 291-109-0150(2). When a grievance is accepted, staff provide an initial response to the inmate within 45-days, unless further investigation is needed. (Kidwell Decl. at ¶ 12); OAR 291-109-0160(2)(a). The inmate may appeal a denial in a two-level system of review, with the first and second levels of appeal to be submitted within 14 calendar days from the date that responses were sent to the inmate. (Kidwell Decl. at ¶¶ 14-16); OAR 291-109-0170(1)-(2). The decision on an inmate's second grievance appeal is final and not subject to further administrative review. (Kidwell Decl. at ¶¶ 14-17); OAR 291-109-0170(2)(f). Inmates are not permitted to grieve “[c]laims or issues for which the inmate has filed a Notice of Tort with the Oregon Department of Administrative Services, Risk Management Division.” OAR 291-1090160(4) and OAR 291-109-1403(3)(g).
Plaintiff filed a grievance regarding the discontinuation of his Neurontin prescription, but he did not complete the administrative process because he filed a tort claim notice before the grievance process was complete. (Kidwell Decl. at ¶¶ 19-27). Consequently, plaintiff's claim for discontinuation of his Neurontin prescription should be dismissed for failure to exhaust his administrative remedies.
IV. Equal Protection Claim
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). To state a claim, “a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Barren, 152 F.3d at 1194. “Because ‘the disabled do not constitute a suspect class' for equal protection purposes, a governmental policy that purposefully treats the disabled differently from the non-disabled need only be ‘rationally related to legitimate legislative goals' to pass constitutional muster.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)).
Plaintiff has not alleged the existence or application of any discriminatory ODOC policies against the disabled. Nor does plaintiff allege that he has been treated differently than other similarly situated inmates. In his response to defendants' motion, plaintiff argues he is treated differently from those without disabilities because he is denied the right to make decisions about his medical care, because his disabilities are untreated, and because he is unable to participate in work, education, or other rehabilitative activities. (Pl. Resp., pp. 3-4). Plaintiff does not, however, provide any evidence to support these arguments, or any evidence that defendants acted with intent or purpose to discriminate or that other inmates with mental health illness were treated differently. Accordingly, plaintiff's Fourteenth Amendment equal protection claim should be dismissed.
V. Denial of Medical and Mental Health Care
The right to be free from cruel and unusual punishment under the Eighth Amendment is violated when prison medical officials act, or fail to act, with deliberate indifference to an incarcerated prisoner's serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Therefore, a plaintiff must demonstrate both (1) the existence of serious medical needs, and (2) that prison medical personnel acted with deliberate indifference to those needs. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citing Estelle, 429 U.S. at 104).
Deliberate indifference includes both an objective and a subjective component. Objectively, an official's conduct must pose “a risk of ‘objectively, sufficiently serious' harm.” Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quoting Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995)). Harm is objectively sufficiently serious when a “failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Id. (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)); Estelle, 429 U.S. at 104).
Subjectively, the official must also possess a “‘sufficiently culpable state of mind' in denying the proper medical care.” Clement, 298 F.3d at 904 (quoting Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 19950). Deliberate indifference “describes a state of mind more blameworthy than negligence . . . [and] requires ‘more than ordinary lack of due care for the prisoner's interests or safety.'” Farmer v. Brennan, 511 U.S. 825, 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). The subjective element “is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “Deliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk' to the prisoner's health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
As noted above, plaintiff's Neurontin prescription was discontinued due to suspicion he was cheeking the medication, but also because of a lack of clinical indication to treat his back pain. Moreover, Dr. Paulson opined that there is no current clinical indication for plaintiff to have Neurontin and that his back pain can be treated with other medications and physical rehabilitation. Plaintiff provides no evidence that the decision to discontinue his Neurontin prescription resulted from disregard to an excessive risk to his health or safety or that the treatment decision was medically inappropriate.
As to plaintiff's claim of denial of medical care for his facial injuries, plaintiffs facial x-rays were taken and reviewed in November of 2013 and again in April of 2016 by Willamette Valley Radiology and were normal. Plaintiff provides no evidence to suggest that any further medical treatment is necessary.
Finally, defendants present evidence that plaintiff has received ongoing mental health treatments, and that medications are not required or necessary to treat his mental health conditions. While plaintiff may disagree with the decision to discontinue his psychotropic medications, he does not provide any evidence that it was medically unacceptable under the circumstances, or was chosen in conscious disregard of an excessive risk to plaintiffs health. To the contrary, plaintiff has a history of misusing medications, and because of the multiple incidents demonstrating he is unable or unwilling to use the psychotropic medication appropriately, he is no longer an appropriate candidate for that medication.
Plaintiff has not established any genuine issue of material fact for his claims that he was denied medical care in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Accordingly, these claims should be dismissed.
VI. Housing Arrangements
In Rhodes v. Chapman, 452 U.S. 337, 343-44, 348-50 (1981), the Supreme Court found that a 63-square-foot cell shared by two inmates (with approximately 31.5 square feet per person) was not a constitutional violation. Other courts have likewise found shared cells do not rise to the level of a constitutional violation. See Jones v. Goord, 435 F.Supp.2d 221, 236-38 (S.D.N.Y. 2006) (shared cells of 50 square feet did not rise to the level of an Eighth Amendment violation); Kunze v. Bertsh, 477 F.Supp.2d 1038, 1048-49 (D. N.D. Mar. 14, 2007) (cell size as low as 35 square feet did not constitute cruel and unusual punishment); Dohner v. McCarthy, 635 F.Supp. 408, 425 (C.D. Cal. 1985) (cell space of 11.5 square feet per person found to be constitutionally adequate).
In Capps v. Atiyeh, 495 F.Supp. 802 (D. Or. 1980), Judge Burns held that cells at OSP with 30 square feet per inmate rose to the level of an Eighth Amendment violation. That decision, however, was vacated by the Ninth Circuit Court of Appeals in Capps v. Atiyeh, 652 F.2d 823 (9th Cir. 1981), and “remanded for further consideration and specific findings in light of the Supreme Court's decision” in Rhodes. Upon remand, the court determined that there was insufficient evidence in the record “to find that double-celling in segregation denies the inmates any of life's basic needs.” Capps v. Atiyeh, 559 F.Supp. 894, 907 (D. Or. 1982). The court further found that while the individual space granted to inmates at OSP was severely limited due to overcrowding, “the simple lack of space does not inflict pain” and there was no evidence that the lack of space deprived inmates of “basic shelter and sanitation needs.” Id. at 915.
Plaintiff claims that he is forced to share a cell with another inmate in a cell that only provides 30 square feet of floor space per person, though he does not provide any evidence regarding the actual dimensions of his cell. Defendants submit evidence that plaintiff's current cell size is 48 square feet, and that although he been double-celled in the past, plaintiff has been in a single cell since July 25, 2016. This does not rise to the level of a constitutional violation and, as such, plaintiff's claim should be dismissed.
VI. Qualified Immunity
Finally, defendants contend they are entitled to qualified immunity. The doctrine of qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Such protection extends regardless of whether the government official makes an error as a result of “‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'” Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Qualified immunity thus “gives government officials breathing room to make reasonable but mistaken judgments, ” and “protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (noting that “regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not ‘clearly established' or the [official] could have reasonably believed that his particular conduct was lawful”).
On summary judgment, courts resolve questions of qualified immunity through a two-pronged inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong “asks whether the facts, ‘[t]aken in light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right[.]'” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The second prong “asks whether the right in question was ‘clearly established' at the time of the violation.” Tolan, 572 U.S. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The court is not required to address the prongs in any particular order. See Pearson, 555 U.S. at 236 (holding that “the judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand”).
Here, the first prong is dispositive. As discussed above, no constitutional violation occurred. As such, qualified immunity shields defendants from suit.
CONCLUSION
For the reasons stated above, plaintiff's Motion for Summary Judgment (ECF No. 101) should be DENIED, defendants' Motion for Summary Judgment (ECF No. 142) should be GRANTED, and judgment of dismissal with prejudice should be entered.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due on May 17, 2021. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.