Rogers v. Paulson

JEFFERY SCOTT ROGERS, Plaintiff, v. REED PAULSON; WILLIAM STRAUSS;and CHRISTOPHER DIGIULIO, Defendants.

Case No. 6:19-cv-00438-SB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 5, 2021

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Jeffery Scott Rogers ("Rogers"), an individual in the custody of the Oregon Department of Corrections ("ODOC"), filed this action under 42 U.S.C. § 1983 against Christopher DiGiulio ("Dr. DiGiulio"), Medical Director at the Oregon State Penitentiary ("OSP"), and two OSP medical providers, Reed Paulson ("Dr. Paulson") and William Strauss ("Dr. Strauss") (together with Dr. DiGiulio, "Defendants"). (ECF No. 1.) Rogers alleges deliberate indifference to his serious medical needs and denial of adequate pain management in violation of his Eighth Amendment rights. All parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636.

The parties now cross-move for summary judgment. (ECF No. 22; ECF No. 48.) For the reasons explained below, the Court grants Defendants' motion for summary judgment and denies Rogers' motion for summary judgment.

BACKGROUND

I. ROGERS' MEDICAL ISSUES

Rogers is an individual in ODOC's custody and is currently incarcerated at OSP. On December 2, 2017, Rogers underwent abdominal surgery for a bowel obstruction. (Pl.'s Aff. in Support of Mot. Summ. J. ("Rogers Aff.") ¶ 7, ECF No. 23; Decl. of William Strauss ("Strauss Decl.") ¶ 8, ECF No. 49; id. Ex. 1, at 9.) Medical providers from Salem Health performed the surgery at the Salem Hospital. (Strauss Decl. ¶ 8; Rogers Aff. ¶ 7.) Rogers' incision was closed with staples. (Rogers Aff. ¶ 7; Strauss Decl. Ex. 1, at 6.) Rogers understood from doctors' instructions at Salem Hospital that the staples should be removed "in around 3 weeks," at a follow-up appointment scheduled for December 24, 2017.¹ (Rogers Aff. ¶¶ 7, 10.) Rogers' discharge instructions from the hospital, however, indicated that the staples should be removed within ten to fourteen days after the surgery. (Strauss Decl. Ex. 1, at 6.) Upon Rogers' return to OSP on December 10, 2017, the infirmary admission notes indicated that his incision was leaking serosanguinous fluid into his dressing. (Id. at 20.) Several days later, medical progress notes indicated that the incision continued to leak serosanguinous fluid, but that the provider did not believe the wound was infected. (Id. at 19.)

On December 15, 2017, Dr. Strauss examined Rogers' incision. (Rogers Aff. ¶ 9; Strauss Decl. ¶¶ 12-13.) Dr. Strauss observed that the incision appeared to be healing and the staples were ready to be removed. (Rogers Aff. ¶ 9; Strauss Decl. ¶¶ 12-13.) Rogers objected to the removal of the staples and told Dr. Strauss that the doctors at Salem Hospital had informed him that the staples should be removed at his follow-up appointment on December 24. (Rogers Aff. ¶¶ 9-10.) Strauss removed Rogers' staples that day, and OSP medical staff canceled Rogers' December 24 follow-up appointment at Salem Hospital. (Rogers Aff. ¶¶ 9-10; Strauss Decl. ¶ 13.) After removal, Dr. Strauss prescribed Rogers a narcotic medication to alleviate his pain. (Strauss Decl. ¶ 13; id. Ex. 1, at 12.)

On December 17, 2017, Rogers awoke in his cell to severe pain, and discovered that his wound dressing had fallen off. (Rogers Aff. ¶ 11.) His bed sheets were covered in blood and other bodily fluids, and he had an open wound at his incision. (Id. ¶ 12.) Rogers visited the infirmary where medical staff cleaned and bandaged his wound. (Id. ¶ 14.) On January 3, and January 5, 2018, Rogers was examined by two different doctors who opined that Rogers' incision was healing well. (Strauss Decl. ¶¶ 18-19; id. Ex. 1 at 15, 21.)

On February 14, 2018, during a medical appointment, medical staff discovered a golf ball-sized ventral incisional hernia in Rogers' abdomen.² (Rogers Aff. ¶ 16; Pl.'s Mot. Ex. 6; Strauss Decl. ¶ 20; Id. Ex. 1, at 14.) According to Rogers, the medical provider insisted that the hernia "was no big deal and should not cause me any problems," and that "there was minimalchance of any complications."³ (Rogers Aff. ¶ 16.) Rogers' hernia continued to grow and became increasingly painful. (Id. ¶ 20; Pl.'s Mot. Ex. 8.) Rogers was prescribed Cymbalta to treat his pain. (Rogers Aff. ¶ 20; Pl.'s Mot. Ex. 8.) On March 27, 2018, Rogers sent a kyte to OSP Medical requesting hernia repair surgery and claiming that his hernia resulted from Dr. Strauss removing his staples too early. (Pl.'s Mot. Exs. 9-10; Rogers Aff. ¶ 19.)

In April 2018, the Therapeutic Level of Care ("TLC") committee approved Rogers "for surgical repair of baseball size ventral hernia."⁴ (Strauss Decl. ¶ 20; id. Ex. 1, at 28; Rogers Aff. ¶ 21; Pl.'s Mot. Ex. 11; Decl. of Adam Kidwell ("Kidwell Decl.") Ex. 3, at 5.) On May 9, 2018, Rogers sent a kyte to OSP Medical about the timing of his Cymbalta doses, in which he explained that the Cymbalta "works moderately well although some days the pain is at times overbearing. I'm open to options."⁵ (Pl.'s Mot. Ex. 12.)

On May 18, 2018, Dr. Strauss consulted with Rogers about his approved hernia surgery and referred Rogers to OHSU for surgical hernia repair. (Pl.'s Mot. Ex. 13; Rogers Aff. ¶ 24; Strauss Decl. ¶ 22.) It is not clear what happened next in the process of scheduling Rogers' surgery. Later, an October 23, 2018, letter from Dr. DiGiulio noted that, "[i]t is unclear why the surgery at OHSU was not processed as it should have." (Pl.'s Mot. Ex. 11; Kidwell Decl. Ex. 3,at 5.) An April 15, 2019, letter from ODOC Health Services Administrator Joe Bugher acknowledged a "gap in time between Dr. Strauss's referral and the processing of that order approximately four months later" that was "due in part to our process of paper charting." (Pl.'s Mot. Ex. 40.)

Between May and July 2018, Rogers sent five kytes to OSP Medical inquiring as to the status of his surgery and requesting pain management. (Pl.'s Mot. Exs. 12-17; Rogers Aff. ¶¶ 23, 25-28.) He was told in response that the hernia surgery was "in the scheduling process." (Pl.'s Mot. Ex. 14.)

II. ODOC'S GRIEVANCE PROCESS

ODOC employs a three-step grievance and appeal process. Or. Admin. R. 291-109-0100 ("OAR") et seq.⁶ Generally, an adult in custody ("AIC") must file a grievance with the grievance coordinator within thirty days of the alleged condition or incident. (Kidwell Decl. ¶ 11; OAR 291-109-0150(2).) If an AIC is dissatisfied with the initial response to an accepted grievance, the AIC may appeal the denial in a two-level system of review. (Kidwell Decl. ¶ 13; OAR 291-109-0170.) If the first appeal is denied, the AIC may file a second appeal with the Grievance Coordinator within fourteen days of the date the denial was sent to the AIC. (Kidwell Decl. ¶ 15; OAR 291-109-0170(2)(c).) The Grievance Coordinator forwards the appeal to an assistant director, or the assistant director's designee, who then has thirty days to issue a second (andfinal) response. (Kidwell Decl. ¶ 16.) A decision on a second appeal is final and not subject to further review. (Id.; OAR 291-109-0170(2)(f).)

Under the rules applicable at the time of Rogers' grievance, an AIC could not file a grievance regarding "[c]laims or issues for which the inmate has filed a Notice of Tort[.]"⁷ (Kidwell Decl. ¶ 7; id. Ex. 1, at 3; OAR 291-109-01430(g).) If an AIC filed a tort claim notice during the grievance process, the process was terminated pursuant to the relevant administrative rules.⁸ (Kidwell Decl. ¶ 17; see OAR 291-109-0160(4) ("If at any time the grievance coordinator determines the inmate has pursued his/her issue through state or federal courts, or has filed a notice of tort claim, the grievance process will cease and the grievance will be returned to the inmate.").)

III. ROGERS' GRIEVANCE HISTORY

On August 16, 2018, Rogers filed a grievance pursuant to ODOC's grievance procedures. (Pl.'s Mot. Ex. 18; Kidwell Decl. ¶ 19; id. Ex. 3, at 1-2.) The subject of the grievance was (1) Rogers' development of a hernia allegedly due to early removal of his staples by Dr. Strauss, (2) allegedly inadequate management of pain and distress from the hernia, and (3) the delay in scheduling Rogers' hernia repair surgery. (Rogers Aff. ¶ 29; Kidwell Decl. ¶ 19.) On August 28, 2018, OSP responded to Rogers' grievance, stating that Rogers' surgery was in the process ofbeing scheduled, and that OSP medical staff has no control over scheduling. (Pl.'s Mot. Ex. 19; Rogers Aff. ¶ 30; Kidwell Decl. ¶ 20.) On September 12, 2018, Rogers appealed OSP's response. (Pl.'s Mot. Ex. 20; Rogers Aff. ¶ 31; Kidwell Decl. ¶ 21.)

On October 23, 2018, Rogers received a response to his grievance appeal from Dr. DiGiulio stating that OSP did not process his surgery request correctly, and that OSP medical staff were looking into expediting the surgery scheduling process. (Pl.'s Mot. Ex. 11; Rogers Aff. ¶ 37; Kidwell Decl. ¶ 22.) On October 30, 2018, Rogers filed his second and final appeal of DiGiulio's response. (Pl.'s Mot. Ex. 27; Rogers Aff. ¶ 39; Kidwell Decl. ¶ 23.) Mr. Kidwell, the grievance coordinator, forwarded Rogers' second appeal to the assistant director of ODOC on November 7, 2018. (Kidwell Decl. ¶ 23.) Under the applicable grievance rule, the assistant director's response to Rogers' second and final grievance appeal was due December 7, 2018.⁹ (Id.; see OAR 291-109-0170(2)(e).)

On or about December 1, 2018, Rogers filed a Notice of Tort Claim.¹⁰ (Rogers Aff. ¶ 41; Pl.'s Mot. Ex. 29.) On December 5, 2018, Rogers' final grievance appeal was returned to him, with a letter explaining that the grievance process was terminated due to Rogers' filing of the tort claim notice, and citing the following grievance rule: "If at any time the grievance coordinatordetermines the inmate has pursued his/her issue through state or federal courts, or has filed a notice of tort claim, the grievance process will cease and the grievance will be returned to the inmate." (Kid...