Turner v. Multnomah Cnty.

RANDALL TURNER, Plaintiff, v. MULTNOMAH COUNTY, a political subdivision of the State of Oregon;WASCO COUNTY, a political subdivisionof the State of Oregon;GILLIAM COUNTY, a political subdivision of the State of Oregon;HOOD RIVER COUNTY, a political subdivision of the State of Oregon;SHERMAN COUNTY, a political subdivision of the State ofOregon;and OLE LLOYD ANDERSON ERSSON, M.D.; MONICA WAHLS, N.P.;NORTHERN OREGON CORRECTIONAL FACILITY, Defendants.

Civil Case No. 3:12-cv-01851-KI

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

June 3, 2015

OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Randall Turner

90675-011

FCI Terminal Island

P.O. Box 3007

Terminal Island, CA 90731

Pro se Plaintiff

James Dumas

Michael J. Estok

Lindsay Hart, LLP

1300 SW Fifth Ave., Ste. 3400

Portland, OR 97201

Attorneys for Defendant Monica Wahls, N.P.

Jenny M. Madkour, County Attorney

for Multnomah County

David N. Blankfeld

Assistant County Attorney

Office of Multnomah County Attorney

501 N.E. Hawthorne Blvd., Ste. 500

Portland, OR 97214

Attorneys for Defendants Multnomah County and Ole Ersson, M.D.

KING, Judge:

Pro se plaintiff Randall Turner, a federal inmate housed at Inverness Correctional Facility in Multnomah County and at Northern Oregon Correctional Facility ("NORCOR") during the events alleged in his complaint, brings claims against Multnomah County, Dr. Ole Lloyd Anderson Ersson, and Nurse Practitioner Monica Wahls arising out of his medical treatment while housed at the two correctional institutions.¹ Pending before me are the defendants' Motions to Strike Turner's expert report [118, 121] and their Motions for Summary Judgment[131, 135 ]. For the following reasons, I deny the motions to strike and grant the motions for summary judgment.

BACKGROUND

I. Allegations and Procedural History

Turner was initially represented by counsel. His Second Amended Complaint, drafted by counsel, alleges a claim of negligence against Multnomah County, Dr. Ersson, and Nurse Wahls.

Turner specifically alleges:

Defendants were negligent in one or more of the following particulars:

a. In failing to diagnose and treat the neurological progressive and severe disease[] he was suffering from, spinal stenosis;

b. In failing to obtain a qualified medical evaluation of Turner;

c. In failing to refer him for a neurological/neurosurgical consultation; and

d. In failing to provide him with medical care and treatment associated with the minimal standards of a competent medical professional.

Second Am. Compl. ¶ 19. He also alleges medical malpractice, involving similar assertions as those contained in his negligence claim, and a § 1983 claim of deliberate indifference to medical needs against Dr. Ersson and Nurse Wahls. He alleges permanent spinal cord damage, respiratory failure, kidney damage, brain damage, and vascular damage as a result of the delay and poor medical care.

Turner's counsel subsequently requested leave to withdraw which I granted. After attempting to appoint pro bono counsel for many months, I directed Turner to proceed pro se. I moved the case schedule deadlines on a number of occasions, sometimes over the objections of the defendants. The latest expert report deadline was November 12, 2014.

II. Facts

Except as specifically noted, the following facts are undisputed or are indisputable: Turner was arrested on federal charges and detained at Multnomah County's Inverness Correctional Facility, as well as at NORCOR, during the times relevant to his complaint. He was arrested, arraigned, and detained on August 25, 2009. He entered a guilty plea on July 12, 2010. The Court delayed his sentencing due to several medical events, described more fully below, which occurred after his guilty plea.

Turner was treated at Inverness on July 26, 2010 for chronic back pain, at which time he reported increased pain, an inability to bend his neck, and numbness in his hands. Upon examination, Turner demonstrated tenderness in his lower cervical and upper thoracic spine, with a decreased but not seriously diminished range of motion.² Turner reported he had already had one surgery on his back, and he had been told he would need another surgery at some point. He was prescribed Flexeril and acetaminophen.

Turner was transferred to NORCOR soon thereafter.

While at NORCOR, Nurse Wahls examined and treated Turner four times (in bold type below) out of a total of eight medical visits. Pl.'s Ex. B. I have summarized the substance of those appointments below.

Turner first wrote a medical request complaining of a rash on his arm on August 3.

• August 4, 2010: Nurse Wahls observed the mild rash and ordered two creams to treat it. She also reported Turner's history of cervical fusion and herniated disc; she noted a cervical muscle spasm and directed him to engage in range of motion exercises daily; she discontinued acetaminophen and gave Turner ibuprofen.

• August 12, 2010: Turner requested a change in medication for pain; ibuprofen was discontinued in favor of gabapentin (Neurontin) and Mobic (an NSAID).

• August 13, 2010: a note reflects Turner's complaints of chronic back pain, but that he was in no distress; the nurse described him as "calm/cooperative." Pl.'s Ex. B, at 2.

Turner wrote a medical request to treat a sore throat on August 14.

• August 18, 2010: Nurse Wahls treated Turner's sore throat by recommending he stay hydrated; she denied his request for a salt gargle due to his history of hypertension. Turner also reported his "neck is feeling better. The neurontin helps." Id. Nurse Wahls continued the Neurontin, as well as acetaminophen and Mobic for pain.

Turner requested more cream for the rash on his arm, medical care for his constipation, and complained about back pain in an August 30 written request.

• August 31, 2010: Turner's rash was treated with hydrocortisone cream and his constipation with fiber.

Turner wrote a medical request complaining the fiber was not working on September 2.

• September 3, 2010: Turner was informed he needed to take the fiber for longer in order for it to work effectively.

Turner completed a medical request indicating he had something in his eye and, separately, that he was still constipated.

• September 8, 2010: Nurse Wahls examined Turner in relation to his complaints of constipation and eye problems. She prescribed eye drops, Metamucil and milk of magnesia. Although not contained in the treatment note, Turner asserts he complained about lack of equilibrium and balance; Nurse Wahls allegedly directed him to submit a written medical request and refused to discuss this new complaint with Turner.

That same day, Turner wrote a medical request indicating increased back pain and newleg weakness which "began less than a week ago and are becoming more severe." Pl.'s Ex. B, at 6(a). According to Turner, he completed the medical request form prior to his visit with Nurse Wahls; it is dated September 8 at 6:30 AM. The medical request is stamped received by the medical department on September 9.

On September 12, Turner reiterated his complaints of back pain and leg weakness in a written medical request.

• September 16, 2010: Turner informed Nurse Wahls that he believed he had a ruptured disc and needed an MRI; he wanted to be sent to the hospital. He described shooting back pain up and down his back, as well as between his shoulder blades, weakness in his left leg. Nurse Wahls observed Turner walking and noted his inconsistent use of both legs. He was able to fully bear weight on both sides. She noted no evidence of foot drop. She noted bilateral leg strength and resistance was within normal limits. She found no evidence of paraspinous muscle spasm bilaterally. She assessed malingering and suggested acetaminophen for pain.

At Turner's defense counsel's request, made on September 21, 2010, an order to transfer Turner was entered to facilitate medical care from a physician. Turner arrived at Inverness on September 23 and completed a Medical Request Form that day identifying loss of strength in his right leg, and numbness in his abdomen, chest, and down both legs. Defendant Dr. Ersson immediately reviewed Turner's medical records from NORCOR and recorded the following in Turner's chart:

CR-Federal attorney letter re: client requesting [transfer at] NORCOR [complains of] numbness in his leg and abdomen interfering [with] his ability to walk. Client requesting an MRI. Seen by unnamed provider 9/16 [complained of] ruptured disc and needing MRI. Complains of shooting back pain up and down my whole back between my shoulder blade and weakness in L leg, but observed walking inconsistent use of both legs. Exam reassuring[;] client felt to be malingering. Rx'd tylenol. Similar meds continued her[e], Ibu instead of meloxicam [Mobic]. Currently has CR 9/30.

Ersson Decl., Ex. 1, at 1.

Dr. Ersson requested that Turner be observed for "any difficulty walking or other behavioral characteristics." Id.

The next day, September 24, Matthew Rose, D.O., examined Turner and noted Turner's reports of numbness, dragging right leg, and weakness. Dr. Rose felt any neurological complaint was not consistent with physiology and that Turner was malingering. Nevertheless, he referred Turner for a neurological consultation.

Turner continued to complete Medical Request Forms, one on September 25 and one on September 27. He requested a wheelchair to accommodate his difficulty walking and asked whether an appointment had been made with a neurologist.

Turner signed an outside referral consent form on September 28. On September 29, Turner was informed that the U.S. Marshals Service had approved the appointment, that Turner's "information" had been faxed to the neurologist, and that once the neurologist had reviewed Turner's file an appointment would be set. Ersson Decl. Ex. 4, at 1.

Turner requested a wheelchair again on October 2, which the institution provided him on October 4. He had been using a walker.

A nurse called OHSU on October 4 and learned it could take five to ten business days for a...