Opinion
21-35240
11-15-2022
CASSANDRA LORRAINE ROSE, Plaintiff-Appellant, v. MARK PATTON, Doctor; GARTH GULICK, Doctor; EVANS, Doctor; DIGIULIO, Doctor; TROY BOWSER, Warden; MARK NOOTH; C. DIETER; R. CONLEY; J. BUGHER; A. EYNON, Defendants-Appellees.
NOT FOR PUBLICATION
Submitted November 10, 2022 [**]San Francisco, California
Appeal from the United States District Court for the District of Oregon Stacie F. Beckerman, Magistrate Judge, Presiding No. 2:19-cv-01195-SB
Before: WALLACE, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.
MEMORANDUM [*]
Cassandra Lorraine Rose appeals from the district court's grant of defendants' motion for summary judgment on all six of Rose's claims. As the facts are known to the parties, we repeat them only as necessary to explain our decision.
I
Claims two through five allege deliberate indifference on the part of the defendants. To prevail on a deliberate indifference claim, a plaintiff must establish two facts: (1) the existence of a "serious medical need," and (2) that the defendants' "response to the need was deliberately indifferent." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The second prong requires a showing that the defendants "[knew] of and disregard[ed] an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). A mere "'difference of medical opinion' as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). Instead, to prevail, the plaintiff must show that the treatment "was medically unacceptable under the circumstances" and was chosen "in conscious disregard of an excessive risk" to the plaintiff's health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
In her second, third, and fourth claims, Rose alleges that defendants acted deliberately indifferent to her falling from the top bunk because they failed to assign her the low bunk permanently. However, she does not present any evidence that would establish that the prison officials' failure to honor her request was "medically unacceptable under the circumstances." Id. To the contrary, after she first fell from the top bunk while on Abilify, she was temporarily assigned to the low bunk. Rose was re-assigned back when her Abilify prescription ended shortly after her second fall, this time from the low bunk. After Rose's alleged third fall, her request for a low bunk was denied because the prison staff was unable to observe symptoms consistent with her claims. Rose was then assigned to the low bunk for six months after her fourth fall. However, three months later, she requested that her low bunk assignment be prematurely terminated and that she be returned to the top bunk. Because the defendants examined Rose after each incident and twice assigned her to the low bunk, her belief that she should have been instead assigned permanently to that bunk is, at most, "a difference of medical opinion" between Rose and the prison staff. Jackson, 90 F.3d at 332. These claims, therefore, cannot succeed "as a matter of law." Id.
Rose's fifth claim fails for the same reason. She pleads that defendants acted with deliberate indifference towards her back pain because they failed to prescribe the stronger pain killers that Rose requested. Once again, she does not present facts demonstrating that the offered treatment was "medically unacceptable under the circumstances." Hamby, 821 F.3d at 1092. In contrast, the prison staff provided frequent and timely medical care. After her first fall, Rose was examined within days. The scan revealed no fractures or misalignments, and Rose was prescribed Tylenol, ibuprofen, and hot packs for the pain. After each incident, Rose was again seen by the doctors and often prescribed similar medication. Even though Rose might have preferred stronger pain killers, her disagreement as to the course of her treatment is, once again, a mere "difference of medical opinion." Jackson, 90 F.3d at 332.
II
Rose does not appear to dispute the district court's grant of summary judgment as to her first and sixth claims. She has, therefore, waived those issues. Balser v. Dep't of Just., Off. of U.S. Tr., 327 F.3d 903, 911 (9th Cir. 2003) (quoting Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir.1995)). Even assuming we exercise our discretion to review these claims because they were discussed in the answering brief, Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016), the district court did not err.
Rose's first claim, alleging that defendants were negligent in assigning her to a top bunk while she was taking Abilify, fails. The Oregon Tort Claims Act ("OTCA") governs tort claims against Oregon public bodies and its employees. Or. Rev. Stat. § 30.275(1). The Act requires that the plaintiff provide defendants with notice "within 180 days after the alleged . . . injury." Or. Rev. Stat. § 30.275(2)(b); see also Urb. Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 40 (1976) ("The . . . proof of notice sufficient to satisfy the requirements of ORS 30.275 is a mandatory requirement and a condition precedent to recovery under the Oregon Tort Claims Act.") (emphasis added). Rose's notice on October 25, 2018, alleging negligence arising out of her fall on July 17, 2017, was late.
The district court had supplemental jurisdiction to hear this state negligence claim because it is related to Rose's federal claims. 28 U.S.C. § 1367(a). In turn, we have jurisdiction to review this appeal of a final decision under 28 U.S.C. § 1291.
The sixth claim, under 42 U.S.C. § 1983, fares no better. Rose pleads that the defendants unconstitutionally denied her appeal of the grievance underlying her fourth claim. This § 1983 claim is subject to the Prison Litigation Reform Act ("PLRA"). Albino v. Baca, 747 F.3d 1162, 1165 (9th Cir. 2014). The Act requires "that a prisoner challenging prison conditions exhaust available administrative remedies before filing suit." Id. The inmate must "complete the administrative review process in accordance with the applicable procedural rules . . . as a precondition to bringing suit in federal court." Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). As relevant to this case, an inmate must submit a grievance within thirty days of the incident. Or. Admin. R. § 291-109-0150(2). Rose has not grieved the denial of her appeal.
Although this section was repealed effective on October 18, 2019, it was the law at the time of the incident giving rise to the claim. This appeal is, thus, governed by it. Rose does not argue otherwise.
Therefore, her claim fails.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).