ACREE v. PETTERSON

GARR M. KING, United States District Judge.

Plaintiff, a former inmate at the Harney County Corrections Facility in Burns, Oregon, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originated this action pro se raising a number of issues relative to his incarceration. By an Opinion dated August 1, 2000, I denied plaintiff's motion for injunctive relief and granted defendants' motion for summary judgment finding that plaintiff had failed to state a claim in all but two respects: (1) whether plaintiff was denied adequate medical care relative to: (a) the provision of crutches; (b) dispensation of his anti-seizure medication; (c) assignment to a "handicapped cell;" and (2) whether plaintiff's privacy rights were violated when he was viewed by a female prison guard while using the toilet.

On August 15, 2000, this Court ordered the Clerk of Court to request counsel from the panel of volunteer lawyers. The attorney contacted accepted the case and on September 27, 2000, I entered an order appointing counsel. Defendants filed a motion for summary judgment; plaintiff has filed a responsive brief and affidavits and defendants have filed a reply and exhibits. For the reasons which follow, defendants' motion for summary judgment is granted.

Summary judgment is appropriate if the court finds that 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). There is no genuine issue of material fact where the nonmoving party fails "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989).

All reasonable doubts as to the existence of genuine issues of fact must be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences can be drawn, summary judgment is inappropriate. Sankovich v. Insurance Company of North America, 638 F.2d 136, 140 (9th Cir. 1981).

(1) Adequacy of Medical Treatment

On April 9, 1999, plaintiff was arrested and booked into the Harney County Correctional Facility. There is no dispute that plaintiff has a significant seizure disorder which constitutes a "serious" medical need that requires medication. There is also no dispute that Harney County Jail officials were made aware of the plaintiff's condition and his need for medication at the time of plaintiff's arrest. There is also no dispute that plaintiff's wife delivered his medication to the jail shortly after plaintiff's arrest and that she advised jail officials of the necessary dosage schedule.

On April 11, 1999, plaintiff suffered a grand mal seizure and fractured his right heel. He was treated at the jail facility and then transported to a hospital. Plaintiff was given and air splint and a brace. While plaintiff initially complained about the failure of jail officials to send him to his regular treating physician, plaintiff does not contend that he received constitutionally inadequate treatment relative to his heel fracture. The parties agree that the legal standard applicable to plaintiff's claim of inadequate medical treatment is that of deliberate indifference to serious medical needs. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 1998).

Plaintiff now concedes that he was provided with crutches to use after his seizure and that he discarded them. Plaintiff explains that his left clavicle had been removed years prior following an auto accident, so he was unable to support himself on crutches. Plaintiff acknowledges that he was given a walker which he used until his foot injury healed. Thus, the fact that jail personnel removed plaintiff's crutches after he discarded them cannot support a claim for denial of medical treatment.

Plaintiff's second medical treatment claim is based upon his speculation that the grand mal seizure he suffered on April 11, 1999, was triggered by defendants' failure to provide him with his medication. In his affidavit, plaintiff concedes that he has little recollection of events immediately preceding his seizure. Plaintiff admits that he has had seizures despite his medication. Plaintiff submits an affidavit from his treating neurologist, Dr. Richard Koller, who explains that if plaintiff was not given his medication for more than 24 hours, "he would likely suffer a grand mal seizure."

With their reply, defendants have proffered a medication chart which indicates that plaintiff was provided with his medication between his admission on April 9, 1999 and his seizure on April 11, 1999. Plaintiff initialed each entry. Defendant Betty Enneberg, a former corrections officer with Harney County, confirms the accuracy of the medical chart. Further, the handwritten entries on the medical chart are consistent with the computer's medical records as reflected in the Facility's "Blotter History."

Based upon the foregoing, I find that the undisputed evidence establishes that plaintiff was in fact given all of his prescribed medication. Thus, his claim for deliberate indifference must fail in this regard.

Plaintiff's final claim regarding medical treatment is premised upon his assertion that, following his foot injury, he should have been assigned to a particular cell that was furnished with a table and chair. Plaintiff contends that such a cell assignment would have made it easier for him during meal times. Plaintiff proffers no medical evidence that such an assignment was a necessary part of his rehabilitation, nor does he claim or assert that his regular cell assignment in any way exacerbated his medical condition.

Based upon the foregoing, the court finds that plaintiff has failed to raise any supportable claim for denial of adequate medical care.

In my Opinion of August 1, 2000, I advised plaintiff as follows:

"[p]risoners have a limited right to bodily privacy which may be impinged upon if the action is reasonably related to legitimate penological interests. Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988). Plaintiff is further advised that infrequent and casual observations, or observation from a distance, by female guards of inmates in a state of undress does not violate the constitution. Id. at 334."

In response to defendants' motion for summary judgment, plaintiff relies solely upon his generalized assertion that defendant Enneberg viewed him using the toilet on "several" occasions throughout his twenty month period of incarceration. Plaintiff offers no specific details, save a single instance in which plaintiff claims that he asked Enneberg to stop watching him and Enneberg allegedly responded, "[W]hy? It all smells the same." Plaintiff does not claim that Enneberg entered his cell to watch him, nor does he claim that her observations took place with any regularity. The single incident in which Enneberg allegedly made a comment that plaintiff found offensive is insufficient, standing alone, to give rise to a constitutional violation. Thus, accepting plaintiff's allegations as true, he fails to state a claim for a denial of privacy rights.

Based upon the foregoing, I find that no genuine issues of material fact exist relative to any of plaintiff's remaining claims for relief. Accordingly, I need not address defendants' alternative arguments for summary judgment based upon qualified immunity. Defendants' motion for summary judgment (#97) is GRANTED.

IT IS SO ORDERED.