PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL WESLEY,

Plaintiff,

v.

DR. GULICK, Nurse BUTLER, Male Nurse 

Doe, NURSE NEIL, Dr. STEVEN 

SHELTON, Nurses Jane and John Does 1-

10

Defendants.

Case No. 3:15-cv-440-SB

OPINION AND ORDER

Michael H. Simon, District Judge.

United States Magistrate Judge Stacie Beckerman issued Findings and Recommendation

(“F&R”) in this case on August 25, 2017. ECF 42. Judge Beckerman recommended that 

Defendants’ summary judgment motion (ECF 31) be granted as to both of Plaintiff’s claims. 

Judge Beckerman also made recommendations on preliminary procedural matters raised in 

Defendants’ motion (ECF 31) and Plaintiff’s response (ECF 37). Judge Beckerman 

recommended that Defendants’ motion to dismiss claims asserted against all Doe nurses be 

granted, that service by Plaintiff on Defendants be found proper, that both Plaintiff’s and 
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Defendants’ motions to strike be denied, and that Defendants’ motion to dismiss Plaintiff’s 

claims relating to treatment in 2010 be granted as time barred. 

DISCUSSION

A. Standards 

Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in 

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. 

§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court 

shall make a de novo determination of those portions of the report or specified proposed findings 

or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). 

For those portions of a magistrate’s findings and recommendations to which neither party 

has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 

140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require 

a district judge to review a magistrate’s report to which no objections are filed.”); United States. 

v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must 

review de novo magistrate’s findings and recommendations if objection is made, “but not 

otherwise”). Although in the absence of objections no review is required, the Magistrates Act 

“does not preclude further review by the district judge[] sua sponte . . . under a de novo or any 

other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. 

P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate’s 

recommendations for “clear error on the face of the record.”

B. Plaintiff’s Objections

Plaintiff timely filed an objection (ECF 44), to which Defendants responded (ECF 45).

Plaintiff’s primary objection is that the F&R purportedly shifts the burden of proof from 

Defendants to Plaintiff, arguing that the F&R improperly required Plaintiff to prove his case, 
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which is a higher burden than is required for a plaintiff to respond to a motion for summary 

judgment. Plaintiff objects specifically to the following conclusions:

“Wesley has failed to produce sufficient evidence to support a 

negligence claim resulting from Nurse Neill’s March 27, 2013 

catheter change, let alone to support a finding that any of the 

Defendants acted with gross negligence or deliberate indifference 

to his serious medical needs.” ECF 42 at 25. 

“Wesley has not submitted any evidence to support a conclusion 

that Defendants were deliberately indifferent to his serious medical 

needs in connection with [the May 2013] catheter change, or his 

routine medical care.” ECF 42 at 26. 

“Wesley has not submitted any expert or other medical evidence to 

demonstrate a material issue of fact regarding the appropriate 

standard of care, or that Defendants breached the standard of care, 

and therefore he has not met his burden to survive summary 

judgment.” ECF 42 at 27. 

Plaintiff also objects to the recommendation not to strike Dr. Steven Shelton’s 

declaration, and the F&R’s reliance on that declaration in making other findings and 

recommendations. Plaintiff further objects to several factual findings, including the dates and 

number of successful catheter changes, and the finding that administering antibiotics to which 

Plaintiff had a known allergy was within the standard of care. This Court has reviewed de novo

the objected-to portions of the F&R as well as Plaintiff’s objections, Defendants’ response, the 

underlying briefing before Judge Beckerman, and the summary judgment record. 

This Court agrees with the F&R’s reasoning and conclusions in recommending not to 

strike Dr. Shelton’s declaration and adopts that portion of the F&R. Plaintiff argues that 

Dr. Shelton’s declaration should be stricken because his testimony does not meet the

requirements to qualify as expert testimony under Rule 702 of the Federal Rules of Evidence as 

set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). First, Daubert

and its progeny are consistent with the rule that “an expert might draw a conclusion from a set of 
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observations based on extensive and specialized experience.” Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 156 (1999). Dr. Shelton’s declaration is based on his extensive 

experience as the Oregon Department of Corrections medical director and his observation of 

Plaintiff’s medical chart. Moreover, Plaintiff’s reliance on Daubert at this stage in litigation is 

misplaced. At summary judgment, parties need not produce evidence that would be admissible at 

trial, so long as the party satisfies the requirements of Rule 56 of the Federal Rules of Civil 

Procedure. See Block v. City of Los Angeles, 253 F.3d 410, 418-21 (9th Cir. 2001). Rule 56(c)(4) 

requires that declarations used to support or oppose a motion for summary judgment must be 

made on personal knowledge, set out facts that would be admissible in evidence, and show that 

the declarant is competent to testify on the matters stated. Fed. R. Civ. P.56(c)(4). For the 

reasons stated in the F&R, Dr. Shelton’s declaration meets these requirements, and reliance on 

the declaration is appropriate. 

This Court also adopts the portion of the F&R recommending that summary judgment be 

granted for Defendants on Plaintiff’s Eighth Amendment claim. Plaintiff has not raised a genuine 

question of material fact as to whether Defendants were deliberately indifferent to Plaintiff’s 

serious medical needs. The F&R stated and applied the correct burden of proof upon the parties 

at summary judgment. Summary judgment is appropriate if the evidence, viewed in the light 

most favorable to the non-moving party, demonstrates that there is no genuine issue of material 

fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); 

Celotex Corp. v. Catrett, 477 U.S. 37, 322 (1986). Although the initial burden is on the moving 

party to demonstrate that there is no genuine issue of material fact, the nonmoving party must 

then present sufficient evidence to establish that there is a genuine issue for trial. “Where the 

record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, 
PAGE 5 – OPINION AND ORDER

there is no ‘genuine issue for trial’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 487 (1986) (citation omitted). In Eighth Amendment claims for inadequate medical 

care, a plaintiff must demonstrate that a defendant was deliberately indifferent to the plaintiff’s 

serious medical need. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). Plaintiff established 

that he has objectively serious medical needs. In order to survive a motion for summary 

judgment, therefore, Plaintiff must raise a genuine issue of material fact as to whether 

Defendants’ response to his serious medical needs was deliberately indifferent.

Plaintiff argues that the F&R mischaracterized Plaintiff’s medical chart in observing that 

35 of 39 catheter replacements took place within four weeks of the previous replacement, as 

prescribed, and that 37 of 39 catheter replacements were otherwise uneventful. Plaintiff asserts

that the entirety of his record reflects much more serious lapses in care, sufficient to raise a 

genuine question as to whether Defendants were deliberately indifferent to Plaintiff’s medical 

needs. Plaintiff, however, does not identify more than four instances where the catheter changes 

were more than four weeks apart. And the additional catheter replacements that Plaintiff 

maintains should have been considered “eventful” were early catheter changes that Plaintiff 

requested because the catheter was not draining properly. Rather than demonstrating deliberate 

indifference, Defendants’ medical chart indicates that Snake River Correctional Institution 

(“SRCI”) medical personnel responded promptly to Plaintiff’s complaints of a defective catheter. 

The other medical incidents that Plaintiff contends were overlooked in the F&R, such as urinary 

tract infections (“UTIs”) and bladder spasms, are, per Plaintiff’s affidavit, complications arising 

from his status as a T4/T5 paraplegic. ECF 38 at 2: ¶ 6. The medical staff at SRCI prescribed 

Plaintiff antibiotics for his UTIs and arranged for Plaintiff to see an outside specialist to address 

the frequency of Plaintiff’s bladder infections. The occurrence of these complications and 
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Defendants’ responses to them, therefore, are insufficient to establish a genuine issue of whether

Defendants were deliberately indifferent to Plaintiff’s serious medical needs.

Plaintiff was prescribed antibiotics to which he had a known allergy twice: once in 

June 2010 and once in March 2015. Plaintiff had allergic reactions to antibiotics at other points 

during his incarceration, but there is no indication that his allergies to those antibiotics were 

known at the time they were prescribed. Judge Beckerman recommended—and Plaintiff does not 

object—that Plaintiff’s claims arising from his treatment in 2010 be dismissed as time barred. 

This Court has reviewed that recommendation for clear error. No such error is apparent, and 

Plaintiff’s claim arising from his 2010 treatment is therefore time-barred. Were it not, the 2010 

prescription would nevertheless not support an inference of deliberate indifference. A difference 

of opinion between a physician and the inmate does not amount to deliberate indifference unless 

the plaintiff demonstrates that the prison doctors chose a course of treatment that was “medically 

unacceptable under the circumstances,” and that such a choice was made “in conscious disregard 

of an excessive risk to plaintiff’s health.” Colwell v. Bannister, 763 F.3d, 1060, 1068 (9th 2014)

(citing Snow v. McDaniel, 681 F.3d 978, 987 (9th 2012)). Dr. Shelton asserted, and Plaintiff does 

not rebut, that only two antibiotics would have been effective to treat Plaintiff’s infection, and of 

those two, the only one available was Cipro, to which Plaintiff is allergic. ECF 34-1 at 7. 

Plaintiff’s healthcare provider was forced to choose between prescribing an antibiotic that he 

knew may give Plaintiff hives, ECF 34-2 at 48, and leaving Plaintiff’s UTI untreated. Given 

Plaintiff’s history of sepsis, and the danger posed to him by UTIs, his healthcare provider’s 

response was neither “medically unacceptable under the circumstances,” nor “in conscious 

disregard of an excessive risk to Plaintiff’s health.”
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On March 24, 2015, Plaintiff was accidentally, rather than deliberately, prescribed an 

antibiotic to which he was allergic. Plaintiff was prescribed Augmentin to treat a UTI, despite a 

note in his chart that Plaintiff was allergic to that antibiotic. Approximately 36 hours after 

Plaintiff was prescribed the antibiotic, the pharmacy alerted the nurse on duty that Plaintiff had 

been improperly prescribed the drug. Plaintiff was promptly evaluated for an allergic reaction 

and given a new prescription. ECF 34-1 at 9. The improper prescription was an accident. “An 

accident, although it may produce added anguish, is not on that basis alone to be characterized as 

wanton infliction of unnecessary pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). Though the

prescription may have been careless, even negligent, Defendants’ quick response once the 

mistake was identified does not support an inference that Defendants wantonly inflicted 

unnecessary pain. Considering the record as a whole, and construing all inferences in Plaintiff’s 

favor, this Court agrees with the F&R that Plaintiff has not raised a genuine question as to 

whether Defendants were deliberately indifferent to Plaintiff’s serious medical needs. Summary 

judgment for Defendants on Plaintiff’s claim for a violation of his Eighth Amendment rights is 

proper. 

The Court, however, does not adopt the portion of the F&R relating to Plaintiff’s 

negligence claim. The Court finds that Plaintiff has raised a genuine question as to the standard 

of care in replacing a catheter and whether Defendants breached that standard. In medical 

negligence cases, expert testimony is generally necessary to establish the standard of care, which 

is determined by the reasonable practice in the community. See, Getchell v. Mansfield, 260 Or.

174, 179 (1971) (“In most charges of negligence against professional persons, expert testimony 

is required to establish what the reasonable practice is in the community.”). Thus, although 

Plaintiff need not prove the standard of care, Plaintiff must present expert testimony as to these 
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elements in order to raise a genuine issue of fact as to whether Defendants breached the standard 

of care. See Thompson v. Luna, 441 F. App’x 528, 529 (9th Cir. 2011) (holding that the “district 

court properly granted summary judgment on [the plaintiff’s] state law claims because [the 

plaintiff] failed to rebut with expert medical testimony defendants’ showing that they met the 

appropriate standard of care . . .”). 

Expert testimony can include both testimony from experts retained specifically for the 

purpose of litigation, who must make pre-trial disclosures establishing the basis of their expertise 

and opinion, see Fed. R. Civ. P. 26(a)(2)(B), and other experts, often treating physicians, who 

need not make similar disclosures, see Fed. R. Civ. P. 26(a)(2)(C). Though not hired as an expert 

witness by Plaintiff, Dr. Thomas Bristol, as an SRCI treatment provider and frequent treating 

physician of Plaintiff, is qualified to give an opinion on the reasonable practices in the medical 

community for catheter insertions. See ECF 39-29 (Deposition of Dr. Bristol) at 21:9-24:1

(discussing catheter insertion process in detail).

In his deposition testimony, Dr. Bristol adopted the statement that it would “be something 

of a warning” if a catheter balloon normally accepts six cubic centimeters of saline and will only 

take four cubic centimeters. Id. at 24:11-16. He further opined that “if there’s something in the 

procedure that happens that’s unusual, unexpected, you’re going to re-evaluate what’s going on” 

and that he “might want to deflate and move the catheter and readjust.” Id.at 25:2-5. Viewing the 

facts in the light most favorable to Plaintiff, Dr. Bristol’s statements are sufficient to raise a 

genuine question as to whether a reasonable nurse should have known that there was a problem 

with the catheter insertion when the balloon refused to take more than four cubic centimeters of 

saline, and taken measures to confirm that the insertion was proper. Plaintiff asserts in his 

affidavit that Defendant Neill acknowledged that the balloon would take only four cubic 
PAGE 9 – OPINION AND ORDER

centimeters of saline, but took no steps to confirm that the insertion was proper. Thus, Plaintiff 

has raised a genuine question as to whether Defendant Neill breached the standard of care. 

Defendants, therefore, have not demonstrated that they are entitled to summary judgment on 

Plaintiff’s negligence claim.

For the remaining portions of the F&R, to which neither party has objected, this Court 

follows the recommendation of the Advisory Committee and reviews those matters for clear 

error on the face of the record. No such error is apparent.

C. Supplemental Jurisdiction

Because this order dismisses Plaintiff’s sole federal claim, there remains a question of 

whether the Court should retain supplemental jurisdiction over Plaintiff’s remaining state law 

claim. A district court may decline to exercise supplemental jurisdiction over state-law claims if 

it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 1367(c)(3). 

Moreover, when a district court dismisses all federal-law claims before trial, “the balance of the 

factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, 

fairness, and comity—will point toward declining to exercise jurisdiction over the remaining 

state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, (1988); Acri v. 

Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc ) (“The Supreme Court has 

stated, and we have often repeated, that ‘in the usual case in which all federal-law claims are 

eliminated before trial, the balance of factors . . . will point towards declining to exercise 

jurisdiction over the remaining state-law claims’”) (citation omitted).

The Court finds that the factors of judicial economy, convenience, and fairness weigh in 

favor of the Court declining to exercise supplemental jurisdiction. State court is a convenient 

forum for the parties, and declining to exercise supplemental jurisdiction respects the values of 

federalism and comity. There is no purpose to be served by the federal court exercising 
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supplemental jurisdiction over the state law medical negligence claim, and the Court declines to 

do so. Accordingly, Plaintiff’s state-law claim is dismissed, without prejudice, and with leave to 

refile in state court.

CONCLUSION

The Court ADOPTS IN PART the F&R (ECF 42), as supplemented herein. Defendants’ 

Motion for Summary Judgment (ECF 31) is GRANTED in part and DENIED in part. The 

motion is granted as to Plaintiff’s § 1983 claim, and that claim is dismissed with prejudice. The 

motion is denied as to Plaintiff’s negligence claim. The Court, however, declines to exercise 

supplemental jurisdiction over Plaintiff’s remaining negligence claim under state law. That claim 

is dismissed without prejudice. Under 28 U.S.C. § 1367(d), the statute of limitations on 

Plaintiff’s state law negligence claim is tolled while the claim is pending and until thirty (30) 

days after the filing of this Opinion and Order of dismissal, thus allowing Plaintiff time to file a 

new action in state court, if he chooses, without a lapse of his rights. Defendants’ motion to 

dismiss claims against all Doe nurses is granted. Defendants’ motion to strike is denied. 

Defendants’ motion to dismiss Plaintiff’s claims relating to treatment in 2010 is granted. 

Plaintiff’s motions to strike (ECF 37) are denied.

IT IS SO ORDERED.

DATED this 30th day of October, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge