IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON. 

DENNIS JAY WARREN, 

Plaintiff, 

v. 

CORIZON HEALTH, et al., 

Defendants 

JONES, District Judge: 

PORTLAND DIVISION 

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3:15-cv-00161-JO 

OPINION AND ORDER 

Plaintiff Dennis Wanen, acting prose, sued Corizon Health, Inc., Washington County, and 

Colin Storz, P.A., under 42 U.S.C. § 1983. Warren alleges that Defendants violated his Eighth 

Amendment rights by acting with deliberate indifference to his medical needs while he was 

incarcerated in Washington County Jail. He seeks monetmy damages in the sum of $5,000 and 

injunctive relief. Defendants' motion for summary judgment [Doc # 21) is now before the comi. 

For the following reasons, Defendants' motion is GRANTED. 

1 - OPINION AND ORDER 

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BACKGROUND 

The following factual background is undisputed. Beginning October 6, 2014 and at all times 

relevant to this motion, WmTen has been an inmate at Washington County Jail. Upon arrival, 

W atTen underwent a medical screening and reported that, before incarceration, he had been taking 

Phenobarbital, Prozac, and Qvar Albuterol prescribed by an outside doctor. The next day, defendant 

Storz initiated prescriptions for those medications in order to provide continuity. Storz contacted 

the outside pharmacy Wmrnn identified, which confirmed that WatTen had recently filled 

prescriptions for those medications. Storz also checked Warren's serum level of Phenobarbital. 

During his medical intake screening, Wa11'en did not mention facial pain. On October 15, 

2014, Warren first requested ibuprofen for facial pain. Warren received a short term prescription 

for ibuprofen to use as needed. On October 25, 2014, a nurse told WmTenhe could obtain ibuprofen 

without a prescription from the commissary free of charge to treat his intermittent facial pain as 

needed. Soon after, Wa11'en complained ofleft-sided facial pain that ibuprofen did not relieve, and 

a nurse gave him a short-term prescription for Naprosyn. 

Defendant Storz examined Warren on November 3, 2014, in the Chronic Care Clinic. 

Wanen said he had experienced intense but intermittent nerve pain in the left side of his face .since 

having surge1y after trauma in the distant past. Storz prescribed Naprosyn as needed for 30 days. 

When Wanen requested renewal of the Naprosyn prescription, however, Storz declined and advised 

WatTen to obtain ibuprofen from the commissary. Wa11'en submitted several additional health care 

requests, seeking a prescription for Naprosyn, but these were denied by medical staff at the jail 

including Storz, nurses, and an on-site physician, Dr. Radostitz, all of whom advised Warren to 

2 - OPINION AND ORDER 

Case 3:15-cv-00161-JO Document 35 Filed 09/29/15 Page 2 of 8
obtain over-the-counter NSAIDs such as ibuprofen, Tylenol, or Motrin from the commissaiy on an 

as-needed basis. 

On December 26, 2014, a nurse examined Wanen for facial pain and gave him a five day 

prescription for Naprosyn. On January 5, 2015, Dr. Radostitz examined Wanen and approved 

another prescription for Naprosyn. On February 4, 2015, Dr. Radostitz examined Warren, and 

approved a 30-day prescription for Naprosyn. 

Warren alleges the foregoing treatment hist01y demonstrates that defendants acted with 

deliberate indifference to his medical needs. Specifically, Wanen claims that defendant Storz 

prescribed inappropriate medication for a month when Wanen anived at the jail, and subsequently 

refused to prescribe Naprosyn in accordance with his many health care requests. 

Defendants moved for summaiy judgment, contending that W atTen failed to exhaust his 

available administrative remedies before filing suit, and failed to show any violation of his Eighth 

Amendment rights by any of the defendants. 

STANDARD OF REVIEW 

The district court should grant summary judgment if there are no genuine issues of material 

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

moving party shows that there are no genuine issues of material fact, the non-moving patty must go 

beyond the pleadings and designate facts showing an issue for trial. Celotex Cmp. v. Catrett, 477 

U.S. 317, 322-23 (1986). A scintilla of evidence, or evidence that is merely colorable or not 

significantly probative, does not present a genuine issue of material fact. United Steelworkers of 

America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). Reasonable doubts as to the 

existence of a material factual issue are resolved against the moving party and inferences drawn from 

3 - OPINION AND ORDER 

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facts are viewed in the light most favorable to the non-moving party. T. W. Elec. Serv. v. Pac. Elec. 

Contractors, 809 F.2d 626, 630-31 (9th Cir. 1987). 

DISCUSSION 

I. Exhaustion of Remedies 

The Prison Litigation Refo1m Act requires prisoners to exhaust available administrative 

remedies before commencing an action under Section 1983. 42 U.S.C. § 1997e(a). The statute says 

that, 

[n]o action shall be brought with respect to prison conditions under 

Section 1983 of this title, or any other Federal law, by a prisoner 

confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted. 

42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is a mandatmy prerequisite and not 

a discretionaty matter for the court. j\IcKinney v. Carey, 311 F.3d 1198, 1199 (91

h Cir. 2002). 

Claims for which an inmate has failed to exhaust administrative remedies cannot be brought in court. 

Jones v. Bock, 549 U.S. 199, 211 (2007). 

Washington County Jail has an internal grievance process through which inmates can submit 

complaints and seek resolution of issues regarding conditions of confinement, including issues 

involving medical care. This grievance process is described in an Inmate Manual provided to each 

inmate upon anival. Wanen was aware of the grievance procedure and used it to challenge his 

security classification. Warren did not, however, file a single grievance related to his claims that he 

received inappropriate medications from Storz on arrival at Washington County Jail, that his requests 

for Naprosyn were improperly declined, or any other matter alleged in his complaint. 

4 - OPINION AND ORDER 

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Because Warren failed to exhaust remedies, his claims are not properly before the comi and 

must be dismissed. Generally, when the district court finds that a prisoner failed to exhaust all 

available administrative remedies, it should dismiss without prejudice. Wyatt v. Terhune, 315 F.3d 

1108, 1120 (9'h Cir. 2003). As shown below, however, there is no genuine issue of any material fact 

regarding the merits of Warren's claims and defendants are entitled to judgment. 

II. No Vicarious Liability 

A local government or municipality cannot be held liable solely because of its employeremployee relationship with the alleged to1ifeasor under a theory of respondeat superior. lvlonell v. 

Dep't of Soc. Servs, 436 U.S. 658, 691 (1978). A local govemmental entity can be liable under 

section 1983 only if the alleged constitutional violation is caused by an official policy, practice, or 

custom of the entity. i1Jonell at 694; Doughertyv. City of Covina, 654 F.3d 892, 900 (91

h Cir. 2011). 

Accordingly, to make out a claim against Washington County, Warren must show that a 

constitutional violation occurred and was caused by an official county policy. 

This rule also applies to claims against a private entity acting under color of state law. Tsao 

v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9'h Cir. 2012). Accordingly, to make out a claim against 

Corizon Health under section 1983, Warren must show that a constitutional violation was caused by 

an official policy or practice of Corizon Health. 

Although Warren named Corizon Health and Washington County as defendants, he did not 

allege that he was injured through the operation of an official policy of either defendant. His 

complaint alleges only episodes of allegedly inadequate medical care provided by defendant Storz. 

Those allegations cannot support claims against Washington County or Corizon Health under section 

1983. Accordingly, defendants Washington County and Corizon Health are entitled to judgment. 

5 - OPINION AND ORDER 

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III. Eighth Amendment 

Jail officials, including medical staff, violate the Eighth Amendment when they act with 

deliberate indifference to the serious medical needs of a prisoner in the custody of the jail. Estelle 

v. Gamble, 429 U.S. 97, 104-106 (1976). Wmrnn alleges that Storz acted with deliberate 

indifference by prescribing inappropriate medications when Wanen anived at Washington County 

Jail and by declining Wanen's requests for a Naprosyn prescription between November 24, 2014 and 

December 26, 2014. 

Deliberate indifference is a culpable state of mind on the part of the health care provider that 

is equivalent to "criminal recklessness." Farmer v. Brennan, 511U.S.825, 837 (1994). Inadve1tent 

or negligent failure to provide adequate medical care is not sufficient to state a claim under section 

1983. Jett v. Penner, 439 F.3d 1091, 1096 (9'h Cir. 2006). The health care provider must know of 

and disregard an excessive risk to the inmate's health or safety. Farmer at 837. The plaintiff must 

show that the defendant health care provider's action or failure to act in response to a serious medical 

need was purposeful and caused harm. Jett, 439 F.3d at 1096. 

Warren has not alleged facts that would support a claim that Storz acted with deliberate 

indifference to Wanen's medical needs by prescribing inappropriate medications when Warren 

anived at Washington County Jail. Storz made himself aware of Warren's prescription needs by 

asking Wanen about his current prescriptions and confirming them with the outside phannacy that 

had filled them. Storz continued those prescriptions and tested Warren's serum levels to ensure 

proper dosage. W mTen did not allege any harm from the continuity of care Storz provided. If all of 

the facts Wanen asserts are proved, they would show only diligent appropriate treatment regarding 

Warren's prescriptions. 

6 - OPINION AND ORDER 

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Wa!Ten has not alleged facts that would support a claim that Storz acted with deliberate 

indifference to Wanen's medical needs by declining to prescribe Naprosyn on a scheduled basis for 

Wa1Ten's intermittent facial pain. WatTen's allegations do not show a serious medical need for 

treatment with Naprosyn, because similarly effective NSAIDs were readily available to him from 

the commissary. Accordingly, Storz's withholding Naprosyn prescriptions did not result in 

significant iJ1iury or the wanton infliction of pain. 

Nor do Wanen's allegations show that Storz acted with deliberate indifference. Storz 

reasonably declined to provide Wanen with scheduled prescriptions for legitimate medical reasons, 

including that Wanen reported only intermittent pain which could be treated with similarly effective 

over-the-counter analgesics that were readily available on an as-needed basis, that chronic use of 

Naprosyn has potential side effects to which Warren was especially susceptible because he suffers 

from hepatitis C, and that prescribing on a scheduled basis posed a risk of overdose. In addition to 

legitimate health concerns, the facility had legitimate interests in avoiding hoarding and unauthorized 

distribution of prescription medications by inmates. In short, Warren has not alleged facts that show 

Storz acted with deliberate indifference to Warren's medical needs. 

CONCLUSION 

Resolving all reasonable doubt as to the existence of a material factual issue in Warren's 

favor and viewing all reasonable inferences that can be drawn from the facts in the light most 

favorable to him, I am satisfied that Wanen has failed to designate facts showing an issue to be 

resolved at trial and that defendants are entitled to judgment as a matter of law. 

7 - OPINION AND ORDER 

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ORDER 

For the foregoing reasons, defendants' motion for summaiy judgment [Doc # 21] 1s 

GRANTED. Any remaining pending motions are denied as moot. 

IT IS SO ORDERED. 

o-i-1.- DATED this _lll_'-1 day of September, 2015. 

8 - OPINION AND ORDER 

es 

ates District Judge 

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