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Jones v. Alvarez

United States District Court, Ninth Circuit

July 1, 2013

Craig Murray Jones, Plaintiff,
Jeff Alvarez, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Plaintiff Craig Murray Jones, who is confined in Maricopa County's Fourth Avenue Jail in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Plaintiff later filed a motion for appointment of counsel, a supplement, declarations, a notice, and affidavits. (Doc. 5-11.) The Court will order Defendants Barker, Gaskins, and Johnson to answer Count I of the Complaint and will dismiss the remaining Defendants without prejudice. The Court will deny Plaintiff's motion and other filings to the extent that any relief is sought therein.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id . (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

III. Complaint

Plaintiff alleges one count for denial of constitutionally-adequate medical care. Plaintiff sues 29 Defendants, who work, or worked, for Maricopa County's Correctional Health Service (CHS). They include the following named Defendants: Medical Director Jeff Alvarez, M.D.; External Hearing Officer Lourdes Hernandez; Risk Management Division Supervisor John Doe; Health Care Provider (HCPs) Drs. Richard D. Friedman (CH102), Monica Gaskins (CH109), Craig Belcourt, Ian Kramer, and Unknown First Name Davis; Physician's Assistants (PAs), Matt Barker (CH038), Barry Johnson (CH106), and Erica Saretsky (CS121)[1]; and Licensed Practical Nurse (LPN) Pam Brooks (CH718).[2] Plaintiff also sues 12 staff-members whom he labels "triage nurses" and whom he identifies as John Doe with their badge or employee numbers: LS865, CS995, CS959, CS157, CS533, RT125, CH606 or 686, CH741, HS556, HS217, CS565, and HS212. Plaintiff sues another four John Does who responded to certain Health Needs Requests (HNRs) by the control numbers on those HNRs, as follows, Doe 138776, Doe 182045, Doe 182409, and Doe 185336.[3] Finally, Plaintiff sues an Evening Pill Pass Nurse named Norma, whom he identifies as John Doe (hereafter Norma Doe). Plaintiff seeks injunctive, compensatory, and punitive relief.

Plaintiff alleges the following facts in his Complaint: Plaintiff is a 60-year old seriously mentally ill (SMI) inmate.[4] On October 5, 2010, prior to incarceration, Plaintiff was involved in a car accident that resulted in cervical, thoracic, and lumbar sprain or strain; disc displacement; myalgia/hypertonicity; neuralgia; neuritis; radiculitis; and lumbar intervertebral disc disorder. Prior to confinement, Plaintiff received physical therapy and narcotic pain relievers, which significantly or substantially alleviated continuing pain as a result of his injuries. Since June 23, 2011, Plaintiff has been incarcerated in Maricopa County jails and the balance of his allegations primarily concern his repeated requests for treatment of pain stemming from the physical injuries he suffered in the October 5, 2010 accident.

Upon arrival at the Fourth Avenue Jail, Plaintiff informed "intake" that he was SMI and that he had missed several doses of psychiatric medications because of his detention and, shortly thereafter, apparently notified staff of his back injuries.[5] On June 26, 2011, Plaintiff submitted an HNR complaining of severe pain as a consequence of the 2010 accident and stating that available medical records would document his injuries. "Defendant John Doe # ___" evaluated Plaintiff but did not "address" Plaintiff's pain by, for example, giving Plaintiff hot-packs or rubbing cream, nor did he request Plaintiff's medical records. (Doc. 1 at 3C.) In a June 30, 2011 HNR, Plaintiff reported that he was in serious pain and asked to see a doctor. "John Doe # ___" responded to this HNR, but did not address Plaintiff's pain. (Id.) On July 7, 2011, Plaintiff, in tears, pleaded with Defendant Doe CS995 to help him with his pain; Doe CS995 provided him a blanket.

In a July 19, 2011 HNR, Plaintiff again reported that he was suffering from serious pain and asked why he had not been seen by a doctor for his back. "John Doe # ___" passed the HNR on to someone else without attempting to alleviate Plaintiff's pain to the extent that Doe could. (Id.) On July 30, 2011, Plaintiff's pain caused him to vomit. Plaintiff submitted another HNR again asking to see a doctor concerning his pain. "John Doe # ___" again passed the HNR on to someone else. (Id.)

In an August 8, 2011 HNR, Plaintiff pleaded for pain relief and to see a doctor until CHS obtained his medical records. According to Plaintiff, "John Doe # ___" could have done "something, " but did not. (Id.) Plaintiff sent for his medical records himself because his pain was becoming unendurable and the continued lack of treatment was reversing progress he had made prior to incarceration. Plaintiff received HNR responses stating that he was scheduled to see a doctor, but Plaintiff claims that he did not.

On October 3, 2011, Plaintiff brought his medical records to an appointment at which he was seen by HCP "John Doe # ___". (Id.) "John Doe # ___" referred Plaintiff to an outside orthopedic specialist, but he did not alleviate Plaintiff's pain and "ignored" Plaintiff's medical records. (Id. at 3C-3D.) Plaintiff contends that "John Doe # ___" could have prescribed over-the-counter pain relievers, but did not. (Id.) Plaintiff does not allege that he requested pain medication or that he was unable to purchase over-the-counter pain relievers from the commissary.

On October 12, 2011, Plaintiff was evaluated by an outside orthopedic specialist who ordered Ultram, a non-narcotic analgesic, [6] and Flexeril, a muscle relaxant, [7] Baclofen[8], and epidural injections. In an October 15, 2011 HNR, Plaintiff reported that he had seen an outside the orthopedic specialist, who had issued written recommendations for treatment, and asked if he was going to be seen for his serious pain. Staff member RT251 responded "Follow up appt. with ortho scheduled." (Id. at 3D.)

In a November 1, 2011 HNR, Plaintiff reported that Ultram and Baclofen were not effective in alleviating his pain and that Flexeril had never been dispensed.[9] In a November 5, 2011 response, Defendant Barker informed Plaintiff that Ultram and Baclofen were being discontinued based on Plaintiff's report that they were ineffective. (Id.) Plaintiff apparently then complained about the failure to prescribe alternative medications, such as those he had taken prior to his incarceration, which had been effective. (Id.) "John Doe #___" responded by telling Plaintiff that he was "saying the same thing." (Id.) Plaintiff contends that Doe ignored the record and failed to investigate the situation enough to make an informed decision.

In a December 1, 2011 HNR, Plaintiff sought a referral for epidural injections recommended by the outside specialist on October 10, 2011. Defendant Doe CH606 (or 686) responded that Plaintiff was scheduled to be seen. Plaintiff contends that Doe CH606 should have been aware from Plaintiff's medical records of the severe pain he was suffering, that prior effective pain treatment had ended upon his incarceration, and that there had been significant delay since the injections had been recommended. On December 26, 2011, after still not having been seen since his December 1 HNR, Plaintiff submitted an HNR in which he reported that his pain was "unbearable" and asked to be informed of the status of the scheduled appointment. (Id.) Defendant Doe CS157 responded that "Your M.R.I. was done Dec. 20, 2011, Please be patient" and that "Your appointment is comming [sic]." (Id.) Because he had not received an MRI in December 2011, Plaintiff feared that CS157 was referring to another inmate's MRI or was referring to Plaintiff's pre-incarceration MRI, which would not show any degenerative changes since incarceration. On December 29, 2011, Doe RT984 clarified that CS157 had referred to Plaintiff's pre-incarceration MRI. In a December 30, 2011 HNR, Plaintiff reported that he was considering legal action due to the delay in treatment for his serious pain. Defendant Doe CS157 responded that Plaintiff had an appointment scheduled.

On January 13, 2012, "John Doe #___" prescribed Plaintiff Soma, a non-narcotic muscle relaxant, for 30 days. (Id. at 3E.) Plaintiff was told to submit an HNR requesting "renewal" before the end of the 30 days. Soma significantly reduced Plaintiff's pain level and Plaintiff did not submit HNRs concerning his pain while he received Soma.

In a February 8, 2012 HNR, Plaintiff requested a renewal of the Soma prescription, which was due to expire on February 14, 2012. Although Plaintiff had not complained of pain while taking Soma, Defendant Barker denied the renewal without providing an alternative medication for pain.

By February 12, 2012, Plaintiff was again suffering serious pain after Soma was discontinued.[10] Plaintiff asked that it be renewed or to see a doctor. Defendant Doe CH741 responded that "Soma renewal was denied by provider on 2/9/2012." (Id.) On February 14, 2012, Plaintiff "made it clear to CHS" that the discontinued "meds" had been working well and that he had been able to assist his attorney, but was again suffering pain without the medications. Defendant Brooks responded that Plaintiff had to put in a renewal HNR for medications. In a February 16, 2012 HNR, Plaintiff again requested a renewal of Soma, but Brooks responded that renewal had been denied.

On March 1, 2012, "John Doe" or "John Doe #1" evaluated Plaintiff and told him of Soma's addictive properties and declined to prescribe Soma, despite Plaintiff's effective pre-incarceration treatment with Hydrocodone and Oxycontin without adverse effects. (Id. at ¶¶ 13, 60.) "Later, " apparently the same day or March 2, Plaintiff received three epidural injections for pain and the treatment specialist, apparently Dr. Page, also recommended Soma.[11]

In an April 1, 2012 HNR, Plaintiff reported that he was again in pain and that it had been several weeks since he had seen the specialist. PA Saretsky (CS121) responded "referral in Progress for [follow-up]." (Id.) In an April 9, 2012 HNR, Plaintiff asked when he would see the treatment specialist and stated that he was in serious pain. "John Doe #___" responded that an appointment was scheduled. (Id.)

Beginning April 17, 2012, Plaintiff received Soma for two weeks. According to Plaintiff, although an unidentified person again ordered Soma on May 1, 2012, Plaintiff was actually given Flexeril.[12] In a May 5, 2012 HNR, Plaintiff asked why he was receiving Flexeril rather than Soma, when Soma had effectively relieved his pain and Flexeril did not.

On June 11, 2012, a treatment specialist ordered or recommended Soma for Plaintiff. In a June 18, 2012 HNR, Plaintiff asked to see a doctor because he had not seen a doctor in months and he wanted to know about any changes in treatment. PA Johnson responded that a follow-up had been requested. In a June 27, 2012 HNR, Plaintiff stated that he could not go to an appointment with the pain specialist because he had a court hearing the following day and did not want to be "drugged up for court."[13] (Id. at 3F.) "CHS" responded that the appointment was scheduled. (Id.)

In a July 15, 2012 HNR, Plaintiff asked when the June 11 prescription for Soma would be filled. HS556 responded that "we are awaiting additional documentation from pain management office."[14] (Id.) In a July 31, 2012 HNR, Plaintiff stated that he was in pain and asked why he was not receiving Soma. PA Saretsky (CS121) responded that "Your [sic] were seen by provider on 7/23/12 and this issue was discussed with you, " and that "if you are in pain, I suggest not refusing your options provided." (Id.) Plaintiff contends the response was designed to make it appear that he was in pain because he refused proffered alternatives, but that he had declined the alternatives because they had been "historically ineffective" in treating his pain. (Id.) Plaintiff fails to describe when or whom he saw on July 23, 2012, or what occurred.

In an August 6, 2012 HNR, Plaintiff warned that he was preparing to file a grievance regarding CHS's failure to treat his back injury and pain. HS556 responded that Plaintiff was scheduled to be seen. On August 15, 2012, Plaintiff filed grievance 12-08667. In an August 31, 2012 HNR, Plaintiff requested use of a wheelchair for an upcoming court hearing because he was unable to walk to court due to pain caused by walking in shackles. "CHS" responded that a visit would be scheduled.

In a September 1, 2012 HNR, Plaintiff asked to see a provider regarding pain from a knee injury that was getting worse. HS217 responded that Plaintiff was scheduled to be seen. In a September 5, 2012 HNR, Plaintiff complained that he had been woken up to go to a pain management appointment, but he had never been taken.

In a September 7, 2012 HNR, Plaintiff "pleaded" to see a provider about his pain. (Id. at 3G.) Defendant Barker responded "s/c sched." (Id.) In a September 11, 2012 HNR, Plaintiff asked to see a provider for pain. In response, he was told that an appointment was scheduled. In a September 14, 2012 HNR, Plaintiff again complained of pain and asked why CHS refused to provide prescribed pain medication; Plaintiff fails to identify the medication ...

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