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Deetz v. Arizona Dep't of Corr.

United States District Court, D. Arizona

March 18, 2014

Garrett J. Deetz, Plaintiff,
v.
Arizona Dep't of Corr., et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Garrett J. Deetz, who is confined in the Arizona State Prison Complex, Special Management Unit I, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 6.) On August 9, 2013, the case was referred to the Court's Early Mediation Program. (Doc. 11.) On February 21, 2014, the Court administratively terminated Plaintiff's pending motions, including his in forma pauperis application. (Doc. 14.) Plaintiff subsequently notified the Court that he wished to withdraw from the mediation process. Accordingly, the Court will grant Plaintiff leave to proceed in forma pauperis by paying the $350.00 filing fee incrementally. The Court will dismiss the Complaint for failure to state a claim with leave to amend.

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. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account 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, 556 U.S. 662, 678 (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 679. 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 681.

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 )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

III. Complaint

Plaintiff alleges two counts for denial of constitutionally adequate medical care. Plaintiff sues the Arizona Department of Corrections (ADC) and the following current or former employees thereof: Deputy Warden (DW) Anna Jacobs; Director Charles Ryan; Facility Health Administrators (FHA) Valenzuela and Ruth Figueroa; DW Fizer; all medical staff at ASPC Florence, Central Unit, and ASPC Tucson, Santa Rita, Cimarron, and Rincon Units. Plaintiff also sues Wexford Health Services, Inc., (Wexford) and Wexford's state medical director, Dr. Tom Bell, and regional doctor, Dr. Hector F. Garcia. Plaintiff seeks injunctive, compensatory, and punitive relief.

As pertinent to Plaintiff's claims in his Complaint, from July 1, 2012 until March 4, 2013, Wexford provided inmate health care under a contract with ADC.[1] Effective March 4, 2013, Corizon Health Inc. took over the provision of medical care to ADC inmates under a contract with ADC.[2]

Plaintiff alleges the following facts in his Complaint: at some point, Plaintiff noticed that he was urinating blood. For more than a year, he submitted repeated Health Needs Requests (HNRs), which were either not answered or resulted only in blood samples being taken. At some point, Plaintiff urinated what he thought was a kidney stone. Plaintiff put in "another" HNR and stated that something was wrong and he needed medical attention. Plaintiff was seen by medical staff who took blood before returning Plaintiff to his cell. At that juncture, Plaintiff had been urinating blood and kidney stones for more than a year and sometimes was unable to sleep due to pain. Although Plaintiff repeatedly asked for pain medication to alleviate his pain, his requests were ignored. Plaintiff does not allege when, how, or from whom he requested pain medication.

On August 6, 2012, Plaintiff was seen by a doctor at Central Unit in the Florence Complex, who ordered a CAT scan and more blood tests. Plaintiff was told that medication would be ordered as soon as the doctor found out anything. Although Plaintiff provided a kidney stone that he had urinated, he was told by someone that it was not needed and it was thrown away. Plaintiff was prescribed medication for an infection, although Plaintiff contends that he did not have an infection. Plaintiff was not ordered pain medication.

On October 9, 2012, Plaintiff was taken to have a CAT scan. Despite submitting numerous additional HNRs, Plaintiff was not informed of the results of the scan. Plaintiff commenced the grievance process. In the month immediately prior to filing this case, Plaintiff saw two doctors. One doctor told Plaintiff that the CAT scan had revealed numerous stones in Plaintiff's kidneys. The other apparently told Plaintiff that it was normal to urinate blood and kidney stones two to three times a month for more than a year. One of the doctors prescribed Naproxen and ordered ...


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