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Ballestero v. Ryan

United States District Court, D. Arizona

April 3, 2014

Brian Hezekiah Ballestero, Jr., Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Plaintiff Brian Hezekiah Ballestero, Jr., who is confined in the Arizona State Prison Complex-Florence, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 2), and a Motion for Emergency Preliminary Injunction (Doc. 4). The Court will grant the Application to Proceed, dismiss the Complaint with leave to amend, and deny the Motion for Emergency Preliminary Injunction without prejudice.

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 assess an initial partial filing fee of $1.63. The remainder of the 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). 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) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (citation omitted). 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. (citation omitted). "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 (citation omitted). 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). Here, Plaintiff fails to state a claim upon which relief can be granted in his Complaint, but it appears that the Complaint could be cured by allegations of other facts. Accordingly, Plaintiff's Complaint will be dismissed without prejudice and Plaintiff will be given an opportunity to amend.

III. Complaint

In his Complaint, Plaintiff alleges four counts against the following Defendants: Charles Ryan, "Director of Arizona State Prisons at the Arizona Department of Corrections"; Richard Pratt, "Interim Division Director of Health Services Division at the Arizona Department of Corrections"; Robert Parkinson, "Facili[ta]tor Health Administrator at Florence-Complex Health administration"; and "Corizon-John Doe, " "Healthcare provider administrator at the Arizona State Department of Corrections."

Plaintiff asserts Count One against Defendant Ryan and alleges as follows: As the Director of the Arizona Department of Corrections ("ADOC"), Defendant Ryan is responsible for establishing, monitoring, and enforcing overall operations, policies and practices of the ADOC, including the provision of constitutionally adequate medical, mental health, and dental care for all prisoners in the custody of the ADOC. Through his written policies, Defendant Ryan promised prisoners to provide resources sufficient to ensure that ADOC prisoners are given the community standard of healthcare, but those policies are "more honored in the breach than in the observance."

Defendant Ryan has established and approved policies that caused Plaintiff to experience multiple interruptions in his care, including delays in responses to his Health Needs Requests ("HNRs"), delays in receiving medications, abrupt changes to medications, improper medication, inadequate monitoring and follow-up visits, and a lack of psychological services for mental health deterioration. Plaintiff has not received the adequate treatment for Plaintiff's pain and hernia. Plaintiff has not been provided with adequate and timely medical care, causing him harm and permanent injury. Plaintiff experiences frequent diarrhea, nausea, exhaustion, weight loss, pain, and "other alarming symptoms." Plaintiff faces "lengthy and dangerous" delays in receiving healthcare and outright denial of healthcare because Defendants have a policy and practice of failing to provide timely access to healthcare and are deliberately indifferent to the risk of harm and injury to Plaintiff. In addition to restricting Plaintiff's ability to request health care, Defendants fail to provide care after receiving notice of Plaintiff's need and are deliberately indifferent to the harm that results. Plaintiff has to file multiple HNRs and faces delays of many weeks and often months before receiving exams or medicine.

The harm from the delays in care is aggravated by "Defendants' policies and practices of having AD[O]C clinicians make treatment decision[s] without examining Plaintiffs, instead relying on brief notes or descriptions from lower level medical assistants [and] correctional officers who have no medical training." The lower level staff refuse to acknowledge patients' symptoms until the condition has become life threatening or results in permanent injury.

"Defendant Ryan also has a policy and practice of relying on unqualified personnel to perform medical procedures for which they are unqualified with horrific results." Plaintiff requested emergency medical treatment and he was delayed for a few days, "which is a pattern of Defendant[]s not providing Plaintiff[]s with timely emergency medical treatment." Defendant Ryan does not have an adequate medical system for responding to healthcare emergencies and there is not an adequate number of staff to respond to many possible emergencies. Defendants do not have adequately trained security and healthcare staff in handling emergencies. Defendants are aware of all the deprivations complained of in the Complaint.

Plaintiff asserts Count Two against Defendant Pratt and alleges as follows: Defendant Pratt is responsible for establishing, monitoring, and enforcing Department of Corrections' system-wide healthcare policies and practices, and for supervising the provision of adequate medical, mental, and dental care for all prisoners. Through written policies, Defendant Pratt promised prisoners that he would provide sufficient resources to provide the community standard of healthcare, but the written policies are "more honored in the breach th[a]n in the observance." Defendant Pratt is aware of the system-wide deficiencies that caused and continue to cause harm to Plaintiff and has failed to take measures to establish reasonable healthcare. Defendants have a policy and practice of providing medicine "listed on a very limited formulary of approved medication." Medical staff frequently substitute doctor-approved drug regimens with drugs on the ADOC's "approved formulary" and, thus, Plaintiff has been denied adequate pain medicine for his serious medical condition. Many of the deficiencies in the ADOC's healthcare system are caused by ...


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