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Lowery v. Barcklay

United States District Court, D. Arizona

April 17, 2014

Christian Dale Lowery, Plaintiff,
v.
Unknown Barcklay, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Christian Dale Lowery, who is a prisoner in the custody of the Arizona Department of Corrections (ADC), brought this civil rights case pursuant to 42 U.S.C. §1983 against Karen Barcklay for alleged indifference to serious medical needs. (Doc. 1.) Plaintiff moves for summary judgment, and Defendant opposes on the ground that, inter alia, the motion is premature as it was filed fewer than two weeks after the Scheduling Order was issued. (Docs. 39, 44.)

The Court will deny the motion without prejudice to refiling a proper motion when the deadline for discovery has passed.

I. Background

Plaintiff's claim arises from an injury to his hand sustained while working as a plumber for ADC. (Doc. 1.) In Count I, Plaintiff alleges that his hand was injured on March 14, 2011, and that Dr. Milazzo sutured the wound, prescribed antibiotics, and placed Plaintiff on limited-duty status, which did not exclude Plaintiff's work assignment. From then on, Plaintiff was dependent on Defendant for medical care, and he made nine contacts with Health Services seeking medical attention complaining that he had twice re-injured his hand and was experiencing pain, swelling, and an inability to extend his finger. On April 19, Defendant notified Plaintiff that she had made a request for an "ortho" evaluation. Plaintiff was seen on May 5 by an orthopedic surgeon who concluded that Plaintiff had severed a tendon and that because so much time had elapsed, the chance for successful surgery and recovery was greatly diminished. Although Plaintiff had the surgery on June 6, his hand capacity has been diminished, and he has suffered pain. (Doc. 1 at 3-3a.)

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim in Count I against Barcklay and directed her to answer. The Court dismissed the remaining claims and Defendants. (Doc. 3.)

II. Motion for Summary Judgment

A. Legal Standards

1. Summary Judgment

A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits or declarations, if any. See Fed.R.Civ.P. 56(c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But, if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 248-49. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment").

2. Medical Claim

To prevail on a claim under the Eighth Amendment for prison medical care, a prisoner must demonstrate "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (citations omitted). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096.

But mere claims of "indifference, " "negligence, " or "medical malpractice" do not support a claim under § 1983. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Inadequate treatment due to malpractice or even gross negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Moreover, differences in judgment between an inmate and prison medical personnel regarding an appropriate medical diagnosis or treatment are not enough to establish a deliberate-indifference claim. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of ...


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