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Florence v. Doe #1

United States District Court, D. Arizona

June 26, 2014

Alexander Napier Florence, Plaintiff,
v.
John Doe #1, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

On February 3, 2014, Plaintiff Alexander Napier Florence, who is confined in the Arizona State Prison Complex-Lewis ("ASPC-Lewis"), filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 9, 2014 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.

On June 11, 2014, Plaintiff filed his First Amended Complaint (Doc. 8). The Court will dismiss the First Amended Complaint with leave to amend.

I. 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). "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. 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). Plaintiff's First Amended 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

II. First Amended Complaint

In his First Amended Complaint, Plaintiff alleges one count and names the following Defendants: Tucker, a physician's assistant at ASPC-Lewis, Bachman Unit; John Doe #1, "reviewing doctor/Corizon Healthcare" at ASPC-Lewis, Bachman Unit; John Doe #2, "facilities health administrator" at ASPC-Lewis; and John Doe #3, "deciding doctor/Corizon Healthcare" at ASPC-Lewis.

Plaintiff alleges that his Eighth Amendment rights were violated as follows: In early 2013, Plaintiff was transferred to the Arizona Department of Corrections ("ADOC") from the Maricopa County Sheriff's Office ("MCSO"). From October 2012 to March 2013, while he was in MCSO custody, Plaintiff was "on chronic care medication and care for his left wrist." Plaintiff was transferred to ASPC-Lewis and began to submit health needs requests ("HNRs") requesting "medical care." Defendant Tucker denied and delayed Plaintiff's care several months. On August 12, 2013, Plaintiff was permitted to see Dr. Schaub, an outside specialist at the Arizona Center for Hand Surgery. Dr. Schaub was Plaintiff's physician before he was incarcerated. Dr. Schaub "ordered physical therapy, specific pain and nerve damage medication, and a follow-up appointment for further surgery assessment." These orders were not honored by Defendants. Plaintiff's condition "subsequently worsened" due to lack of care.

In October 2013, Plaintiff was transferred back to MCSO custody and received medications and treatment for his wrist. Plaintiff's surgery was "delayed by Dr. Schaub until after his release due to lack of care and lack of ADOC' to provide proper aftercare." Dr. Schaub determined that Plaintiff's condition cannot and will not improve without surgery and will worsen.

In February 2014, Plaintiff was transferred back into "ADOC custody." Plaintiff was on medication and his medical records reflected the treatment and medications he was on while in MCSO custody. Defendant Tucker reviewed Plaintiff's medical records from Plaintiff's visits with Dr. Schaub on August 12, 2013 and December 21, 2013. Defendant Tucker then wrote a fictitious report to the reviewing committee. Defendant John Doe #1 denied "all physical therapy, all medications, a wrist brace and any and all medical treatment." Defendant Tucker, who had knowledge of Plaintiff's medical history, knew that Defendant John Doe #1's decision was incorrect, but concurred with Defendant John Doe #1's decision on March 26, 2014. Defendants John Doe #2 and John Doe #3 "being of a supervisory pos[]ition are equally respon[si]ble for allowing their subordinates to continue this behavior unchecked for so long."

Plaintiff was scheduled to see Defendant Tucker twice over the next four months, but has still not been seen and is still receiving no care. Plaintiff has submitted thirty to forty HNRs over a period of thirteen months and has ...


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