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Spencer v. Clark

United States District Court, D. Arizona

September 9, 2014

Clinton Lee Spencer, Plaintiff,
v.
K. Clark, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Sr., District Judge.

Plaintiff Clinton Lee Spencer, who is confined in the Arizona State Prison Complex, Rincon Unit, in Tucson, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) Plaintiff has also filed a motion to order the Clerk to send a service packet, three motions for injunctive relief, a motion for copies of documents submitted with his motion for injunctive relief, two motions to appoint counsel, a motion for forms and summonses, a motion for ruling, and a motion to amend or correct Complaint. (Doc. 5-8, 10, 14-18.) The Court will grant Plaintiff's motion to amend or correct the Complaint to the extent that Defendants Clark and Hetrick will be dismissed and the motion will otherwise be denied.[1] The Court will dismiss the Complaint with leave to amend and deny Plaintiff's other motions.

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 ). 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 three counts for denial of constitutionally adequate medical care, specifically care concerning his kidney and/or heart disease and provision of a diabetic diet.[2] Plaintiff sues the following current or former employees of the Arizona Department of Corrections (ADC): Kitchen Supervisor Jennifer Hetrick; Dr. Michael Thompson; Healthcare Provider Ryan Brower; and Nurse K. Clark. Plaintiff seeks compensatory and punitive relief. As discussed above, Plaintiff subsequently filed a motion to amend or correct his Complaint to remove Hetrick and Clark as Defendants. Accordingly, they will be dismissed.

Plaintiff alleges the following facts in Count I of his Complaint: Plaintiff has suffered from non-insulin dependent diabetes since before his incarceration in 1991. On September 14, 2013, Nurse Clark failed to provide an insulin injection to Plaintiff and failed to check his blood sugar levels several times. Plaintiff indicates that Clark knew that his records reflected that he was supposed to receive insulin injections. He asserts that Clark and other medical staff often misrepresented or exaggerated his medical condition based on kitchen staff "discarding to delivery meals with insulin." (Doc. 1 at 3.) According to Plaintiff, ADC doctors knew of the "violations" but failed to prevent them and that this continued until November 2013. ( Id. ) He contends that the "municipal defendants" maintain a policy or custom resulting in an injury to him.[3] He contends that as a direct result of his uncontrolled diabetes, he has developed diabetic neuropathy, proliferative retinopathy of the left eye, kidney disease, severe hypoglycemia, seizures, and psychological harm and claims that he fears for his life following the lack of treatment "since the offense."[4] Plaintiff contends that he did not receive medical care consistent with the American Diabetes Association (ADA) guidelines between September and November 2013. He additionally alleges that unidentified nurses failed to timely deliver morning meals because kitchen staff refused to the deliver meals. He contends that his glucose levels could have been controlled and his blood pressure decreased if he had been provided a midafternoon and bedtime snack and with "serial monitoring." ( Id. at 8.)

In Count II, Plaintiff alleges the following: from August to December, 2013, Hetrick failed to cooperate with a restricted diet order issued by Dr. Brower on November 19, 2013 in an attempt to control Plaintiff's diabetes and prevent complications. Hetrick denied, delayed, or interfered with orders to provide renal diet meals to Plaintiff and acted negligently in failing to provide the diet and morning, mid-day, bedtime, and other snacks. Hetrick failed to cooperate with medical staff and her behavior was allegedly detrimental to Plaintiff's medical condition. ADC, the Risk Management Division of the Department of Administration, and Corizon were aware of the risk and disregard to Plaintiff's medical condition, but failed to act.[5] Plaintiff was forced to take insulin without food and Plaintiff refused to sign a disciplinary report concerning that incident. He asserts that two different healthcare providers have prescribed a renal diet. He contends that Defendants refused to provide the diet and that he has suffered as a result and contends that he has been denied an "MNT" by a registered dietician to achieve treatment goals. ( Id. ) He claims that he is denied a daily heart-healthy diet or consistent carbohydrates and a way to identify the carbohydrate content of each food.

In Count III, Plaintiff alleges the following facts: on December 18, 2013, a healthcare provider noted in Plaintiff's medical records that, after an examination by a kidney specialist, Naproxen had increased his kidney function 25% "because Physicians Michael Thompson prescribed [illegible] inconsistent medications." (Doc. 1 at 5.) The kidney specialist told Plaintiff that he was in stage 4 kidney disease. Plaintiff contends that Drs. Thompson and Brower failed to provide medical care, which caused Plaintiff's kidney disease to progress to kidney failure, by prescribing medically inappropriate medications. Plaintiff contends that his medical condition was worsened because he did not see doctors for his kidney disease until "2008/2010" and he was denied a kidney biopsy because it would reveal a "correct diagnosis" and reflect "inconsistent harming medications prescribed" by Thompson. On December 18, 2013, a kidney specialist apparently recommended starting dialysis to treat his kidney failure. Plaintiff generally contends that his current status could have been avoided by Corizon and Drs. Thompson and Brower by controlling his glucose levels and blood pressure. He also asserts that he has not received timely treatment since 2010 and that he has not been prescribed appropriate medications for his kidney and heart conditions. He contends that he has been denied an appropriate diet, insulin, and medications on a regular basis. Plaintiff contends that Dr. Thompson never made a good faith effort to investigate Plaintiff's kidney condition and "fix it." ( Id. ) Drs. Thompson and Brower advised him about two complications, his diabetes and hernias, but "officials" refused to respond to a "substantial risk of serious harm to Plaintiff abdominal hernias caused by a congenital weakness in the abdominal wall by the navel on the ground that surgery would be too expensive to fix it." ( Id. ) According to Plaintiff, Dr. Thompson had alternatives for treatment, but chose "wrongful medications" that significantly injured Plaintiff's kidneys, which Plaintiff contends was medically unacceptable. ( Id. at 10.) Plaintiff appears to contend that glucose tablets were not made available to him and that blood glucose meters were inaccurate.

Plaintiff further alleges that at his December 18, 2013 appointment, a kidney specialist noted that someone had indicated that Plaintiff had Hepatitis B, although Plaintiff has never been diagnosed with that illness. According to Plaintiff, the specialist speculated that prison staff made frivolous statements to justify the allegedly medically inappropriate court of treatment.

Plaintiff has attached two exhibits to his Complaint, which he numbers Exhibits 10 to 13. Exhibit 10 is a copy of a 2011 medical record indicating that Plaintiff's vision is very poor. Exhibit 11 is a notice of claim submitted to the Department of Administration and later forwarded to Corizon. In his lengthy notice of claim, Plaintiff provides a marginally clearer description of how he believes that he has been provided inadequate medical care. Plaintiff indicates that did not receive meals and insulin shots at consistent times from day to day and that he was not provided meals and insulin at approximately the same time to control his glucose levels. He further indicates that although snacks and glucose tablets were recommended for him to take at times when meals and insulin injections could not be provided. He also indicated that a few days ...


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