United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
On June 18, 2014, Plaintiff Gregory Nides Valencia, Jr., who is confined in the Arizona State Prison Complex-Lewis in Buckeye, Arizona, filed a pro se civil rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 and invoked the Court's supplemental jurisdiction over his state law claims. He also filed an Application to Proceed In Forma Pauperis. On July 24, 2014, he filed a second Application to Proceed In Forma Pauperis (Doc. 5). On August 4, 2014, he filed a Motion for Preliminary Injunction (Doc. 6) and a Memorandum and a Declaration in support of the Motion.
The Court will grant the second Application to Proceed, order Defendant Martin to answer the Eighth Amendment claim regarding Defendant Martin's denial of a no-nitrate diet for Plaintiff, dismiss without prejudice the remaining claims and Defendants, and deny without prejudice the Motion for a Preliminary Injunction.
I. Second Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's second 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 $4.63. 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) (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 )).
In his Complaint, Plaintiff sues nineteen Defendants in their individual and official capacities: Arizona Department of Corrections (ADOC) Director Charles L. Ryan; Wexford Health Services, Inc. (Wexford); Corizon Health Services, Inc. (Corizon); Trinity Food Services, Inc. (Trinity); ADOC/Corizon Doctors Anderson and Thomas A. Bell; ADOC/Corizon Nurse Practitioner Laurence Ende; ADOC/Corizon Nurses Martin and Connor; ADOC/Corizon Psychiatrists Jawad Riaz, Rawa, and Charles; Health Site Managers Linda Hammer, Brenda Rojas, and Cameron Lewis; "Regional Operation" Jim Reinhart; Assistant Deputy Warden Aguilar; Correctional Officer IV Frisbee; and ADOC/Trinity Dietician April Dishman.
Plaintiff alleges violations of the Eighth Amendment prohibition against cruel and unusual punishment regarding his medical care. Plaintiff asserts that in June 2012, he developed "an apparent sensitivity to chemical substances, " including a sensitivity to sodium nitrates, which are found in processed meats served by the ADOC. Plaintiff contends that he must consume protein to maintain his proper nutrition and the processed meats provided by ADOC are his main source of protein. Plaintiff asserts that ingesting sodium nitrates causes him to suffer from vertigo, chills, fatigue, weakness, migraine headaches, arrhythmia, muscle spasms/cramping, and "parasthesia, " which Plaintiff contends is "temporary partial paralysis" that can lead to strokes and can be fatal.
Plaintiff asserts that on October 19, 2012, he suffered "parasthesia" after eating graham crackers, the medical department was notified, the medical department did not respond, and Plaintiff laid on the recreation yard for 20 minutes until officers were able to locate a wheelchair and take Plaintiff to the medical department. Plaintiff contends that the medical staff took Plaintiff's vitals and had him provide a urine sample. Plaintiff states that his vitals were normal, his urine did not show that he had taken drugs, and his urine showed that he was properly hydrated. Plaintiff states that he was ordered to stay in bed for 3 days, but no further treatment was provided.
Plaintiff claims that he suffered "parasthesia" again on October 30, 2012, after eating two bologna sandwiches the day before. He claims he was lying on his back and officers moved him to the floor, where he laid for fifteen minutes until medical staff arrived. A nurse took his vitals and assessed his sugar levels, all of which were normal, and concluded that Plaintiff was fine, even though Plaintiff was unable to sit, stand, or move his hands or feet. Plaintiff states that he argued for fifteen minutes that he was not fine, at which point the nurse left. Plaintiff states that he was unable to move his hands or feet for another ten minutes. Plaintiff claims no further treatment was provided.
Plaintiff asserts that he suffered "parasthesia" again on June 5, 2013. He claims he was placed in a wheelchair and taken to the medical department, where Defendant Anderson, based on Plaintiff's statement that his chest was tight and he was having difficulty breathing, stated that Plaintiff may have had a heart attack and ordered Plaintiff transported to the hospital. At the hospital, Plaintiff's blood was tested and a doctor stated that Plaintiff's potassium and magnesium levels were low and provided Plaintiff with mineral supplements. Plaintiff was returned to the prison, where he received the supplements and his blood was tested. Plaintiff claims he received no further treatment after his potassium and magnesium levels returned to normal.
Plaintiff contends that on June 18, 2013, a doctor told Plaintiff that he may be experiencing sensitivity to sodium nitrates and submitted a "no nitrates" diet card for Plaintiff. Plaintiff asserts that a nurse told him on June 21, 2013, that his "no nitrate diet" was denied. Plaintiff states that Defendant Martin denied the diet, despite the diet card having been submitted by the doctor. Plaintiff contends that Defendant Martin acted with deliberate indifference by denying a diet prescribed by the doctor and that doing so subjected Plaintiff to a substantial risk of harm. Plaintiff also asserts that Defendants Trinity and Corizon "per policy do not have an authorized no nitrate diet' and are not authorized to provide the aforesaid diet." Plaintiff contends that Defendants Trinity and Corizon acted with deliberate indifference by failing to fulfill the doctor's prescription for a no-nitrate diet, and that this subjected Plaintiff to a substantial risk of harm.
Plaintiff alleges that he suffered "parasthesia" again on June 30, 2013, after eating a hamburger the day before. Plaintiff states that he was in the dining hall, a sergeant called the medical department, but the medical department did not respond for 20 minutes. Plaintiff asserts that Defendant Connor arrived and "was very rude and callous, " threatened Plaintiff with disciplinary sanctions if he was "faking" his symptoms, accused Plaintiff of faking his symptoms, rudely stated that "it is written in your medical file that you fake your symptoms, " and stated that he was "only taking Plaintiff to [the medical department] because he had to." At the medical department, Defendant Connor took Plaintiff's vitals, which were normal. When Plaintiff asked Defendant Connor if he could explain why Plaintiff's hands were cramped, Defendant Connor was unable to do so. Defendant Connor kept Plaintiff in a holding cell for 30 minutes, after which Plaintiff walked back to his cell. No further treatment was provided.
Plaintiff contends that on January 9, 2014, "after already exhausting his damage claim, " he met with Defendants Frisbee and Aguilar. After discussing Plaintiff's medical needs, Defendant Aguilar had Plaintiff sign "I accept the informal resolution" on his grievance and explained to Plaintiff that he could submit a grievance if he was unsatisfied with the informal resolution. According to Plaintiff, the resolution was that an e-mail would be sent to Defendant Dishman requesting clarification regarding the approval of a no-nitrate diet. Plaintiff claims that Defendants Frisbee and Aguilar were attempting to intentionally delay and prevent Plaintiff from exercising his rights of access to the courts and his Eighth Amendment rights and that this also constituted deliberate indifference.
Plaintiff admits that "Defendants" have provided some treatment to Plaintiff. Plaintiff states that he was tested for Hepatitis C (he tested negative); his blood was tested in August 2012 to check his sugar and sodium levels (his results were within normal levels); and he was tested in August 2013 to determine if he was allergic to peanuts, sugar, beef, chicken or turkey (he was not). Plaintiff also claims Defendant Ende prescribed a medication for seizures on December 22, 2012, but the medication caused Plaintiff to have dizziness; and Defendant Ende prescribed another seizure medication that caused Plaintiff to have dizziness, nausea, and vomiting. Plaintiff claims Defendant Rawa evaluated Plaintiff for anxiety on July 17, 2013, diagnosed Plaintiff with anxiety, and prescribed a medication that caused Plaintiff to have dizziness; Defendant Riaz prescribed another medication for anxiety, but it caused Plaintiff to have dizziness, fatigue, nausea, and migraines; and Defendant Charles prescribed another anxiety medication on March 28, 2014, but that medication caused Plaintiff to have dizziness, nausea, and migraines. Plaintiff states that at every psychiatric evaluation he claimed he was not suffering from anxiety, but rather from a sensitivity to chemicals, as diagnosed by the doctor in July 2013. Plaintiff also alleges that Defendant Ende gave Plaintiff a "migraine speech" on July 10, 2013, in which he suggested that Plaintiff's body may be experiencing a physiological change that may have occurred with age after a methamphetamine addiction. In addition, Plaintiff contends that on July 12, 2013, a neurologist evaluated Plaintiff, concluded that Plaintiff was suffering from carpal-pedal spasms, and advised Plaintiff to stop ingesting whatever was causing the spasms.
Plaintiff asserts that he has complained to Defendants Ryan, Aguilar, Frisbee, Wexford, Corizon, Bell, Ende, Connor, Riaz, Anderson, Rawa, Charles, Hammer, Rojas, Reinhart, Dishman, and Lewis about his serious medical needs "to no avail"; that Defendants Ryan, Wexford, and Corizon have not provided "confirmation nor treatment" regarding Plaintiff's injuries; and that Defendants Ryan, Wexford, Corizon, Anderson, Connor, Ende, Rawa, Charles, and Riaz acted with "deliberate indifference and negligence" when they knowingly failed to adhere to the doctor's diagnosis regarding nitrate-sensitivity. Plaintiff asserts that he has suffered pain, damage to his equilibrium, vertigo, fatigue, weakness, difficulty concentrating and retrieving information from his short-term memory, and "jolts - [his] hands, feet, and legs thrust out in an outward direction."
Plaintiff also asserts a claim under the Americans with Disabilities Act (ADA). He asserts that once his sensitivity to sodium nitrates has been diagnosed he will qualify as an American with a disability. He contends that ADOC has "A.D.A. cells for prisoners with a disability" and that he needs to be assigned to one of these cells, on a lower tier/lower bunk, and without a cellmate.
Finally, Plaintiff contends that he is actually innocent of burglary and murder and was wrongfully convicted in violation of the Fourteenth Amendment.
In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary damages, a jury trial, and his costs of suit.
IV. Failure to State a Claim
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint ...