United States District Court, D. Arizona
STEVEN P. LOGAN, District Judge.
Plaintiff John Kristoffer Larsgard, through counsel, brought this civil rights Complaint under 42 U.S.C. § 1983 against Defendant Corizon Health Incorporated (Corizon), a private corporation contracted to provide medical services for the Arizona Department of Corrections (ADC) (Doc. 1). Before the Court is Corizon's Motion for Summary Judgment (Doc. 32).
The Court will deny the motion and direct Corizon to file a new summary judgment motion.
In his Complaint, Larsgard set forth two counts for relief: a medical-care claim under the Eighth Amendment (Count I) and a gross negligence/negligence claim under state law (Count II) (Doc. 1 ¶¶ 36-56). Larsgard alleged that when he entered the ADC in April 2012, he had a pre-existing spinal condition that caused chronic, severe pain, muscle spasms, and seizures ( id. ¶ 14). He claimed that in December 2012, he suffered a seizure, fell out of bed, and injured his neck and spine ( id. ¶¶ 14-15). The fall caused further nerve damage and left him partially paralyzed, and shortly thereafter, he underwent emergency surgery on his neck and spine ( id. ¶¶ 15-17, 19). According to Larsgard, following surgery, the treating neurosurgeon, Dr. Ali A. Baaj, recommended that Larsgard see a pain-management specialist for his chronic, severe pain and receive follow-up treatment within 30 days, including MRI/CT scans, so that a neurologist could evaluate whether his spine was properly healing and the bolts in his neck and spine remained in place ( id. ¶ 20). Larsgard alleged that despite these recommendations, he was not returned for follow up until late July 2013, six months later, and at that time, the x-rays and MRI imagings had not yet been taken ( id. ¶ 21).
Larsgard averred that as of the date of his Complaint (August 23, 2013), he had not seen a pain management specialist for his chronic, severe pain ( id. ¶ 22). He further averred that his medication is ineffective and inadequate to control his seizures, muscle spasms, and neuropathic pain, and the medication that is provided is routinely out of supply or discontinued for non-medical reasons ( id. ).
Larsgard seeks injunctive and declaratory relief for the alleged Eighth Amendment violation (( id. ¶¶ 40-46). Specifically, he requests an injunction against Corizon to (1) perform the requisite imaging studies of his neck and spine; (2) refer him to a pain management specialist; and (3) timely administer his medications (Doc. 39 at 2). Larsgard also seeks compensatory and punitive damages and costs (Doc. 1 ¶¶ 57-60).
Corizon moves for summary judgment only on the Eighth Amendment claim ( see Doc. 32). It argues that (1) there is no evidence it denied adequate medical care or had the culpable state of mind required for deliberate indifference and (2) Larsgard merely presents a difference of opinion regarding treatment (Doc. 32).
In his opposition, Larsgard concedes that Corizon has performed the requisite imagings; therefore, that particular request for injunctive relief is moot (Doc. 39 at 2).
II. Summary Judgment Standard
A court must 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). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to 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, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).
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. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). Where the plaintiff seeks injunctive relief, the court may also consider developments that postdate the motions to determine whether an injunction is warranted. Farmer v. Brennan, 511 U.S. 825, 846 (1994).
III. Relevant Disputed and Undisputed Facts
In 2009, Larsgard underwent posterior cervical fusion surgery in Germany (Doc. 33, Def.'s Statement of Facts (DSOF ¶ 2); Doc. 40, Pl.'s Controverting Statement of Facts (PCSF) ¶ 2). In December 2012, while in ADC custody, Larsgard fainted in his cell and hit the back of his head, which caused upper extremity paresthesia and neck pain (DSOF ¶ 3; PCSF ¶ 3). This pain was exacerbated on January 1, 2013, when Larsgard turned his head and lost consciousness ( id. ). He was taken to the emergency room and later admitted to the University of Arizona Medical Center, where x-rays revealed a C6 fracture (Doc. 40, Pl.'s Statement of Facts (PSOF) ¶ 1 & Ex. 1 (Doc. 40-1 at 5)). Larsgard underwent a posterior cervical fusion and laminectomy performed by Dr. Ali Baaj (DSOF ¶ 3; PCSF ¶ 3). Thereafter, on January 11, 2013, Larsgard was transferred to a rehabilitation facility, and Dr. Baaj prescribed a list of medications, which included narcotics and benzodiazepines (DSOF ¶ 4; PCSF ¶ 4). Upon Larsgard's discharge, Dr. Baaj recommended he return for follow up 3 weeks after surgery, and a typical follow up is usually 2-3 weeks after surgery, then again at 3 months, and then at 6 months (PCSF ¶ 8).
Larsgard received pain management treatment post-surgery at the Medical Center and the rehabilitation facility; however, the parties dispute whether this pain management treatment was with a specialist (PSOF ¶ 2; Doc. 42 ¶ 2). Dr. Baaj has recommended pain management treatment since the surgery (PSOF ¶ 2; Doc. 42 at 2).
On February 11, 2013, after Larsgard's return to prison, prison physician Dr. Kevin Lewis noted that in addition to the MS Contin (morphine) prescribed by Dr. Baaj for post-surgical pain, Larsgard had a history of taking a high dose of opioids from 2009 (DSOF ¶ 6; PCSF ¶ 6). Prior to his incarceration, Larsgard was treated by a physician in Norway for chronic, severe neck pain (PSOF ¶ 3). The Norwegian physician tried alternative treatments and pain medications but determined that a combination of opioids and benzodiazepines was the only effective treatment for Larsgard's severe pain ( id. ).
On March 4, 2013, Corizon assumed care and treatment of Larsgard when it replaced Wexford as the contracted entity with the State of Arizona to provide healthcare services to inmates (Doc. 32 at 4 n. 1).
Corizon states that Dr. Lewis attempted to wean Larsgard off of the high dose opioid analgesics and, in an April 2013 medical note, documented that Larsgard "is highly resistant to wean off opioid analgesics. My goal is gradual wean to lowest dose to maintain function" (DSOF ¶ 7). Larsgard states that Dr. Lewis advised him that Corizon ordered Dr. Lewis to discontinue morphine pain medication per its policy (PCSF ¶ 7). Larsgard states that his pain medication regularly "ran out, " which caused him to suffer severe bouts of pain ( id. ).
Larsgard was not seen by Dr. Baaj for follow up until July 26, 2013 (DSOF ¶ 8; PCSF ¶ 8). At this appointment, Dr. Baaj noted that Larsgard had no post-op x-rays so he ordered that an x-ray and imagings "be performed immediately" and that a disk with the results be mailed to the hospital neurosurgery clinic ( id. ). He also ordered that Larsgard follow up with the neurosurgery clinic in 6 months for a cervical spine CT (DSOF ¶ 8).
On August 20, 2013, Larsgard saw prison Nurse Practitioner Richard Unger (DSOF ¶ 9). The medical record from this encounter reflects that the two discussed pain management and that Larsgard stated he felt his pain was under control with morphine sulfate (MS Contin) but he requested diazepam (Valium) for muscle spasms (Doc. 33, Ex. L (Doc. 33-1 at 23)). Larsgard was already on diazepam, but Unger increased the dosage and also submitted a consult request for a CT of the cervical spine in 6 months per Dr. Baaj's request ( id.; PCSF ¶ 9). Thereafter, a "Utilization Management" physician reviewed Larsgard's medication history, determined that his ...