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Pember v. Ryan

United States District Court, D. Arizona

March 2, 2015

Jay Lynn Pember, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Jay Lynn Pember, who is a prisoner in the custody of the Arizona State Prison Complex-Florence ("ASPC-Florence"), brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 18.) Defendants Baird, Crabtree, Daniels, Ford, Freeland, Heet, Ramos and Woods move for summary judgment, and Plaintiff opposes.[1] (Docs. 73, 81.)

The Court will grant Defendants' Motion.

I. Background

On February 13, 2013, Plaintiff filed his First Amended Complaint, asserting that he was denied constitutionally adequate medical care in Count I and that he was denied due process regarding his classification in Count II. (Doc. 18.)

Plaintiff seeks injunctive and declaratory relief, as well as damages.

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim in Counts I and II and directed Defendants Baird, Doe and Crabtree to answer Count I and Defendants Payne, Ford, Danels, Wood, Ramos, Freeland, Heet, and Crabtree to answer Count II of the First Amended Complaint. (Doc. 19.)[2]

On June 30, 2014, Defendants Baird, Crabtree, Daniels, Ford, Freeland, Heet, Ramos and Woods filed their Motion for Summary Judgment (Doc. 73), and Plaintiff filed his Response on September 19, 2014 (Doc. 81.)[3] Defendants filed their Reply on October 8, 2014. (Doc. 83.)

II. Summary Judgment Standard

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, if any, 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").

III. Count I (Medical Care)

A. Plaintiff's Facts

On October 15, 2009, Plaintiff had a consultation with neurosurgeon Dr. Abhay Sanan in which Sanan diagnosed a "C5-C6 disk herniation on the right side, " a "clear-cut atrophy of the right deltoid, " and "fasciculations in the right biceps." (Doc. 81 ¶ 34 and Ex. 19(B) at 2 (indicating that Dr. Sanan reviewed a July 27, 2009 cervical MRI scan).) Dr. Sanan recommended a "C5-C6 anterior cervical diskectomy and arthrodesis." ( Id. ¶ 35 and Ex. 19(B) at 2.)

After the consultation with Dr. Sanan, Plaintiff only received Tylenol (acetaminophen) for the "unbearable pain, " despite submitting numerous HNRs regarding his pain between 2009 through 2011 and asking in his HNRs about the recommended surgery. (Doc. 81 ¶¶ 36, 37, 42.) Plaintiff spoke to many nurses during their medication rounds about his pain, but "no one knew what to do." ( Id. ¶ 39.) Plaintiff did receive a "communique" dated March 26, 2011, from Nurse Ripley, who wrote: "Consult was written October 2009 for neurosurgery at present Dr. Baird has scheduled you for Appt. (Approved Oct 2010 per notes)." ( Id. ¶ 39 and Ex. 22.) Plaintiff also asserts that many inmates attempted to assist in getting him to medical after witnessing the pain he was in. ( Id. ¶ 37 and Ex. 21.)

In a Declaration, Plaintiff asserted that "medical staff were aware of [his] medical needs and pain and suffering, purposely ignoring [him], " that "Defendants denied [him] treatment for a serious medical need' by leaving [him] to endure the pain and not providing [him] with adequate pain medication and not providing medical treatment to prevent the pain, " and that "Defendants were deliberate[ly] indifferent to [his] serious medical need' by not providing [him] ...


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