United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Pending before the Court is Plaintiff's Motion to Grant Plaintiff's Untimely Motion for Leave to File a First Amended Complaint. (Doc. 23.) Plaintiff has also lodged a Motion for Leave to File a First Amended Complaint (Doc. 24), his Proposed First Amended Complaint (Doc. 25), and a Verification of his First Amended Complaint (Doc. 26). Also pending before the Court is Defendant Molina's (formerly known as Defendant Martin) Motion for Summary Judgment. (Doc. 29.)
The Court will deny Plaintiff's Motion to Grant Plaintiff's Untimely Motion for Leave to File a First Amended Complaint (Doc. 23) and Plaintiff's Motion for Leave to File a First Amended Complaint (Doc. 24) as moot under Rule 15 of the Federal Rules of Civil Procedure. The Court will dismiss Plaintiff's official capacity claims against employees of Wexford, Corizon, and Trinity, and order all of the Defendants to answer Plaintiff's remaining Eighth Amendment claims. Finally, the Court will deny Defendant Molina's Motion for Summary Judgment as both moot and premature.
I. Plaintiff's Motions For Leave to Amend
On June 18, 2014, Plaintiff, 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.
On September 12, 2014, the Court granted Plaintiff's second Application to Proceed in Forma Pauperis, ordered Defendant Molina to answer the Eighth Amendment claim regarding Defendant Molina's denial of a no-nitrate diet for Plaintiff, dismissed without prejudice the remaining claims and Defendants, and denied without prejudice the Motion for a Preliminary Injunction.
On September 25, 2014, Plaintiff filed a Motion for Preliminary Injunction, and on October 2, 2014, Plaintiff filed a Motion for Reconsideration. (Docs. 14, 18.) On November 25, 2014, the Court denied Plaintiff's Motion for Preliminary Injunction without prejudice and denied Plaintiff's Motion for Reconsideration. (Doc. 22.) On January 9, 2015, Plaintiff filed his pending Motion to Grant his Untimely Motion for Leave to File a First Amended Complaint. (Doc. 23.) In the Motion, he states that the Court's November 25, 2014 Order required him to file a First Amended Complaint within 21 days of that Order. (Doc. 23 at 1.) Plaintiff requests the Court deem his Motion for Leave to Amend as timely filed.
The Court's November 25, 2014 Order instructed Plaintiff that if he "wants to amend his Complaint to present additional allegations, he must comply with Rule 15 of the Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure." (Doc. 22 at 3 n.1.) Rule 15 of the Federal Rules of Civil Procedure provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B)... 21 days after service of a responsive pleading." Further, Rule 15.1(b) of the Local Rules of Civil Procedure provides the following:
If a party files an amended pleading as a matter of course or with the opposing party's written consent, the amending party must file a separate notice of filing the amended pleading. The notice must attach a copy of the amended pleading that indicates in what respect it differs from the pleading which it amends, by bracketing or striking through the text that was deleted and underlining the text that was added. The amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits. If an amended pleading is filed with the opposing party's written consent, the notice must so certify.
Plaintiff lodged his Motion for Leave to Amend on January 9, 2015, before Defendant Molina filed her Answer to his initial Complaint. (Docs. 24, 25, 28.) Because Plaintiff was within the time permitted to amend his Complaint "as a matter of course" under Rule 15 of the Federal Rules of Civil Procedure, the Court will deny Plaintiff's Motions at Doc. 23 and Doc. 24 as moot. The Court further finds that Plaintiff has substantially complied with Rule 15.1 of the Local Rules of Civil Procedure by sufficiently explaining the additions to his First Amended Complaint. ( See Doc. 24.) The Clerk shall file Plaintiff's First Amended Complaint, lodged at Doc. 25, as well as Plaintiff's Verification, lodged at Doc. 26.
II. Screening of IFP 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 )).
III. Plaintiff's First Amended Complaint
In his First Amended Complaint, Plaintiff sues nine 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/Trinity Dietitian April Dishman,  ADOC/Corizon Nurse Molina; and ADOC/Corizon Facility Health Administrators Linda Hammer, Brenda Rojas, and Cameron Lewis. ( See Doc. 25.)
Plaintiff alleges violations of the Eighth Amendment prohibition against cruel and unusual punishment regarding his medical care against each Defendant. Plaintiff asserts that in June 2012, he developed "a sensitivity to chemical substances, " including sodium nitrates, which are found in processed meats served by the ADOC. Plaintiff characterizes this sensitivity as a "rare neurological condition." Plaintiff contends that he has voluntarily abstained from eating lunch meats because they are the main source of his "aggravation, " but alleges that he is still forced to eat the chicken and ground chicken, both of which make him "ill." Plaintiff asserts that ingesting sodium nitrates causes headaches, migraines, dizziness, difficulty concentrating, deficits in short-term memory, chills, fatigue, weakness, arrhythmia, chest pain, muscle cramping, spasms, jolts, minor neurological pain throughout his body, and "parasthesia."
Plaintiff further alleges that he suffered from "serious muscle cramping and spasms that left him unable to walk or sit-up" on four separate occasions: (1) on October 19, 2012, although Plaintiff does not know the cause of that incident; (2) on October 30, 2012, after ingesting bologna sandwiches the previous day served by the ADOC; (3) on June 5, 2013, after ingesting primidone (a medication) prescribed by a Corizon Nurse Practitioner; and (4) on June 30, 2013, after ingesting a hamburger the day before served by the ADOC. Plaintiff asserts that on these occasions his "vitals were taken" and tests were run regarding a possible heart attack, but "the hospital" did not address Plaintiff's muscle cramping.
Plaintiff contends that on June 18, 2013, a doctor told Plaintiff he may be experiencing sensitivity to sodium nitrates, and the doctor 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 contends that in accordance with ADOC Department Order (DO) #1101.03, 1.1.1., he submitted a "Health Needs Requests" on May 13, 2012, June 24, 2012, October 31, 2012, June 30, 2013, and June 10, 2013, but that "[d]espite being seen on numerous occasions by Wexford and Corizon health care providers, the treatment was insufficient as... plaintiff remained undiagnosed, untreated, and still sufer[ing] from [a] neurological aggravation" due to being forced to eat processed meats containing sodium nitrates. Plaintiff asserts that "there is no known medical test(s) to be conducted for a sensitivity to sodium nitrates, " but there "may be" an alternative test for neurological sensitivity, which Plaintiff asserts could diagnose his condition.
Plaintiff also asserts that he submitted four Informal Complaint Resolutions (ICRs) complaining that he was receiving inadequate treatment for his condition: one on October 21, 2012 to Jim Reinhart; one on June 21, 2013 to CO III Stodley; one on July 2, 2013 to Lewis; and one on June 30, 2013 to Hammer. Plaintiff claims that "most ...