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Lowery v. Barcklay

United States District Court, D. Arizona

April 28, 2015

Christian Dale Lowery, Plaintiff,
v.
Dr. Barcklay, Defendant.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Christian Dale Lowery, who is currently confined in the Arizona State Prison Complex-San Luis, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff moves for summary judgment (Doc. 73) and Defendant cross-moves for summary judgment (Doc. 82).[1]

I. Background

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim and directed Defendant Barcklay to answer Plaintiff's Eighth Amendment deliberate indifference to medical needs claim in Count One. (Doc. 3). The Court dismissed the remaining claims and Defendants. (Id. ). Plaintiff and Defendant cross-move for summary judgment as to Count One.

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, if any, 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).

III. Facts

On March 14, 2011, Plaintiff sustained an injury to his left hand while on work detail as a plumber at the Arizona State Prison Complex ("ASPC")-Yuma, Cheyenne Unit. (Doc. 74 ¶ 1; Doc. 83 ¶ 1). The same day, Plaintiff was brought to medical on an emergency basis by security staff. (Doc. 83 ¶ 31; Doc. 91 ¶ 31). Plaintiff was seen by a nurse and Dr. Milazzo, whose notes indicate that Plaintiff had a 1/2-3/4 inch laceration on the dorsal aspect of his left hand over the distal third metacarpal, i.e. a cut over the knuckle of his middle finger of his left hand. (Doc. 83 ¶ 32; Doc. 91 ¶ 32). Plaintiff explained to medical staff that he cut his hand on a piece of metal while working on a drinking fountain. (Doc. 83 ¶ 33; Doc. 91 ¶ 33). At that time, Plaintiff could fully flex and extend his finger. (Doc. 83 ¶ 34; Doc. 91 ¶ 34).

Plaintiff was given three stiches, antibiotic ointment, and sterile dressing; was instructed on how to treat the injury and to report if there was any drainage or swelling; was prescribed an antibiotic; and was given a Special Needs Order ("SNO") for limited duty. (Doc. 83 ¶ 35; Doc. 91 ¶ 35). Plaintiff was scheduled to have the stitches removed in ten days and was told to follow-up with the Cheyenne Unit provider if he had any problems. (Doc. 83 ¶ 36; Doc. 91 ¶ 36). Dr. Milazzo's observation that Plaintiff had full flexion and extension of his finger at the time of the initial observation indicates that, at that time, all of Plaintiff's tendons were intact. (Doc. 83 ¶ 38; Doc. 91 ¶ 38).

On March 21, 2011, Plaintiff submitted a Health Needs Request ("HNR") stating that he had injured his hand on March 14, 2011, and that he was concerned his hand might be fractured. (Doc. 83 ¶ 39; Doc. 91 ¶ 39). Plaintiff requested to see a provider to have his hand x-rayed. (Doc. 83 ¶ 39; Doc. 91 ¶ 39). Plaintiff was seen by the nursing staff the same day. (Doc. 83 ¶ 40; Doc. 91 ¶ 40). The nurse noted that Plaintiff's left hand was swollen; he reported that since receiving stitches, his hand would swell and then the swelling would recede; Plaintiff's stitches were still intact; and there was no redness or drainage. (Doc. 83-1 at 18). The nurse scheduled Plaintiff to see a provider. (Doc. 83 ¶ 40; Doc. 91 ¶ 40).

On March 22, 2011, Defendant Dr. Barcklay saw Plaintiff and Plaintiff told her that he was taking an antibiotic, he did not have an infection, and he thought his hand might be fractured. (Doc. 83 ¶ 43; Doc. 91 ¶ 43). Defendant Barcklay examined Plaintiff and noted that he had no signs of infection, his laceration was well-healed, and his stitches were intact. (Doc. 83 ¶ 43; Doc. 91 ¶ 43). Plaintiff's hand showed swelling with a slight depression over his third metacarpal joint and that he was unable to fully extend his left, third finger. (Doc. 83 ¶ 45; Doc. 91 ¶ 45).

Defendant Barcklay asserts that Plaintiff made no mention of re-injuring his hand at the March 22, 2011 appointment. (Doc. 83 ¶¶ 44, 46). Plaintiff asserts that, at the March 22, 2011 appointment, he told Defendant Barcklay that he had re-injured his hand twice while performing limited duties at work and told her that he was in "substantial pain" and that his middle finger would not straighten all the way. (Doc. 91 ¶ 44; Doc. 89 ¶ 4). ...


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