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Pesqueira v. Ryan

United States District Court, D. Arizona

September 18, 2015

Eric Kevin Pesqueira, Plaintiff,
v.
Charles Ryan, et al., Defendants.

ORDER

David G. Campbell United States District Judge

Plaintiff Eric Kevin Pesqueira, who is confined in the Arizona State Prison Complex-Lewis, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and paid the required filing and administrative fees. The Court will dismiss Defendants Ryan, Pratt, McKamey, Corizon, Sedlar, Reece, and Does I-IV. Plaintiff will be given 30 days to file a response containing additional information regarding the Defendant identified in the Complaint as “John Doe Nurse.”

I. 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)).

II. Complaint

In his Complaint, Plaintiff asserts two claims of constitutionally deficient medical care arising out of injuries he sustained while playing basketball in the Special Management Unit I (“SMU I”) at ASPC-Florence. He names as Defendants Charles Ryan, the Director of the Arizona Department of Corrections (“ADOC”); Richard Pratt, the Division Director of Health Services; Corizon Health, a contracted Health Care Provider; Arlene McKamey, a Health Care Provider; Nurse Sedlar, a Nurse at SMU I; Dr. Edward Reece, a hand surgeon contracted by ADOC; “John Doe Nurse, ” a Nurse at SMU I; and John/Jane Does I-IV, who are identified as medical staff at ASPC-Eyman. He seeks injunctive relief and monetary damages.

In Count One, Plaintiff alleges that he fell while playing basketball at SMU I on September 25, 2013. As a result of the fall, his right hand was “severely injured[, ] displaying extreme swelling, extreme dark bruising[, ] loss of mobilit[y, ] and a bone loosely shifting in the metacarpals.” Over the course of the next several weeks, Plaintiff brought his injury to the attention of several nurses, both verbally and in written health needs request forms (“HNRs”). He requested medical care from Defendant Sedlar and was told by Sedlar that “the provider wasn’t in, ” “the provider wouldn’t talk to her (that day), ” and he was “on the list for x-rays.” According to Plaintiff, he was never placed on an emergency line, and his records showed that he was not seen by a provider until “much later.” Another nurse (“Doe #1”) told Plaintiff that “she was letting Sedlar take care of it” and failed to put Plaintiff on the emergency line, in violation of prison policy. John Doe Nurse “straight out told [Plaintiff] that he would have to wait for [his] HNR to be answered.” John Doe Nurse would not call Plaintiff in or provide any ice or pain management “despite being aware of the severity” of Plaintiff’s injury. Plaintiff showed his hand to other unidentified nurses, but still was not “called to medical.”[1] Plaintiff submitted an HNR on October 4, 2013, that “describ[ed] the . . . injuries, ” and Doe #2 responded by stating that Plaintiff would be placed on “NL.” “At no time” was Plaintiff provided pain management.

On October 17, 2013, Plaintiff received x-rays that revealed he had broken his fourth and fifth metacarpals. He was sent to a physician for treatment on November 4, 2013, but by that time “it was too late for him to receive the necessary surgical fix[].” On December 16, 2013, it was discovered that Plaintiff could no longer fully extend the fingers he had broken. According to the Complaint, if Plaintiff had received timely treatment, he would have “been treated much differently with the expectation of a better outcome.” Plaintiff further alleges that Defendant Reece would not operate on his fingers unless he also performed surgery on Plaintiff’s wrist. According to Plaintiff, Reece “has an interest in minimizing surgical procedures due to the contract in place” with ADOC.

Plaintiff claims that Defendant Ryan is responsible for “establishing, monitoring[, ] and enforcing overall operations, policies[, and] practices of ADOC, ” and Defendant Pratt “is responsible . . . for establishing monitoring[, ] and enforcing system-wide health care policies and practices.” Plaintiff also claims that Corizon failed to properly train its Nurses and attributes part of the delay in treatment to a staff shortage. As a result of Defendants’ conduct, Plaintiff claims, he suffered “extreme physical pain, ” and incurred permanent damage to his fingers.

Plaintiff’s allegations in Count Two “involve the same exact incident” and are “identical [to] those in Count [One]” except insofar as they address the injury to his wrist, rather than his hand. According to the Complaint, when Plaintiff fell on September 25, 2013, he suffered significant damage to his wrist that led to a “permanent inability to extend or fully bend” it. In addition, he experienced “unrelenting significant” pain. Plaintiff alleges that “[A]DOC failed to provide pain management deliberately, ” and even when he “did receive a ...


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