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Pesqueira v. Ryan

United States District Court, D. Arizona

October 30, 2015

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



On July 24, 2015, Plaintiff Eric Kevin Pesqueira, who is confined in the Arizona State Prison Complex (ASPC)-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Shortly thereafter, Plaintiff paid the filing and administrative fees. In a September 18, 2015 Order, the Court dismissed Defendants Ryan, Pratt, McKamey, Corizon, Sedlar, Reece, and Does I-IV. The Court also determined that Plaintiff had adequately alleged a claim against the Defendant identified in the Complaint as “John Doe Nurse.” Plaintiff was given 30 days to file a written response that included either (1) the name of “John Doe Nurse, ” or (2) an explanation of what Plaintiff had done to try to learn this Defendant’s name, a description of what discovery Plaintiff would undertake to learn his name, and the identity of at least one person who could be served with discovery.

On September 24, 2015, Plaintiff filed a Response to the Court’s September 18, 2015 Order (Doc. 9), a Motion to Alter or Amend the September 18, 2015 Order (Doc. 10), and a First Amended Complaint (Doc. 11). The Court will order Defendant Sedlar to answer Counts One and Two of the First Amended Complaint and will dismiss without prejudice Defendant McKamey, Defendant Salas, Defendant John Doe/RF, and the Defendants identified as Jane Does. Plaintiff’s Motion to Alter or Amend will be denied as moot.

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. First Amended Complaint

In his two-count First Amended Complaint, Plaintiff asserts claims of constitutionally deficient medical care. He names as Defendants Corizon Health (“Corizon”), a private corporation that contracts with the Arizona Department of Corrections (ADC) to provide health care to inmates; Arlene McKamey, a unit provider at ASPC-Florence; Nurse Sedlar, a nurse at ASPC-Florence; John Doe (“Doe #1”), a nurse at ASPC-Florence; Christine Salas, a nurse at ASPC-Florence; an unidentified number of ASPC-Florence nurses identified as “Jane Does”; and John Doe/RF (“Doe #2”), an x-ray technician at ASPC-Florence. Plaintiff seeks injunctive relief and monetary damages.

According to Plaintiff, the facts alleged in each count of the First Amended Complaint involve “the same exact incident.” Plaintiff states that he separated his claim into two counts so that he could “separately address” two distinct injuries. Because these injuries arise out of one occurrence, the Court will analyze Plaintiff’s allegations as though they were set forth in a single count.

Plaintiff alleges that on September 25, 2013, he fell while playing basketball at ASPC-Florence. According to Plaintiff, his right hand was “severely injured[, ] displaying extreme swelling, with the highpoint almost like a tennis ball cut in half.” (Doc. 11 at 5.) For several weeks, Plaintiff “brought this to the nurse’s attention every time they delivered [his] med[ication]s.” (Id.) Plaintiff allegedly showed the nurses his hand, verbally requested attention, and wrote detailed health needs request forms (HNRs). Plaintiff claims that these exchanges “occurred with several nurses, ” including Defendant Sedlar. (Id.) Over the course of several weeks, Defendant Sedlar told Plaintiff that the medical provider was not in or that the medical provider would not talk to Sedlar that day. She also told Plaintiff that he was on the waiting list for x-rays, even though medical records show that he was not on the waiting list for x-rays at that time. Plaintiff further alleges that Defendant Sedlar erroneously indicated in response to one of Plaintiff’s HNRs that he had been seen by a doctor.

Plaintiff claims that another nurse, “who seemed new, ” did not place Plaintiff on an emergency line because, according to her, she was “letting Sedlar take care of it.” (Id. at 6.) John Doe #1 allegedly saw Plaintiff’s hand but refused to talk to anyone about Plaintiff’s condition or about having Plaintiff “called in.” (Id.) John Doe #1 also refused to get Plaintiff ice, or some other form of pain management, despite being aware of the severity of Plaintiff’s injury. According to the First Amended Complaint, Doe #1 “straight out told [Plaintiff] that [he] would have to wait for [his] HNR to be answered.” (Id.) Plaintiff also alleges that his HNRs requesting pain management were ignored. And when he did see a provider who attempted to treat him, “the central office denied [that provider’s] first requested medication” and “vaguely” responded that Plaintiff should continue to be treated with non-steroidal anti-inflammatories (NSAIDs), even though Plaintiff’s record revealed that NSAIDs had proven ineffective. (Id. at 8.)

Nurse Salas saw Plaintiff’s hand and told Plaintiff that she would have him placed on the doctor’s line, but he was never placed on the line. The Jane Doe Defendants allegedly saw Plaintiff’s hand as well. In addition, Plaintiff claims that John Doe #2 delayed the x-rays on Plaintiff’s hand. According to Plaintiff, these x-rays were ordered October 9, 2013, but were not performed until October 17, 2013. When x-rays were eventually performed, they revealed that Plaintiff had broken his fourth and fifth metacarpals. By the time Plaintiff was sent for “proper attention” on November 4, 2013, it was too late for the surgeon to perform the necessary surgery on his hand. (Id. at 7.)

On December 16, 2013, Plaintiff learned from the surgeon that, as a result of the delayed treatment and the surgeon’s inability to operate, Plaintiff’s broken fingers would no longer fully extend. In addition, Plaintiff’s fourth finger “loosely shakes back and forth as if not even connected.” (Id. at 7.) On March 26, 2014, Plaintiff saw a hand specialist. The specialist informed Plaintiff that he would not operate on Plaintiff’s fingers without operating on Plaintiff’s wrist. Plaintiff elected not to have the surgery performed because, at the time, the risks associated with the operation outweighed any potential benefit. According to Plaintiff, these risks are much greater than they would have been had surgery been performed in ...

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