United States District Court, D. Arizona
DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE.
Plaintiff Robert Joseph Benge, who is currently confined in the Arizona State Prison Complex-Lewis (ASPC-Lewis), brought this civil rights case pursuant to 42 U.S.C. § 1983. Doc. 1. Pending before the Court are the following motions: (1) Defendants Casey Tucker, Christina Mahler, and Corizon, LLC’s motion for summary judgment (Doc. 64), which Plaintiff opposes (Doc. 93); (2) Defendant Wexford Health Sources, Inc.’s motion for summary judgment (Doc. 88), which Plaintiff opposes (Doc. 113); (3) Defendant Kenneth Merchant’s motion for summary judgment (Doc. 96), which Plaintiff opposes (Doc. 111); (4) Defendants Charles Ryan, Richard Pratt, and Josh Santo’s motion for summary judgment (Doc. 119), which Plaintiff opposes (Doc. 126); (5) Plaintiff’s motion to supplement his response to Defendants Tucker, Mahler, and Corizon’s motion for summary judgment (Doc. 124); and (6) Plaintiff’s motion to reopen discovery and file an amended complaint (Doc. 146).
The Court will deny Plaintiff’s motion to supplement and will summarily deny Plaintiff’s motion to re-open discovery and amend his complaint. For the reasons that follow, the Court will grant summary judgment to Defendants Ryan, Pratt, Mahler, Wexford, and Corizon, and deny summary judgment to Defendants Santo, Merchant, and Tucker.
In his Complaint, Plaintiff asserted two Counts of the denial of constitutionally adequate medical care. Doc. 1. Plaintiff seeks damages.
In Count I, Plaintiff alleged that his Eighth Amendment rights were violated when he was denied immediate treatment for a fractured left tibia that he injured on May 3, 2012. Plaintiff was taken that day to the ASPC-Lewis emergency room and was evaluated by Nurse Mahler. Plaintiff was told he had a sprain, not a bone injury. Dr. Merchant told Mahler to give Plaintiff ice and that he would order x-rays, but Plaintiff’s left leg and knee, which were swollen, were not “immobilized or stabilized” that day or any time thereafter. Id. at 5.
On May 13, 2012, Plaintiff submitted a Health Needs Request (“HNR”) about his leg (id.), and saw Mahler and Nurse John Doe on May 14, 2012 (id. at 8). Plaintiff alleged that Mahler and Doe saw that he “could hardly walk on his own, ” but nevertheless failed to splint, immobilize, or stabilize his “badly swollen, bruised left knee and leg.” Id. Plaintiff alleged that Mahler and Doe “actively thwarted” his attempt to see a doctor. Id. at 9.
On June 12, 2012, Dr. Merchant evaluated Plaintiff and saw “how swollen and bruised Plaintiff’s knee and leg” were. Id. Plaintiff asked why x-rays were never taken, and Merchant told Plaintiff that it was too late to take x-rays given the date of Plaintiff’s injury and that, instead, Plaintiff needed an MRI. Id.
Plaintiff had an MRI on July 3, 2012, and it showed “an incomplete transverse fracture through the medial tibial metaphysis, ” but no one told Plaintiff about the fractured tibia until November 15, 2012, when he saw Dr. John Vanderhoof, M.D., an orthopedic surgeon. Id. at 9-10. Plaintiff claims that because he did not receive immediate treatment, he has suffered permanent injury and continuing pain. Plaintiff alleged that Arizona Department of Corrections (ADC) Director Charles Ryan, ADC Director of Health Services Richard Pratt, and Wexford, the private healthcare provider under contract with ADC beginning July 1, 2012, “neglected the serious medical needs of inmates by failing to manage, support, supervise and administer medical care to prisoners.” Id. at 7.
In Count II, Plaintiff alleged that his Eighth Amendment rights were violated when, on several occasions in 2013 and 2014, he did not receive his prescribed pain medications. Corizon had replaced Wexler as the provider of inmate healthcare during this time period. Plaintiff alleged that on June 18, 2013, his prescription medications Gabapentin and Propranolol were abruptly discontinued for three months. Plaintiff alleged that on September 18, 2013, physician’s assistant Carey Tucker abruptly discontinued his Baclofen prescription and reduced his Gabapentin from 3, 200 mg daily to 600 mg daily, even though both were prescribed for “neurovascular compromise [and] muscle spasms for the fracture[d] tibia that was never treated.” Id. at 18. Plaintiff’s Tramadol prescription, which he took to manage the pain related to an eye condition, was stopped on November 5, 2013, and his Gabapentin 600 mg daily was stopped “cold turkey” on January 16, 2014 and has not been renewed. Id. On January 14, 2014, Plaintiff saw an outside eye specialist, Dr. Warren Heller, M.D., who wrote a prescription for Tramadol 300 mg twice daily for pain management, but Tucker refused to prescribe this medication for Plaintiff. Plaintiff alleged that Tucker is only prescribing psychotropic medications to inmates for pain management, “pursuant to a policy implemented” by Corizon, Ryan, Pratt, and ADC. Id. at 19.
On screening under 28 U.S.C. § 1915A(a), the Court ordered Defendants Ryan, Pratt, Wexford, Merchant, and Mahler to answer the allegations in Count I and Defendants Ryan, Pratt, Corizon, and Tucker to answer the allegations in Count II. Doc. 6. The Court dismissed the remaining Defendants without prejudice. The Court also found that Plaintiff had stated a claim against Defendant Nurse Doe, but did not order service on the unidentified Defendant. In a subsequent Order, the Court ordered that Josh Santo be substituted for Defendant Nurse Doe in Count I of the Complaint, and that Santo answer Count I. Doc. 51.
II. Plaintiff’s Motion to Supplement.
Defendants Tucker, Mahler, and Corizon (“Corizon Defendants”) filed their motion for summary judgment on March 12, 2015, Plaintiff filed a response on May 18, 2015, and the Corizon Defendants filed a reply on June 1, 2015. On August 17, 2015, Plaintiff filed a motion to supplement his response to the Corizon Defendants’ motion for summary judgment. Doc. 124. Defendants have not responded to Plaintiff’s motion, and the time to do so has passed.
Plaintiff seeks to add a July 2015 article entitled “The Making of Made in his Image: A Camera Made from Living Tissue!, ” by Randy J. Guliuzza, P.E., M.D., in a publication called Acts & Facts. Id. at 12-14. The two-page article compares the lens of a sophisticated camera to the eye and discusses the components of an eye, stating in one part that “[c]orneas are likely the most pain-sensitive tissues in the body, with sensory innervation over 400 times greater than that of most skin and even dozens of times more sensitive than our teeth or fingertips.” Id. at 14. Plaintiff contends that the article is relevant to his claim that medication was necessary for management of his eye pain. Id. at 2-4. The article, though, does not appear to be about diseases of the eye, eye pain, or treatment thereof.
Printed material “purporting to be a newspaper or periodical” is self-authenticating. Fed.R.Evid. 902(6). This article is therefore self-authenticating. Its content, however, is hearsay not subject to any exception and it does not appear to be relevant to Plaintiff’s particular eye condition. Accordingly, the article is not admissible for summary judgment purposes. Because the article is not admissible for summary judgment, the Court will deny Plaintiff’s motion to supplement.
III. Legal Standards.
A. Summary Judgment.
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 Cos., 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 National Bank of Arizona v. Cities Service 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 Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation and citation omitted) (emphasis in original); 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 (citation omitted). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).
B. Eighth Amendment Medical Care.
To succeed on a medical-care claim under the Eighth Amendment, a prisoner must demonstrate “‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs to the deliberate-indifference analysis: an objective standard and a subjective standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (quotation marks and citation omitted). Examples of indications that a prisoner has a serious medical need include “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Id. at 1059-60.
Second, a prisoner must show that “the defendant’s response to that need was deliberately indifferent.” Jett, 439 F.3d at 1096. The state of mind required for deliberate indifference is subjective recklessness; however, the standard is “less stringent in cases involving a prisoner’s medical needs . . . because ‘[t]he State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.’” McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Whether a defendant had requisite knowledge of a substantial risk of harm is a question of fact, and a fact finder may conclude that a defendant knew of a substantial risk based on the fact that the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
“Prison officials are deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (quotation marks and citations omitted). Deliberate indifference may also be shown by the way in which prison officials provide medical care, Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988), or “by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm, ” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (citations omitted). And deliberate indifference may be shown by a purposeful act or failure to respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. But the deliberate indifference doctrine is limited; an inadvertent failure to provide adequate medical care or negligence in diagnosing or treating a medical condition does not support an Eighth Amendment claim. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citations omitted). Further, a mere difference in medical opinion does not establish deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Finally, even if deliberate indifference is shown, to support an Eighth Amendment claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096 (citations omitted); see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (finding that delay in providing medical treatment does not constitute Eighth Amendment violation unless delay was harmful).
IV. Defendants Ryan, Pratt, and Santo’s Motion for Summary Judgment.
A. Relevant Facts.
1. Plaintiff’s Leg Injury.
Plaintiff fell on May 3, 2012 and injured his left leg. Doc. 1 at 5. Plaintiff alleges that he was seen by Mahler in the ASPC-Lewis emergency room for his leg injury that same day, and that he was told he had a sprain and was given medical ice. Id. The ADC Defendants contend that Plaintiff did not complain about his leg injury until he submitted his May 13, 2012 HNR, in which Plaintiff wrote that he “hurt [his] leg running a week ago, and [he] can still hardly walk on it. It is getting worse with pressure, swelling.” Docs. 120 at 5, ¶ 19; 120-3 at 8. Plaintiff wrote that his pain was a 7-8 on a scale of 1-10 and that he wanted to see the healthcare provider “as x-rays may be needed.” Doc. 120-3 at 8. Plaintiff disputes Defendants’ assertion as to when he first complained about his injury, averring that he complained about his injury to “security staff/medical staff” on May 3, the day of the injury, and that he submitted an HNR on May 8, 2012. Docs. 127 at 3; 127-1 at 10. Defendants dispute that Plaintiff ever submitted an HNR dated May 8, 2012, and assert that Plaintiff’s medical file does not contain an HNR with that date. Docs. 141 at 5; 142 at 1, ¶ 1; 142-1 at 2, ¶ 2. Plaintiff submits a May 8, 2012 HNR which states: “I hurt my leg a few days ago, ER only gave me ice. Something ‘real bad’ is wrong with my leg. Request x-ray be performed. It’s hard to walk because every step hurts.” Doc. 127-1 at 10. There is nothing written in the portion of the HNR reserved for medical personnel.
Plaintiff saw Santo, a registered nurse, on May 14, 2012, for his complaints of pain in his left leg. Doc. 120 at 5-6, ¶ 20. According to Santo, Plaintiff’s left leg showed no evidence of trauma, swelling or bruising, and Plaintiff was able to bear weight on his left leg. Id.; Doc. 120-3 at 39-40, ¶ 10. Santo determined that Plaintiff was experiencing “alteration in comfort” and recommended that Plaintiff monitor his leg and if the pain did not subside in a few days, he should submit an HNR to medical. Id. Santo issued Plaintiff a special needs order (“SNO”) for medical ice for three days. Id. Plaintiff disputes Santo’s observation that there was no evidence of trauma, swelling or bruising or that he could bear weight on his leg. Docs. 127 at 3; 127-1 at 10. Plaintiff points to his May 13 HNR which states that his leg was “getting worse with pressure, swelling.” Docs. 127 at 3; 127-1 at 11.
On May 22, 2012, Plaintiff submitted another HNR, stating that he saw the nurse the week before due to an injury to his left leg and that he is “in excruciating pain still.” Docs. 120 at 6, ¶ 22; 120-3 at 15. Plaintiff asked “to see the provider A.S.A.P.” Doc. 120-3 at 15. Santo saw Plaintiff on May 31, 2012 for his “complaint of left knee pain”; Santo examined Plaintiff’s left leg and “did not observe any swelling or signs of trauma.” Doc. 120 at 6, ¶ 23. Santo again assessed Plaintiff as “experiencing alteration in comfort, ” gave Plaintiff medical ice, and scheduled him to see the healthcare provider.Id. Plaintiff disputes that Santo did not notice any trauma or swelling, noting that Santo nonetheless gave him medical ice. Doc. 127 at 4.
On June 5, 2012, Santo noted in Plaintiff’s medical chart that Plaintiff was at the medical unit requesting an x-ray of his left knee and a consult for his eyes. Doc. 120 at 6, ¶ 24. That same day, Plaintiff saw Merchant, a medical doctor, for his complaints of “continued pain in his left knee and issues related to his eye condition.” Id., ¶ 25. In Plaintiff’s medical chart, Merchant noted left “knee pain” and “tender tibial plateau, unable to one leg stand, flex/ext.” Doc. 120-3 at 11. Merchant ordered an MRI of Plaintiff’s left knee and a consultation with an orthopedic specialist. Doc. 120 at 6, ¶ 25.The MRI was performed on Plaintiff’s left knee on July 3, 2012, and it showed an “incomplete transverse fracture through the medial tibial metaphysis with diffuse bone marrow edema.” Docs. 120 at 6, ¶ 26; 120-3 at 18. On July 13, 2012, Merchant noted the results of the MRI in Plaintiff’s chart and ordered an “ortho/surg consult” and to make an appointment for July 17, 2012 to discuss the MRI. Doc. 120-3 at 11, 22.
On July 9, 2012, Plaintiff filed an HNR asking for an appointment with the provider to discuss the results of his MRI and to discuss safety glasses because of his cornea transplant. Doc. 120 at 7, ¶ 27. On August 7, 2012, Plaintiff saw Dr. Merchant “for his complaint of eye injuries”; Merchant noted in Plaintiff’s medical chart that Plaintiff has keratoconus and had corneal transplants in both eyes. Id. at 7, ¶ 29; Doc. 120-3 at 24. Plaintiff disputes that he was seen for “eye injuries”; he states that Nurse Reese told him this appointment was to discuss the MRI results. Doc. 127 at 4. The ADC Defendants aver that Merchant was not able to discuss the MRI results at the August 7th appointment “due to time constraints.” Doc. 120 at 7, ¶ 30. Plaintiff disputes that time constraints alone prevented them from discussing the MRI results; he asserts that Dr. Merchant “refused to discuss the MRI results.” Doc. 127 at 4, ¶ 30. On August 8, 2012, Plaintiff submitted an HNR asking for an appointment to discuss the MRI results because they were not able to do so during his August 7th appointment. Docs. 120 at 7, ¶ 30; 120-3 at 27.
On November 15, 2012, Plaintiff was examined by Dr. John Vanderhoof of Tempe St. Luke’s Hospital. Doc. 120 at 7, ¶ 31. Plaintiff testified at his deposition that it was during this visit with Vanderhoof that he learned for the first time that he had fractured his tibia when Vanderhoof asked him, “How in the hell did you fracture your tibia?” Doc. 127-2 at 10 (Pl Dep. at 37:18-19). According to the ADC Defendants, Vanderhoof noted that Plaintiff complained of “medial knee pain and medial tibial pain, ” but that Plaintiff denied any numbness, tingling, or other complaints. Doc. 120 at 7, ¶ 31. Plaintiff disputes that he denied any numbness or tingling. Doc. 127 at 4, ¶ 31. In his consultation report, Vanderhoof noted that four and a half months after his injury, Plaintiff’s “left knee has a full range of motion. He does have pain over the pes bursa. He has no swelling. He has no pain over the anterior aspect of the tibia, but medially over the pes bursa, he is significantly painful.” Doc. 120-3 at 29. Vanderhoof wrote that Plaintiff injured his knee while running and noticed “onset of pain and swelling in his left knee” and “was not able to walk after a while.” Id. Plaintiff “presented to the emergency room where he was evaluated and told he was okay. He subsequently has had an MRI” that “shows a medial proximal tibial fracture.” Id.
Vanderhoof ordered x-rays during Plaintiff’s visit, and they were taken that same day. Doc. 120 at 7, ¶ 31. Vanderhoof wrote that x-rays showed “a healed medial and proximal tibial fracture with some slight callus formation present. Medially, that is probably near the pes bursa.” Doc. 120-3 at 29. Vanderoof’s impression was that Plaintiff suffered from “left pes bursitis, status post proximal medial tibial fracture.” Id. Vanderhoof gave Plaintiff an injection of Lidocaine, Marcaine, and Depo-Medrol into the left pes bursa, which provided “immediate pain relief of his symptoms.” Id. at 30.
Plaintiff saw Dr. Vanderhoof for a follow-up visit on June 27, 2013. Doc. 120 at 7, ¶ 33. Vanderhoof’s report noted the July 2012 MRI results showing a “medial tibial metaphyseal fracture.” Doc. 120-3 at 36. Vanderhoof also wrote:
He has been complaining of medial and proximal tibial pain consistent with pes bursitis. He has a lot of issues with regards to board filings for malpractice and so forth. We had long discussions with regards to this. I think____ treated properly since the beginning ___quite normally and his bone is completely healed. He did not know all the details, but certainly the end result is excellent. His pes bursitis is likely not related to his fracture or any treatment thereof. I think his pes bursitis is strictly due to his hamstring tightness.
Id. (omissions in original).
Vanderhoof also noted that Plaintiff was complaining of left plantar fasciitis, which “is treatable with gentle stretching.” Id. Vanderhoof gave Plaintiff an injection into his left pes bursa, which gave Plaintiff “immediate pain relief of his symptoms.” Id.
Plaintiff submitted an Inmate Letter on November 19, 2012, stating that “[i]n July [sic] I hurt my leg running and I submitted an HNR requesting an x-ray to no avail.” Docs. 120 at 9, ¶ 41; 120-4 at 62. Plaintiff wrote that when he saw Dr. Vanderhoof on November 15, 2012, he “was told that [he] broke [his] left leg just under the knee and it healed back wrong.” Doc. 120-4 at 62. Plaintiff asked “why the [department] is being deliberately indifferen[t] to [his] serious medical needs in not seeing [him] so x-rays could be taken.” Id. Corrections Officer III Bruemmer responded to Plaintiff’s Inmate Letter on November 20, 2012, advising Plaintiff that his medical issue “was forwarded to medical in care of P. Carlson.” Docs. 120 at 9, ¶ 42; 120-4 at 64.
On December 9, 2012, Plaintiff submitted an Inmate Grievance. Doc. 120 at 9-10, ¶ 43. Plaintiff wrote that he did not receive a response to his November 19, 2012 Inmate Letter, and that he hurt his leg in July and requested x-rays because he “could barely walk.” Doc. 120-4 at 66. Plaintiff said that Dr. Vanderhoof told him in November that he broke his leg; now he has “pain issues [and] swelling.” Id. He asked to see an orthopedic surgeon and to discuss pain management and balance issues with the provider. Id. Plaintiff submitted an Inmate Grievance Appeal on January 5, 2013, stating that he did not receive a response to his Inmate Grievance, and asking to see the healthcare provider for pain management and for an orthopedic consultation with Dr. Vanderhoof. Docs. 120 at 10, ¶ 44; 120-4 at 68. Plaintiff asked why it took months before x-rays of his leg were taken and why it took four months to learn the results of his MRI and that his leg was broken. Id.
On March 22, 2013, ADC Deputy Director Jeff Hood wrote a response to Plaintiff’s Inmate Grievance Appeal on behalf of ADC Director Ryan. Doc. 120 at 10, ¶ 45. Hood wrote that Plaintiff’s Grievance Appeal was partially upheld because his investigation “showed no evidence that medical staff responded to your grievance; for this reason, your appeal is partially upheld.” Doc. 120-4 at 70. Hood then related the history of Plaintiff’s medical visits regarding his leg, beginning with Santo’s evaluations on May 14 and May 31, 2012 in which Santo saw “no sign of trauma, swelling or bruising” and “weight bearing was intact.” Id. (emphasis in original). Hood wrote that Plaintiff saw a medical provider on June 5, 2012, who ordered an MRI of Plaintiff’s left knee; the MRI taken July 3, 2012 “showed an incomplete transverse fracture through the medial tibial metaphysis with diffuse bone marrow edema; there was no meniscal tear.” Id. (emphasis in original). Hood noted that Plaintiff saw an orthopedic surgeon on November 15, 2012, who wrote that Plaintiff’s “x-rays showed a healed medial proximal tibial fracture with some slight callus formation.” Id. at 70-71 (emphasis in original). Because of that and a follow-up x-ray taken December 26 showing “mild osteoarthritis of the left knee, ” Hood wrote that a referral to an orthopedic surgeon was not necessary. Id. at 71 (emphasis in original).
2. Plaintiff’s Pain Medications.
On June 3, 2013 Plaintiff filed an Inmate Letter, stating that Nurse Practitioner Lawrence Ende refused to renew the medications for his chronic conditions that were due to expire on June 18, 2013. Docs. 120 at 11, ¶ 46; 120-4 at 73. Plaintiff wrote that it has been a continual problem with his medications “stopping cold turkey.” Doc. 120-4 at 73. Correctional Officer III Lindsey responded and told Plaintiff that his Informal Complaint was being forwarded to Medical for further review. Doc. 120-4 at 75. Plaintiff did not receive a response to his Inmate Letter, and subsequently filed a Grievance and a Grievance Appeal. Doc. 120-4 at 77-78, 80-82.
On September 6, 2013, Hood, on behalf of Ryan, responded by denying the appeal. Doc. 120 at 13-15, ¶ 51. Hood wrote that Plaintiff has “been provided appropriate management for [his] condition.” Doc. 120-4 at 86. Regarding Plaintiff’s medications, Hood wrote that on May 24, 2013, Plaintiff was seen on the provider line for his complaints of pain behind the knee and left heel. Id. The nurse noted no deformity of the left knee or foot and Plaintiff’s vital signs were within normal limits; therefore, the nurse ordered that Plaintiff’s Gabapentin be discontinued when it expired on June 19, 2013 “as it was deemed to be no longer medically necessary.” Id. Hood said that Plaintiff’s June 27, 2013 x-ray of his left leg “showed mild to moderate degenerative disease of the medial femoro-tibial compartment; no evidence of fracture or dislocation was noted.” Id. (emphasis in original). Hood wrote that the orthopedic surgeon who saw Plaintiff that same day noted that Plaintiff was “‘treated properly since the beginning and [his] bone is completely healed’ from an old tibial metaphyseal fracture back in July [sic] 2012” and that the “end result is ‘excellent.’” Id. (emphasis in original). Hood stated that an onsite physician reviewed the orthopedic surgeon’s consultation notes on July 3 [sic], 2013 and “ordered appropriate medications for pain management.” Id. Hood concluded that “the decision to start or discontinue a medication or adjust its dosage is a medical decision based on the prescribing provider’s findings and medical judgment; it is not an administrative decision or based on the dictates of the patient.” Id. at 87.
Plaintiff filed a new Inmate Letter on September 19, 2013, complaining that nothing was done after he broke his tibia in May 2012 or even after the July 2012 MRI “showed such.” Docs. 120 at 15, ¶ 52; 120-4 at 89. Plaintiff wrote that he saw physician’s assistant Tucker on September 18, 2013, and Tucker told him that he was going to discontinue Plaintiff’s Baclofen, which was prescribed for muscle spasms “as the tibia bone ends were disturbed during regeneration, as [he] was forced to walk on this fracture for 16 months now. Proper healing didn’t take place.” Doc. 120-4 at 89. Plaintiff asserted that his Gabapentin had already been “stopped cold turkey” on June 18, 2013 and that to abruptly discontinue Plaintiff’s Baclofen “was medically reckless and represents flagrantly inadequate medical care.” Id. Correctional Officer III Taylor responded to Plaintiff’s Inmate Letter on October 17, 2013, stating that Plaintiff’s non-formulary drug request is “pending approval” and that Plaintiff is to follow-up with the yard nurse. Docs. 120 at 15, ¶ 53; 120-4 at 91. Taylor also wrote that Plaintiff refused an “alternate treatment plan” for his pain. Doc. 120-4 at 91.
Plaintiff submitted an Inmate Grievance on October 8, 2013, complaining that Tucker “drastically altered [his] medication regimen with the abrupt discontinuation of the Baclofen” and by decreasing his Gabapentin from 3, 200 mg daily to 600 mg daily. Docs. 120 at 15, ¶ 54; 120-4 at 93. Plaintiff wrote that because his fractured tibia was never immobilized or casted, he was at “substantial risk for neurovascular compromise” and that he has daily muscle spasms in his leg due to the discontinuation of the Baclofen and “excruciating pain due to the reduced Gabapentin.” Doc. 120-4 at 93.
On November 5, 2013, “Consultant/RVP” Linda Hammer responded to Plaintiff’s Grievance, stating that Plaintiff was seen by a healthcare provider on September 18, 2013, and at that time his Gabapentin was ordered, his Baclofen was discontinued, a physical therapy request was made, and Plaintiff was scheduled for a three-month follow-up. Docs. 120 at 15-16, ¶ 55; 120-4 at 95. Hammer told Plaintiff “[p]er DOC policy, clinical decisions and actions regarding health care services provided to you are the sole responsibility of qualified health care professionals. You do not have the right to dictate treatment or who provides treatment.” Doc. 120-4 at 95.
Plaintiff filed a Grievance Appeal on November 27, 2013, asserting that Hammer did not answer “the context” of his grievance. Docs. 120 at 16, ¶ 56; 120-4 at 97. Hood responded to Plaintiff’s appeal on behalf of Ryan on February 4, 2014, denying the appeal. Doc. 120 at 16-17, ¶ 57. Hood noted that Plaintiff was currently on Naproxen and Pamelor for pain control and that his Baclofen, Gabapentin, and Tramadol had been allowed to expire. Doc. 120-4 at 100. Hood wrote that “a medical provider may start or discontinue a medication or adjust its dosage based on his/her medical judgment; this is not an administrative decision or based on a patient’s preference(s). Our review showed that you are receiving appropriate medical care and you are continuing to be medically monitored.” Id.
1. Serious Medical Need.
The parties do not dispute that Plaintiff had a serious medical need. Nor is there any dispute that Plaintiff’s leg injury, eye condition, and pain were worthy of both comment and treatment. On this record, a jury could find that Plaintiff’s conditions constituted a serious medical need. See McGuckin, 974 F.2d at 1059. The Court therefore turns to the subjective prong of the deliberate indifference analysis.
2. Deliberate Indifference.
Plaintiff argues that each of the ADC Defendants was deliberately indifferent to his serious medical need. Under this inquiry, a court must determine whether each defendant had the requisite knowledge of a substantial risk of harm; that is, did each defendant know of and disregard a substantial risk to the plaintiff’s health. Farmer, 511 U.S. at 837. “If a person should have been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 2002) (citation omitted). When a plaintiff seeks to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the Eighth Amendment deprivation requires a very individualized approach that accounts for the duties, discretion, and means of each defendant. Leer ...