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Arenberg v. Adu-Tutu

United States District Court, D. Arizona

February 25, 2016

David Arenberg, Plaintiff,
Michael Adu-Tutu, et al., Defendants.



Before the Court is Defendant Arshad Tariq’s motion for summary judgment. (Doc. 78.) Plaintiff David Arenberg has also filed a motion to strike, (Doc. 80), and a motion to withdraw the motion the strike, (Doc. 83). The motion for summary judgment is fully briefed, and neither party requested oral argument. For the reasons stated below, Tariq’s motion for summary judgment is granted and Arenberg’s motion to withdraw his motion to strike is granted.


In November 2011, Plaintiff David Arenberg was serving a prison sentence in the custody of the Arizona Department of Corrections (“ADOC”) at ASPC-Kingman. (Doc. 1, ¶¶ 4, 19.) During his sentence, Arenberg developed a “severe rash consisting of a thick mass of blistering welts around his waistline and on his genitals.” (Id., ¶ 10.) Defendant Arshad Tariq was a physician at ASPC-Kingman during the time Arenberg was housed there and saw Arenberg several times concerning the rash. (Id., ¶ 7.)

On June 17, 2014, Arenberg filed suit under 42 U.S.C. § 1983 against Tariq and other prison medical staff alleging a violation of the Eighth Amendment. He also alleged claims of medical malpractice under Arizona law. On August 19, 2015, the Court dismissed Arenberg’s medical malpractice claims for failure to obtain an expert and submit a preliminary expert affidavit in accordance with A.R.S. § 12-2603(f). (Doc. 64.) All other Defendants have been dismissed. (Docs. 50, 67.) As such, only the § 1983 claim against Tariq remains.


Summary judgment is appropriate when, viewing the facts in a light most favorable to the nonmoving party, “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). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to the non-movant to establish the existence of a material fact. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1963)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


The sole remaining issue in this case is whether Tariq’s treatment of Arenberg’s medical condition amounts to deliberate indifference in violation of the Eighth Amendment’s proscription against cruel and unusual punishment. The government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). “In order to violate the Eighth Amendment proscription against cruel and unusual punishment, there must be a ‘deliberate indifference to serious medical needs of prisoners.’” Harrelson v. Dupnik, 970 F.Supp.2d 953, 980 (D. Ariz. 2013) (quoting Estelle, 429 U.S. at 104). “A determination of ‘deliberate indifference’ involves an examination of two elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (overruled on other grounds).

Tariq argues that Arenberg’s rash was not a serious medical condition and that, even if it was, he responded appropriately by treating the rash over the course of several months. He asserts Arenberg simply disagrees with the course of treatment and complains that his condition was not immediately cured. Assuming arguendo that Arenberg’s rash constitutes a serious medical need, the Court finds Arenberg fails to establish that Tariq acted with deliberate indifference towards that medical need.

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Deliberate indifference occurs when “prison officials deny, delay or intentionally interfere with medical treatment[.]” Hutchinson v. United States, 838 F.2d 290, 394 (9th Cir. 1988). It may also be “shown by the way in which prison physicians provide medical care.” Id. “A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Toguchi, 391 F.3d at 1060.

Tariq first treated Arenberg on December 13, 2011, at which time he wrote a five-page evaluation, discussed a management program with Arenberg, ordered a “lab work up, ” and prescribed medication for the rash. (Doc. 79, ¶¶ 11, 12; Doc. 79-1, ¶ 7; Doc. 85, ¶¶ 11, 12.) Arenberg claims he did not agree with the management plan and wanted an outside consultation from a dermatologist. (Doc. 85, ¶ 85.) Tariq referred Arenberg to the Medical Review Committee for consideration of an outside consultation. (Doc. 79, ¶13.)[1]

On January 5, 2012, Arenberg presented to Tariq for a second visit. (Id., ¶ 19.) Tariq discussed the lab work up with Arenberg and explained what the reports meant. (Id.) On January 18, 2015, Arenberg saw Tariq for “wax in the ear canal.” (Id., ¶ 20.) At this visit, Tariq renewed Arenberg’s Lidex cream prescription for his rash. (Id.)

On January 26, 2012, Arenberg again saw Tariq. (Id., ¶ 21.) Arenberg told Tariq that he believed his rash was related to a food allergy. (Id.; Doc. 85, ¶ 21.) In response, Tariq ordered a detailed food allergy test and injected Arenberg’s lesions with Kenalog to treat the symptoms. (Doc. 79, ¶ 21.) On February 6, 2012, Tariq reviewed the negative food allergy tests with Arenberg, prescribed additional ...

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