United States District Court, D. Arizona
G. Campbell United States District Judge
Roger Wayne Preayer brought this pro se civil rights action
under 42 U.S.C. § 1983 against multiple Arizona
Department of Corrections (ADC) employees: (1) Deputy Warden
D. Schuster; (2) Lieutenant Cheryl Malysa; (3) Corrections
Officer (CO) Maria Piller; (4) CO II Jaudiel Barajas; (5) CO
II Eduardo Arreola; and (6) Nurse Practitioner Carey Tucker.
(Doc. 61). Before the Court is Tucker's Motion
for Summary Judgment for failure to exhaust administrative
remedies, to which Arreola and Barajas filed a Joinder.
(Docs. 92, 107). Preayer opposes Tucker's Motion and
objects to Arreola and Barajas' Joinder. (Docs. 99, 108.)
The Court will deny the Joinder motion as moot and grant
Tucker's Motion for Summary Judgment.
Count I of his First Amended Complaint, Preayer alleges that
he was subject to unconstitutional conditions of confinement
from January through May 2014, when he was housed in an
isolation cell at the Arizona State Prison Complex
(ASPC)-Lewis, Morey Unit. (Doc. 61 at 5-19.) Preayer alleges
that Barajas, Arreola, Malysa, Schuster, and Pillar were all
aware of his cell conditions and failed to remedy the
Count II, Preayer alleges deliberate indifference to his
serious medical need. (Id. at 20-24.) Preayer states
that he has chronic high blood pressure, for which he has
taken medication since 2002, but when he saw Tucker on
February 26, 2014, Tucker cancelled Preayer's
prescription. (Id. at 20.) Preayer alleges that he
saw Tucker again a month later, on March 28, 2014, at which
time he complained that since Tucker discontinued his
medication, he had experienced dizziness, extreme pain, and
disorientation. (Id.) Preayer requested
reinstatement of the blood pressure medication.
(Id.) According to Preayer, Tucker said Preayer no
longer required medication, and he refused to issue a new
prescription. (Id.) The next day, Preayer became
light-headed and dizzy, and he tried summoning help via the
emergency call button in his cell and by waving at the camera
in his cell, but no one responded. (Id. at 20-21.)
Preayer lost consciousness and was later found in a puddle of
blood. (Id. at 21.) When medical arrived,
Preayer's blood pressure was 184/108, and he was taken to
the medical unit for treatment, after which his blood
pressure medication was reinstated. (Id.)
February 9, 2016 Screening Order, the Court directed
Schuster, Malysa, Piller, Barajas, and Arreola to answer
Count I, and Tucker, Barajas, and Arreola to answer Count II.
(Doc. 65 at 6.)
15, 2016, Tucker filed his Motion for Summary Judgment, which
pertains only to the claim in Count II. (Doc. 92.) Tucker
argues that he is entitled to summary judgment on Count II
because Preayer failed to exhaust administrative remedies as
required under the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(a). (Id.)
August 22, 2016, after the Motion for Summary Judgment was
fully briefed, Arreola and Barajas filed a Joinder to
Tucker's Motion. (Doc. 107.) They incorporate
Tucker's argument and his Statement of Facts, and seek
summary judgment as to the Count II claim against them.
objects to the Joinder motion. (Doc. 108). Preayer asserts
that although the Court's Screening Order directed
Arreola and Barajas to answer Count II, he did not name these
two Defendants in Count II. (Id. at 2.) Preayer
states that he named Arreola and Barajas only in Count I, and
he indicates that the Court erred when it added these two
Defendants to Count II. (Id.) Preayer concludes that
because Arreola and Barajas are not Defendants in Count II,
their Joinder is moot. (Id. at 3.)
light of Preayer's clarification that he did not intend
Arreola or Barajas to be named as Defendants in Count II, the
Court finds that their Joinder motion is moot, and it will be
denied. Arreola and Barajas are not Defendants in Count II.
Summary Judgment Standard.
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.
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), but it must