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Wellever v. Ryan

United States District Court, D. Arizona

December 12, 2016

Gary Wellever, Plaintiff,
Charles L Ryan, et al., Defendants.


          James A. Teilborg Senior United States District Judge

         Plaintiff Gary Wellever, a state prisoner proceeding pro se, brought this civil rights action seeking relief under 42 U.S.C. § 1983. Plaintiff alleges that Defendants Charles Ryan, Amber Norton, and Lauren Glassey were deliberately indifferent to his serious medical need in violation of the Eighth Amendment, and Defendants Ryan and Glassey denied Plaintiff humane conditions of confinement in violation of the Eighth Amendment. (Doc. 11 at 5, 7, 9).

         Pending before the Court are Defendants Norton and Glassey's Motion for Summary Judgment, (Doc. 32), Defendant Ryan's Motion for Summary Judgment and Joinder in Codefendant Norton/Glassey's Motion for Summary Judgment, (Doc. 37), and Plaintiff's Motion for Request to Defendants Norton, Glassey, [and] Ryan['s] Response Dated August 18, 2016, and Ryan's Dated August 22, 2016 to Plaintiff's Response Dated August 9, 2016, (Doc. 63). The parties did not request oral argument. The Court now rules on the Motions.

         I. BACKGROUND

         At the time he filed this action, Plaintiff was an inmate confined in the Central Arizona Correctional Facility (“CACF”), a private correctional facility. (Plaintiff's Statement of Facts in Opposition, Doc. 54 (“PSOF”) at ¶ 1). The GEO Group owns and operates CACF and has contracted with the State of Arizona to incarcerate prisoners. (Statement of Facts in Support of Defendant Ryan's Motion for Summary Judgment, Doc. 38 (“DRSOF”) at ¶ 4; PSOF at ¶ 1).

         On November 20, 2013, Plaintiff first sought and received medical aid for a rash “affecting his legs, arms, and abdominal areas” and “characterized by a burning sensation and incessant itching.” (PSOF at ¶ 4; Doc. 54 at 16). CACF medical staff placed Plaintiff in isolation and prescribed Ivermectin, Benadryl, Prednisone, and Bactrim for his scabies parasite infection.[1] (Defendants Norton and Glassey's Statement of Facts in Support of Motion for Summary Judgment, Doc. 33 (“DNGSOF”) at ¶ 13; PSOF at ¶ 6).

         Sometime prior to December 8, 2013, Plaintiff's rash reappeared, and CACF medical staff provided additional treatment and prescribed Bactrim, Prednisone, and Benadryl to Plaintiff. (DNGSOF at ¶ 13; PSOF at ¶ 7). Overall, between December 8, 2013 and March 24, 2014, CACF medical staff examined and treated Plaintiff 11 times for issues relating to Plaintiff's skin condition. (DNGSOF at ¶ 13). Nurse Practitioner Glassey treated Plaintiff during one of these appointments on January 26, 2014. (Id. at ¶ 15). During this appointment, Defendant Glassey prescribed Triamcinolone cream and Tolnaftanate cream after examining Plaintiff's skin rash. (Id. at ¶¶ 16, 17). Following this appointment, Plaintiff submitted at least one inmate grievance, which Defendant Norton responded to as part of her duties as Correctional Healthcare Company's (“CHC's”) Health Services Administrator for CACF. (Id. at ¶¶ 2, 12-14). In this grievance, dated March 17, 2014, Plaintiff sought an examination by a dermatologist. (Doc. 33-3 at 4-5). In conducting her review of Plaintiff's grievance, Defendant Norton found that his “complaints [were] addressed in a timely manner and all treatments [were] appropriate.” (DNGSOF at ¶ 14).

         On June 30, 2014, one of Plaintiff's treating CACF physicians referred Plaintiff to see an offsite dermatologist. (PSOF at ¶¶ 9, 10; Doc. 54 at 18). Plaintiff's dermatologist appointment took place over five months later on December 16, 2014. (PSOF at ¶ 10; Doc. 54 at 30-33). At the appointment, a complete skin examination revealed Plaintiff's continuing or recurring scabies infestation. (PSOF at ¶¶ 15-16). The dermatologist prescribed Permethrin, Triamcinolone, Doxepin, and Ivermectin to Plaintiff. (Doc. 54 at 31). Plaintiff described this treatment as “effective.” (Doc. 53 at 12).


         Summary judgment is appropriate when “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). A party asserting that a fact cannot be or is genuinely disputed must support that assertion by “citing to particular parts of materials in the record, ” including depositions, affidavits, interrogatory answers or other materials, or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1). Thus, summary judgment is mandated “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).

         Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] 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)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the trial judge's function is to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Liberty Lobby, Inc., 477 U.S. at 249-50. If the evidence is merely colorable or is not significantly probative, the judge may grant summary judgment. Id.

         III. ANALYSIS

         Plaintiff alleges that Defendants Ryan, Norton, and Glassey violated his rights under the Eighth Amendment.[2] (See Doc. 11 at 5, 7, 9). By seeking a remedy for violations of constitutional rights, Plaintiff alleges a violation of 42 U.S.C. § 1983. A plaintiff asserting a claim for relief under § 1983 must prove that: “(1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a constitutional right.” L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992). State officials or municipalities are liable for deprivations of life, liberty, or property that rise to the level of a “constitutional tort” under the Due Process Clause of the Fourteenth Amendment. Johnson v. City of Seattle, 474 F.3d 634, 638 (9th Cir. 2007).

         Here, Defendants do not dispute that they acted under the color of law. At issue then is whether Defendants' actions deprived Plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States.

         A. Eighth Amendment Inadequate Medical Care

         Plaintiff alleges that Defendants Ryan, Norton, and Glassey violated his Eighth Amendment right to adequate medical care. (Doc. 11 at 5, 7, 9). “Denial of medical attention to prisoners constitutes an Eighth Amendment violation if the denial amounts to deliberate indifference to serious medical needs of the prisoner.” Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). There are two prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. Under the objective prong, a prisoner must show a “serious medical need.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (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 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (citation omitted).

         Under the subjective prong, a prisoner must show: “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting 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 ‘the 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 factfinder 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) (quotations 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), “by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm, ” Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003), or by a purposeful act or failure to respond to a prisoner's pain or possible medical need, even if a prisoner cannot show that his harm was substantial, Jett, 439 F.3d at 1096; see also McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant's activities resulted in ‘substantial' harm to the prisoner is not necessary.”). Nevertheless, 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, 680 F.3d at 1122 (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).

         1. Serious Medical Need

         The parties do not dispute that Plaintiff had a serious medical need.[3] Nor is there any dispute that Plaintiff's scabies infestations were worthy of treatment. On this record, a jury could find that Plaintiff's condition constituted a serious medical need. See, e.g., Castillo v. Solano Cty. Jail, No. 2:08-cv-3080 GEB KJN P., 2011 WL 3584318, at *13 (E.D. Cal. Aug. 12, 2011) (noting “the weight of authority supports a finding that scabies presents a serious medical need”). But see Allen v. Gaskins, C/A No. 0:08-1338-SB-PJG, 2010 WL 1010014, at *3 (D.S.C. Feb. 18, 2010) (holding that a plaintiff failed to present “evidence from which a reasonable jury could find that his [scabies infestation] presented a substantial risk to his health or safety” partly because scabies “is a non-life threatening skin condition” with “limited” symptoms). The Court therefore turns to the subjective prong of the deliberate indifference analysis.

         2. ...

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