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Tripati v. Corizon Inc.

United States District Court, D. Arizona

January 23, 2018

Anant Kumar Tripati, Plaintiff,
v.
Corizon Incorporated, et al., Defendants.

          ORDER

          Hon. David C. Bury Judge

         On January 26, 2016, Plaintiff Anant Kumar Tripati, who is now confined in the Arizona State Prison Complex, East Unit, in Florence, Arizona, filed a pro se civil rights Complaint under 42 U.S.C. § 1983 in the District Court for the Middle District of Tennessee. Plaintiff sued Corizon Inc. (“Corizon”), a private corporation that has contracted with the Arizona Department of Corrections (ADC) to provide healthcare to ADC inmates; officers or general counsel for Corizon and Corizon staff who work or worked at ADC facilities; and numerous ADC employees, including the ADC Director, Charles L. Ryan. Plaintiff filed a motion for leave to amend his Complaint with a proposed first amended complaint (Doc. 15-1) and later paid the $400 filing and administrative fees (Doc. 21).[1] The Tennessee court transferred the case to this District as the proper venue. After the case was transferred, Plaintiff filed a motion for extension of time to complete the court-approved form complaint for use by prisoners (Doc. 25) and a notice of filing a second amended complaint (Doc. 26) with a Second Amended Complaint (Doc. 27). The Court denied Plaintiff's motion to amend (Doc. 15), granted Plaintiff leave to file his Second Amended Complaint, and gave Plaintiff 30 days to file a certificate certifying his signature on the certificate constituted his signature on the Second Amended Complaint (Doc. 29). Plaintiff filed a signature certificate (Doc. 31). Plaintiff subsequently filed a motion to amend or correct the Second Amended Complaint (Doc. 36) with a proposed Third Amended Complaint (TAC) (Doc. 36-1).

         On March 7, 2017, the Court granted Plaintiff's motion to amend and ordered the lodged TAC filed. The Court screened the TAC and dismissed it for failure to state a claim with leave to amend to attempt to cure its deficiencies (Doc. 43). Shortly before that Order was filed, Plaintiff filed a document captioned as “Notice of Filing a Typed Complaint” (Doc. 40), which the Clerk of Court filed as a motion for leave to amend the TAC and lodged the “Typed Complaint” as a proposed “Fourth Amended Complaint” (Doc. 41). The Court granted Plaintiff 30 days in which to file any revised fourth amended complaint in compliance with the March 7, 2017 Order (Doc. 44). The Court stated that if Plaintiff failed to file a revised fourth amended complaint, the Court would grant Plaintiff's motion for leave to file his typed complaint (Docs. 40 and 41). Several days later, Plaintiff filed a revised Fourth Amended Complaint (Doc. 45). On September 19, 2017, the Court denied Plaintiff's motion for leave to file the typed complaint as moot.[2] (Doc. 56.)

         On September 25, 2017, Plaintiff filed a motion for leave to file a fifth amended complaint (Doc. 57), and lodged a proposed Fifth Amended Complaint (Doc. 59), and he filed an ex parte motion for a temporary restraining order (Doc. 58); an Appendix in support of his request for injunctive relief (Doc. 60); a notice of errata concerning his proposed Fifth Amended Complaint (Doc. 61); and a supplement to his motion for injunctive relief (Doc. 62). On January 12, 2018, Plaintiff filed a Motion to Stay and Abate Time because he has recently received documents “which may be relevant to issues in this case.” (Doc. 63).

         The Court will deny Plaintiff's motion for leave to amend and his motion for injunctive relief, which seeks relief on claims presented for the first time in his proposed Fifth Amended Complaint. The Court will deny Plaintiff's motion to stay because the documents Plaintiff references relate to a claim previously dismissed; in this action, the Court dismissed Plaintiff's claim for injunctive relief based on alleged violations of stipulations approved by the court in Parsons v. Ryan, CV 12-601-PHX-DKD, a class action concerning medical care provided to prisoners in ADC custody ADC.[3] See (Order (Doc. 56) at 3) (finding decree in Parsons does not provide basis for relief). The Court will dismiss the Fourth Amended Complaint for failure to state a claim and this action.

         Plaintiff's other motions will be denied.

         I. Motion for Leave to Amend

         Plaintiff commenced this action in January 2016, and it has not yet been served on any Defendant. Fed. R. Civil Procedure 4(m) requires a complaint be served within 90 days. The Court has freely granted him leave to amend, pursuant to Fed.R.Civ.P. 15(a)(2), but now denies him leave to file the Fifth Amended Complaint because the repeated amendments have precluded timely service, and because the proposed Fifth Amended Complaint largely fails to comply with this Court's Local Rules of Civil Procedure or with the Instructions for a prisoner complaint.

         A complaint having the factual elements of a cause of action scattered throughout the complaint and not organized into a “short and plain statement of the claim” may be dismissed for failure to satisfy Rule 8(a) of the Federal Rules of Civil Procedure. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). In addition, Local Rule 3.4 of the Local Rules of Civil Procedure requires incarcerated persons to use court-approved form complaints. The form complaint must be signed and legibly written and completed in accordance with the instructions provided.

         The Instructions for completing the court-approved complaint form for use by prisoners provides in relevant part that: “If needed, you may attach additional pages, but no more than fifteen additional pages, of standard letter-sized paper. You must identify which part of the complaint is being continued and number all pages. If you do not fill out the form properly, you will be asked to submit additional or corrected information, which may delay the processing of your action. You do not need to cite law.” (Instructions at 1) (Italics added for emphasis).

         The Instructions further provide that:

1. Counts. You must identify which civil right was violated. You may allege the violation of only one civil right per count.
2. Issue Involved. Check the box that most closely identifies the issue involved in your claim. You may check only one box per count. If you check the box marked “Other, ” you must identify the specific issue involved.
3. Supporting Facts. After you have identified which civil right was violated, you must state the supporting facts. Be as specific as possible. You must state what each individual defendant did to violate your rights. If there is more than one defendant, you must identify which defendant did what act. You also should state the date(s) on which the act(s) occurred, if possible.
4. Injury. State precisely how you were injured by the alleged violation of your rights.

(Instructions, part C) (italics and underlining added for emphasis).

         Plaintiff did not use the court-approved form complaint for use by prisoners for his proposed Fifth Amended Complaint. Although typed, his proposed Fifth Amended Complaint fails to substantially comply with the requirements of that form and the Instructions for completing the form complaint. Plaintiff also alleges multiple claims in each count and he fails to allege supporting facts showing what each individual defendant did to violate his rights. Further, although it ostensibly complies with the page limits for a prisoner complaint, Plaintiff's proposed Fifth Amended Complaint is single-spaced, contains more than twice the 28 lines per page allowed, is in either a fixed-pitch type size smaller than ten pitch or a proportional font size less than 13 point, and the left margin is approximately ¼ to ½ inch. Compare Local Rule 7.1(b)(1) (requiring all documents to be typed double-spaced, not to exceed 28 lines per page and pages numbered, left margin not less than 1½ inches and the right margin shall not be less than ½ inch, with all pleadings, motions and other original documents to be in a fixed-pitch type size no smaller than ten (10) pitch (10 letters per inch) or in a proportional font size no smaller than 13 point).

         Some of the deficiencies of the proposed Fifth Amended Complaint are shared by the Fourth Amended Complaint. However, the Fourth Amended Complaint is modestly easier to follow and less convoluted and rambling than the proposed Fifth Amended Complaint. Plaintiff appears to primarily seek leave to amend to shoe-horn new wholly unrelated claims to those asserted thus far in this case. Under these circumstances, the Court will deny Plaintiff's motion for leave to amend and instead will screen the Fourth Amended Complaint. Because Plaintiff's ex parte application for a temporary restraining order seeks relief unrelated to his allegations in the Fourth Amended Complaint, the Court will deny that motion as well. See Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (an injunction should not issue if it “is not of the same character, and deals with a matter lying wholly outside the issues in the suit”).

         II. Plaintiff's Remaining Pending Notices and Motions

         Plaintiff has filed a notice of retaliatory action (Doc. 53). In this document, Plaintiff states that he made a public records request for documents submitted by Corizon, Wexford, or Trinity with their bids for contracts with ADC, and reports concerning compliance in Parsons v. Ryan, No. CV 12-00601-PHX-DKD, a class action concerning medical care provided to ADC prisoners. Plaintiff asserts that as a consequence of seeking this information, he has suffered retaliation in the form of disciplinary charges and interruption in the delivery of mail. Plaintiff does not describe any particular incident and merely makes vague and conclusory assertions. To the extent that Plaintiff intended to seek any relief in this notice, it will be denied.

         As described above, Plaintiff's Fourth Amended Complaint is pending before this Court for screening, but Plaintiff has filed a motion for leave to file a compact disc and for leave to file a supplemental complaint (Doc. 50) with a proposed supplemental complaint (Doc. 51). Rule 15(d) of the Federal Rules of Civil Procedure provides that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” As described above, Local Rule 7.1(b)(1) imposes additional requirements for filings.

         On the disc submitted by Plaintiff are 20 single-spaced pages of allegations, most of which do not concern events that have occurred since the filing date of the pleading to be supplemented, i.e., Plaintiff's March 15, 2017 Fourth Amended Complaint (Doc. 45). Thus, Plaintiff's purported supplemental complaint fails to substantially comply with Rule 15(d). It also fails to substantially comply with Local Rule 7.1(b). The proposed supplemental complaint is single-spaced, contains well over 28 lines per page, and is not in a fixed pitch type size no smaller than 10 or in a proportional font size no smaller than 13 point. Indeed, when converted to a proportional font size of 13, the supplemental complaint is more than 60 pages long. For these reasons, Plaintiff's motion for leave to file a supplemental complaint will be denied.

         Although Plaintiff's motion for leave to file a supplemental complaint will be denied, the Court does consider exhibits to that motion that appear relevant to allegations in the Fourth Amended Complaint and/or events that have occurred since the filing of the Fourth Amended Complaint. Similarly, the Court does consider exhibits to certain of Plaintiff's other notices to the extent relevant to his claims and to the extent they clarify Plaintiff's allegations. The Court, accordingly, considers the attachments relied on herein as supplemental documents to the Fourth Amended Complaint. See United States v. Ritchie, 342 F .3d 903, 908 (9th Cir.2003) (court may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters that can be judicially noticed under Fed.R.Evid. 201).

         III. 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.” Iqbal, 556 U.S. at 678. “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)).

         IV. Fourth Amended Complaint

         In his seven-count Fourth Amended Complaint, [4] Plaintiff asserts claims for denial of constitutionally adequate medical care (Count I), exposure to environmental tobacco smoke (ETS) (Count II), violation of his religious exercise rights (Count III), retaliation (Count IV), fraud on the court (Count V), spoliation (Count VI), and violation of equal protection (Count VII). In several counts, Plaintiff includes allegations that are more properly considered in conjunction with a different count, e.g., allegations of retaliation included in Count I are more properly considered in conjunction with Count IV. The Court considers allegations together, i.e. retaliation allegations are considered together.

         Plaintiff sues Corizon, Inc. (“Corizon”), and the following Corizon officers as policymakers for Corizon: Drs. Calvin Johnson, Woodrow Myers, and Harold Orr; B. Anderson Flatt; Tracy Nolan; Jonathan Walker[5]; Karey Witty; and Scott Bowers. Plaintiff also sues Dr. Winfred Williams, whom Plaintiff identifies as the Corizon Regional Director. Further, Plaintiff sues Beecken, Petty, O'Keefe & Company (BPOC), a Chicago-based private equity management firm “founded in 1996 to invest in middle-market buy-out transactions, recapitalizations, and growth platforms exclusively in the healthcare industry, ”[6] as an alleged policymaker for Corizon.

         Plaintiff sues the following current or former Corizon employees who are or were employed at ADC complexes: Drs. Lucy Burciaga (Tucson Complex), Dr. Christopher Johnson (East Unit in the Florence Complex); Nurse Practitioners (NPs) Christina Armenta (Tucson Complex) and Joanna Grafton (East Unit); Registered Nurses (RNs) Angela Martinez, Tamara Porter, Lisa Lyons, and Marlene Bedoya all at the Tucson Complex.

         In addition, Plaintiff sues the following current or former ADC employees: Director Charles Ryan; legal monitors Julia Erwin and Daryl Johnson; Appeals Officers Julliette Respicio-Moriarty, Heather Richardson, Cheryl Dossett, and Elizabeth Valencia; ADC Medical Manager Dr. David Robertson (Phoenix); Classification Officer Stacy Crabtree; Florence Complex Deputy Warden (DW) Annemarie Smith-Whitson; Tucson Complex DWs Glen Pacheco, [7] Panaan Days, and Anna Jacobs; Corrections Officer (CO) IV Debra Han (Tucson); paralegal Betty Ulibarri; and Regional Director Timothy Lawrence. Finally, Plaintiff also sues Arizona Attorney General Mark Brnovich, [8] and current or former Assistant Arizona Attorneys General Susan Rogers, Karyn Klausner, [9]Kelley J. Morrissey, and Paul Edward Carter. Plaintiff describes virtually all of the Defendants as policymakers or “special policymakers” for Corizon, ADC, or the Arizona Attorney General's Office. (Doc. 45 ¶ 41.) Plaintiff seeks declaratory, injunctive, and compensatory relief.

         V. Failure to State a Claim

         Plaintiff alleges claims under 42 U.S.C. § 1983 in Counts I through VII. To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Further, a “‘plaintiff generally must assert his own legal rights and interests, and cannot assert the legal rights or interests of third parties.'” Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 610 (9th Cir. 2005) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).[10]

         To state a claim against a defendant, “[a] plaintiff must allege facts, not simply conclusions [to] show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his or her official capacity, a plaintiff must allege injuries resulting from a policy, practice, or custom of the agency over which that individual has final policy-making authority. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). In addition, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights, absent more, does not make him liable. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor in his personal capacity “is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. Further, under Ninth Circuit law, a defendant can be liable for failure to act. Id. Generally, whether a defendant's denial of administrative grievances is sufficient to state a claim depends on several facts, including whether the alleged constitutional violation was ongoing, see e.g., Flanory v. Bonn, 604 F.3d 249, 256 (6th Cir. 2010), and whether the defendant who responded to the grievance had authority to take action to remedy the alleged violation, see Bonner v. Outlaw, 552 F.3d 673, 679 (8th Cir. 2009).

         A. Policymaker Allegations

         Plaintiff alleges that virtually every Defendant is a “policymaker” or a “special policymaker.”[11] However, Plaintiff generally fails to allege facts to support that any Defendant, other than officers or directors of Corizon, Director Ryan for ADC, and Arizona Attorney General Brnovich for the Arizona Attorney General's Office, had “final policymaking authority” over Corizon, ADC, or the Arizona Attorney General's Office, respectively. Plaintiff fails to allege facts to support that any other Defendant promulgated policies as a final policymaker that resulted in claimed injuries; he makes only vague and conclusory assertions. Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pleaded. Id. Therefore, with the exception of Defendant officers or directors for Corizon, Ryan as Director of ADC, and Arizona Attorney General Brnovich, Plaintiff's policymaker allegations will be dismissed and are not discussed further herein.

         B. Count I

         Plaintiff designates Count I as a claim for the denial of constitutionally adequate medical care. Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

         “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Jett, 439 F.3d at 1096.

         Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross negligence will constitute deliberate indifference.” Clement v. Cal. Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference, ” “negligence, ” or “medical malpractice” do not support a claim under § 1983). “A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

         The Court considers Plaintiff's allegations in two parts: 1) Plaintiff's claim that he was allegedly denied a medical diet to address claimed allergies and 2) non-diet issues regarding allegations that medication is improperly dispensed in the East Unit, Defendants delay access to specialists, and retaliatory conduct.

         1. Medical Diet

         When the Court screened the TAC, it found that Plaintiff appeared to be attempting to re-litigate claims raised in CV 11-00195 TUC AWT:

Plaintiff has not alleged facts to support the existence of a change in circumstances since summary judgment was granted for the defendants in his previous case. Instead, Plaintiff appears to be attempting to re-litigate claims and issues resolved against him in his prior case. Further, Plaintiff does not plausibly allege that he suffers from symptoms as a result of the diet he receives and eats. Plaintiff's attempts to explain why the RAST test was invalid could and should have been raised in Plaintiff's prior case or on appeal from summary judgment in that case. While this Court does not discount the possibility that despite the result of the previous RAST test, Plaintiff may suffer from some condition that is aggravated by the vegetarian diet provided by ADC, Plaintiff simply fails to plausibly allege facts to support that has occurred or plausible facts to support that any Defendant has acted with deliberate indifference to such condition, including specifically when, who, and how.
Plaintiff's allegations in this portion of Count I are vague, confusing, and lack specificity. Plaintiff fails to allege facts to differentiate his contentions in this case from those that were decided against him in his previous case. For both reasons, Plaintiff fails to state a claim in this portion of Count I and it will be dismissed.

(Order (Doc. 43) at 14-15.) This remains true. The Fourth Amended Complaint has not cured the deficiencies found in the TAC.

         Beginning with Tripati v. Johnson, No. CV 11-00195-TUC-AWT, Plaintiff alleged that he was allergic to numerous foods included in ADC's vegetarian diet, which Plaintiff received as a religious dietary accommodation his Hindu religion. Tripati, No. CV 11-00195 TUC-AWT, Doc. 18 at 5. Plaintiff alleged that he was forced to choose between a vegetarian diet that accorded with his religious beliefs or a medical diet that did not contain items to which Plaintiff claimed to be allergic, but which included meat. Id.

         In CV 11-00195 TUC-AWT, Judge Tashima granted the defendants summary judgment. Judge Tashima explained that:

Defendants have carried their initial burden of showing that there is no genuine issue of material fact as to Tripati's Eighth Amendment and RLUIPA claims. Tripati's deliberate indifference argument rests on Defendants' refusal to provide Tripati with a diet that accommodated his allergies. When Tripati requested a special allergy diet, Defendants had no record that Tripati had ever been tested for food allergies. DSOF ¶ 35. ADC uses the RAST blood test as an initial screening to determine an inmate's food allergies. DSOF ¶ 32. FHA Greeley told Tripati that ADC would accommodate his allergies once they were confirmed through the RAST test. Id. Tripati refused to take the RAST test. DSOF ¶ 41. Defendants then discontinued Tripati's allergy diet and instead issued him a religion-based, vegetarian diet. DSOF ¶ 41. These facts indicate that there is no triable issue as to Tripati's allegation that Defendants were deliberately indifferent to Tripati's alleged food allergies. See McGuckin, 974 F.2d at 1060 (“A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established.”); Miller v. Sloan, 2005 WL 3262978, at *3 (D. Ariz. 2005) (granting summary judgment in favor of prison officials where officials denied inmate a special allergy diet and inmate's allergy test results returned negative).

Id. at 5 (footnotes omitted).

         Judge Tashima specifically noted that on January 27, 2014, the defendants had provided the Court with a report reflecting that they had performed RAST allergy testing on Plaintiff and found no evidence of his alleged food allergies. Id. n.4. He concluded this negative test result further confirmed the Court's decision, id., that “Tripati presents no evidence that Defendants knew of and consciously disregarded an excessive risk to Tripati's health. Tripati instead argues that the RAST test is unreliable and has been replaced by the allergy testing procedure set forth at www.niaid.nih.gov/topics/foodallergy/clinical. PSOF at 2-3; PSOF Ex. G; Pl.'s Reply (Doc. 172) at 1-4. Tripati's evidence shows no more than a difference in medical opinion as to the reliability and necessity of using the RAST test. But a difference in medical opinion does not amount to deliberate indifference.” Id. at 6-7 (citations omitted). Finding that Tripati failed to create a triable issue of fact regarding deliberate indifference, Judge Tashima held that the RLUIPA claim failed too because it centered on his alleged need for an allergy diet; it was undisputed that he was receiving a vegetarian diet which accommodated his religion. Id.

         In the Fourth Amended Complaint, Plaintiff has alleged intervening events since the entry of summary judgment in CV 11-00195 TUC-AWT, and he claims that defendants in CV 11-00195 TUC-AWT concealed or falsified evidence in that case and perpetrated a fraud on the court, which he raises as an independent claim in Count V, as a work-around to the res judicata bar noted by the Court when it screened the TAC. Plaintiff's allegations in the Fourth Amended Complaint are mostly vague and conclusory, but copies of the supplemental documents submitted by Plaintiff both clarify his allegations concerning his medical diet claim and support his assertion of changed circumstances since summary judgment was granted in CV 11-00195 TUC-AWT.

         The Plaintiff is now receiving a medical diet, responsive to his alleged allergies. On August 28, 2014, Corizon Medical Director Sylvia McQueen issued a Restricted Diet Order (RDO) for Plaintiff, specifically, an allergy diet excluding dairy, wheat, soy, nuts, or beans with a start date of September 2, 2014. (Doc. 50 at 11.)

         The RDO forms contained a section to be completed by medical staff to authorize a medical diet and a section to be completed by prison staff, presumably religious staff, to authorize a religious diet. (Docs. 50 at 11, 48 at 4.) Each RDO form also contained a “NOTICE TO INMATE, ” which stated that medical diets take precedence over religious diets. (Id.) The medical diet sections of both RDO forms were signed by Corizon medical staff, i.e., McQueen and Daye. (Id.) Hand-written notations on each RDO stated that RAST testing was not required, but it is unclear who made the notations, i.e., McQueen, Daye, or possibly Plaintiff. (Id.) Neither of the religious diet sections of the RDOs was signed by prison staff or anyone else, notwithstanding hand-written notations stating “Hindu” and “Vegan Diet only.” (Id.) In short, the RDOs do not reflect that Plaintiff was approved to receive a religious diet, but only that he was approved to receive a medical diet. See also, (Doc. 50 at 10 (denying Plaintiff's request for a Hindu/Vegan diet because it was a religious diet that was under the purview of the chaplain)

         The supplemental documents reflect that since August 28, 2014, Plaintiff has been issued a Restricted Diet Order (RDO) for an allergy diet excluding dairy, wheat, soy, nuts, or beans. (Doc. 50 at 11); see also RDOs (September 12, 2014, NP Catalina Daye issued an RDO, which provided that Plaintiff be given a diet with a start date of September 12, 2014 that did not contain dairy, wheat, or peanuts. (Doc. 48 at 4.); July 8, 2016 RDO, NP Grafton ordered an allergy diet, excluding corn, wheat, milk, peanuts or tree nuts, soy, and egg, for Plaintiff. (Doc. 49 at 6.); Plaintiff apparently received an allergy diet between July 8, 2016 and May 23, 2017, because in a May 23, 2017 response to Plaintiff's Medical Grievance Appeal of June 30, 2017, C. Ngmube issued an RDO to Plaintiff for an allergy diet, excluding beans, soy, dairy, wheat, and peanuts and with an expiration date of June 26, 2018. (Doc. 50 at 14.)[12]

         Plaintiff has acknowledged that he is receiving an allergy diet without soy, wheat, dairy, beans, or nuts. (Id. at 1.) Further, Plaintiff states that since May 2017, he has received a vegetarian allergy diet and that an unnamed person has told him that he will receive that diet, i.e., a vegetarian allergy diet, until “such time [that] Central Office directs East Unit not to give the diet” since “they have all the raw materials[.]” (Id. at 2-3.) Plaintiff states that since he began receiving the diet, his blood sugar does not fluctuate and he does not feel weak. (Id.) He claims that this shows that “Defendants” have the ability and materials to give him “the diet as ordered August 28, 2014[.]” (Id.)

         As an initial matter, the August 28, 2014 RDO did not authorize Plaintiff to receive a vegetarian allergy diet. Instead, Dr. McQueen ordered an allergy diet for Plaintiff, but she did not prescribe that Plaintiff receive a vegetarian allergy diet for medical reasons. As described above, no medical or prison official authorized a vegetarian allergy diet.[13] Similarly, ...


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