United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge
On
February 12, 2018, Plaintiff Patrick Newman, who is confined
in the Arizona State Prison Complex-Florence, filed a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983 and
an Application to Proceed In Forma Pauperis. In a February
21, 2018 order, the Court denied the deficient Application to
Proceed and gave Plaintiff 30 days either to pay the filing
and administrative fees or file a complete Application to
Proceed and a certified six-month inmate trust account
statement. On March 2, 2018, Plaintiff filed an inmate trust
account statement and a response to the Court's February
21, 2018 order, but did not file a new Application to
Proceed. In a May 7, 2018 order, the Court gave Plaintiff 30
days either to pay the filing and administrative fees or file
a complete Application to Proceed. On June 4, 2018, Plaintiff
filed a new Application to Proceed. In a June 14, 2018 order,
the Court granted the Application to Proceed and dismissed
the complaint because Plaintiff had failed to state a claim.
The Court gave Plaintiff 30 days to file an amended complaint
that cured the deficiencies identified in the order.
On July
12, 2018, Plaintiff filed his First Amended Complaint. In a
July 19, 2018 order, the Court dismissed the First Amended
Complaint for failure to state a claim. The Court gave
Plaintiff 30 days to file a second amended complaint that
cured the deficiencies identified in the order.
On
August 17, 2018, Plaintiff filed a Second Amended Complaint
(Doc. 13). The Court will order Defendant Corizon to answer
Count One and Defendant Craig to answer Count Two.
I.
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.”
Id. “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)).
II.
Second Amended Complaint
In his
two-count Second Amended Complaint, Plaintiff sues Corizon
Health Inc. (“Corizon”) and Doctor Kevin Craig.
He asserts two claims of inadequate medical care and seeks
injunctive and monetary relief.
In
Count One, Plaintiff alleges the following:
On
December 29, 2015, Plaintiff submitted an emergency Health
Needs Request (HNR) to Corizon, requesting to see an ear,
nose, and throat specialist due to a possible infection above
his left eye. Before he filed the HNR, Plaintiff had been
seen by Corizon Assistant Nurse Practitioner Brower. Brower
diagnosed Plaintiff with inflammation of fatty tissue, which
Brower “compared to his arm.” Plaintiff alleges
that Brower misdiagnosed Plaintiff, that Corizon's
Assistant Nurse Practitioners are not qualified to diagnose
serious medical illnesses, and that they “use a medical
site to diagnose patients.” Plaintiff received a
response to the emergency HNR that said, “Referred to
providers line.” Plaintiff alleges that Corizon failed
to follow its own medical policies on emergent medical needs
and that, by policy, an inmate with an emergent need must be
seen within 24 hours after an HNR is received, or immediately
if identified with an emergent need, or on the same day if
identified as having an urgent need. Plaintiff alleges that
Corizon “health staff” were 43 days late seeing
Plaintiff for emergent care. Plaintiff filed other HNRs until
he was finally seen by Brower in February 2016.
Through
CT scans, Plaintiff was diagnosed with a brain tumor, which
was surgically removed in February 2016. Since the surgery,
Plaintiff has had three follow- up appointments scheduled
with “neurosurgeon specialists, ” which have all
been cancelled. Plaintiff alleges that, due to
“negligence [and] deliberate indifference, ”
Corizon “health staff” did not send medical
reports with Plaintiff's transport officers to any of the
three follow-up appointments. The neurosurgeons told
Plaintiff that “they could not diagnose or treat
patient[s] without medical records.” Corizon “was
notified and would not even fax over medical records due to
medical records could not be located.” Neurosurgeons
and transport officers called the medical unit. Plaintiff
filed an Informal Grievance “on this medical
issue.” Corizon's response, written by Supervisor
Fenwick on October 24, 2017, was: “I have sent a
request to the clinical coordinator to reschedule and send
medical records to off-site provider.” Plaintiff filed
Informal Grievances on January 21, 2018 and February 12,
2018. He received a response on March 16, 2018 that stated:
“You are to await to see neurosurgeon.” Plaintiff
still has not ...