Newman v. Ryan

          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 ...