United States District Court, D. Arizona
ORDER
James
A. Teilborg, Senior United States District Judge
Plaintiff
Frank Jarvis Atwood, who is currently confined in the Arizona
State Prison Complex (ASPC)-Eyman, brought this civil rights
action pursuant to 42 U.S.C. § 1983. (Doc. 1.) Pending
before the Court are Plaintiff's Motion for Partial
Summary Judgment Against Defendants Gay and Barker (Doc. 44);
Defendants' Motion for Summary Judgment (Doc. 75); and
Plaintiff's Objection to and Motion to Strike
Defendants' Summary Judgment Reply (Doc.
85).[1]
The
Court will deny Plaintiff's Motions and will grant in
part and deny in part Defendants' Motion. . . . .
I.
Background
Upon
screening of Plaintiff's Complaint pursuant to 28 U.S.C.
§ 1915A(a), the Court determined that Plaintiff stated
Eighth Amendment medical care claims in Counts One through
Four and ordered Defendants Gay, Barker, Babich, Johnson, and
Corizon to respond to the Complaint. (Doc. 15.)
II.
Plaintiff's Objection to or Motion to Strike
Defendants' Reply
Plaintiff
moves to strike Defendants' Reply in support of their
Motion for Summary Judgment on the basis that it contains
“knowingly false material facts” and that
Defendants are “maliciously seeking to mislead and
deceive.” (Doc. 85.) Plaintiff cites to 3 of
Defendants' statements in which they assert that
Plaintiff has not provided evidence to support his claims and
that Plaintiff's pain and urinary issues have been
consistently treated. Plaintiff then cites to evidence to
dispute these statements. As such, Plaintiff's Motion is
more properly characterized as a sur-reply, which is not
permitted under the Court's local rules absent a motion
for leave to file a sur-reply, which Plaintiff did not file.
The
Court is mindful of the Ninth Circuit's instructions to
construe motions liberally when filed by pro se prisoners and
to avoid applying summary judgment rules strictly. Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (courts
must “construe liberally motions papers and pleadings
filed by pro se inmates and . . . avoid applying summary
judgment rules strictly”); Karim-Panahi v. L.A.
Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Because Plaintiff's objections go to Defendants'
interpretations of his medical records, when an asserted fact
relies on a medical record, the Court will consider the
medical record itself and not counsel's interpretation of
the record.
Accordingly,
Plaintiff's Objection to and Motion to Strike will be
denied.
III.
Summary Judgment Standard
A court
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.
If the
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); however, it must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P.
56(c)(1).
At
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3).
IV.
Relevant Facts[2]
Since
1990, Plaintiff has suffered from numerous spinal diseases
including degenerative disc and joint disease, herniated
discs, scoliosis, stenosis, narrowed vertebrae, sciatica with
radiculopathy, neuralgia, chronic pain, and partial
paralysis. (Doc. 79-2 at 43 ¶ 2 (Pl. Decl.); see
also Doc. 45 at 11, 15, 17, 28, 31, 35, 43, 51-52, 54,
60, 66, 92-93, 107.) Plaintiff has been in a wheelchair since
September 2015. (Doc. 79-2 at 43 ¶ 3; Doc. 48 ¶ 3.)
Treatment for Plaintiff's spinal degeneration and severe
pain includes a TENS unit, lower back support, an ADA
[Americans With Disabilities Act] shower, a permanent
wheelchair, handicap ramps/bars, and medications. (Doc. 48
¶ 6; see, e.g., Doc. 45 at 35, 37, 39, 52, 54,
64, 72, 95, 102, 107, 109.) In 2007, Plaintiff was treated by
an outside doctor for urinary voiding issues. (Doc. 45 at
74.)
On
March 10, 2017, Plaintiff saw Defendant Gay, a Nurse
Practitioner (NP), for a medication review; Plaintiff
requested an increase in his Tramadol dosage for pain
management. (Doc. 76 at 1 ¶ 1 and at 18.) Gay examined
Plaintiff, noting that he was wheelchair bound, and that he
showed mild tenderness to palpation in the lumbar and
thoracic spine and the left sacroiliac joint extensor
muscles. (Id.) He also exhibited mild muscle
atrophy, weakness in the left arm and right knee, slightly
decreased deep tendon reflexes in the left arm, mild
tenderness to palpation in the left rhomboids, and no
decreased range of motion in the hips and knees.
(Id.) Gay diagnosed Plaintiff with unspecified viral
hepatitis C without hepatic coma, radiculopathy in the
lumbosacral region, and chronic neuropathic breakthrough
pains at night due to spinal stenosis and radiculopathy.
(Id.) Gay renewed Plaintiff's Tramadol
prescription at the current dosage and prescribed a back
support belt, knee sleeve, and TENS unit. (Id. at
19.)
On
April 13, 2017, Plaintiff fell and injured his shoulder; he
was taken to an outside emergency room and was prescribed
medications and a sling. (Doc. 79-2 at 43 ¶ 7.)
In May
2017, Plaintiff experienced increasing pain, numbness, and
immobility due to his spinal disease and submitted 6 Health
Needs Requests (HNRs) regarding these issues. (Doc. 79 at 2
¶ 6; Doc. 79-2 at 43 ¶ 8.) In a May 4, 2017 HNR,
Plaintiff wrote that he needed a new Tramadol prescription
and a renewal of Robaxin.[3] (Doc. 79 at 63.) Plaintiff said the
pain in his neck and back had increased, he had numbness in
his hands and feet, and “jolts of numbness in both
upper legs.” (Id.) In a May 14, 2017 HNR,
Plaintiff wrote that his Tramadol had not yet been renewed
and he was experiencing “much pain, numbness and
difficulty urinating.” (Id. at 69.)
On May
17, 2017, Plaintiff saw RN Ortiz for his complaints of
urinary retention. (Doc. 76 at 2 ¶ 2 and at 25.)
Plaintiff told Ortiz that he needed to see the physician
because he was having to put his finger in his rectum and
press against his prostate to empty his bladder.
(Id. at 25.) Ortiz observed Plaintiff insert a
catheter and withdraw some cloudy urine and he was educated
on the proper method of inserting a catheter and voiding into
a urinal. (Id.) A urinalysis was performed and the
results were given to Gay. (Id.) Gay gave Ortiz
permission to give Plaintiff a 12-gauge catheter and a
urinal. (Id.) Plaintiff was scheduled to see Gay the
following Monday. (Id. at 26.)
On May
18, 2017, Plaintiff submitted an emergency grievance stating
that he had still not seen a healthcare provider for his neck
and back pain and numbness, which was getting worse, and that
his pain medications had been “cut.”
(Id. at 48.) That same day, Plaintiff also filed an
Inmate Informal Complaint Resolution, in which he stated that
his “serious medical needs are being deliberately
disregarded” and that he needs help “for spinal
stenosis, scoliosis, degenerative disk disease, causing pain,
can't urinate, stress/anxiety.” (Id. at
53.) Plaintiff asked that his pain meds be renewed and that
someone “arrange immediate HCP [healthcare provider]
and specialist care” and he be awarded
punitive/compensatory damages and other relief.
(Id.)
On May
19, 2017, Plaintiff saw Gay for a medication review during
which Plaintiff requested an increase in his Tramadol
prescription. (Id. at 2 ¶ 3 and at 33.) At the
time, Plaintiff was taking 50 mg of Tramadol in the morning,
50 mg at noon, and 100 mg in the evening. (Id. at 42
¶ 8.) Plaintiff reported that he had neck discomfort and
stiffness, but Gay later observed he rotated his neck without
difficulty. (Id. at 33.) Gay discussed alternative
drug therapy options and Plaintiff expressed concerns with
Toradol, Amitriptyline, Tegretol, and Flexeril.
(Id.) Upon examination of Plaintiff, Gay noted that
Plaintiff was wheelchair bound, his lumbar and thoracic spine
were tender to palpation, he could lean forward and back in
his wheelchair without rigidity, and he was “neurologic
grossly intact; reflexes on all extremity.”
(Id.) She also noted slight muscle atrophy in
Plaintiff's lower extremities. (Id.) Gay
diagnosed Plaintiff with chronic pain, myalgia, and retention
of urine. (Id.) Gay decreased Plaintiff's
Tramadol to one 50 mg tablet twice a day and added Zonisamide
50 mg.[4] (Id. at 34.) Gay states that she
decreased Plaintiff's Tramadol prescription “as a
result of the new rules concerning long term narcotic use,
especially in prisoners.”[5] (Id. at 43 ¶ 11.)
Gay asserts that Plaintiff “had been on Tramadol for
years and [she] wanted to use an alternative treatment plan
for his pain management” and so she decreased his
Tramadol from 3 to 2 doses a day and added “a new
medication, a non-narcotic, to treat his pain.”
(Id.)
Gay
also addressed Plaintiff's complaint of an inability to
urinate, which he said had developed 4 days earlier.
(Id. ¶ 8.) Plaintiff states that Gay wanted a
urine sample and refused to allow Plaintiff to return to his
cell so that he could use his “process” to
provide the sample, which consisted of heating water to soak
tissue and applying the warmed tissue to the rectal opening.
(Doc. 79-2 at 44 ¶ 11.) Plaintiff further asserts that
Gay refused to wash the “filthy” catheter issued
on May 17 or provide a new catheter and would not allow him
to return to his housing unit until after he entered the
inmate toilet and used the “infected catheter” to
give the urine sample. (Id.) Gay denies that she
locked Plaintiff in a bathroom and forced him to use a
contaminated catheter. (Doc. 76 at 44 ¶ 12.)
Plaintiff's urine dip was negative for nitrites, blood
leukocytes, and bacteria, meaning there were no signs of
infection, and so Gay sent out for a routine urine culture
and test for PSA levels. (Id. at 42-43¶¶
8-9.)
In a
May 21, 2017 HNR, Plaintiff requested “urgent
care” for “extreme pain in neck, shoulders, back,
& legs” and Tramadol withdrawal due to Gay reducing
his Tramadol from 200 mg to 100 mg daily and changing the
time when the medication was administered so that he had
nothing between 3:00 pm and 11:00 am the next day. (Doc. 79-1
at 1.) The response dated May 30, 2017 says Plaintiff was
scheduled on the provider line. (Id.)
In a
May 23, 2017 HNR, Plaintiff wrote he could not get up for
breakfast or to use the toilet, he could not sleep, he was
suffering from Tramadol withdrawal, and had
“unbelievable neck & back pain.”
(Id. at 3.) Because of the pain, Plaintiff could not
get up and defecated in his pants. (Id.) The
response on the HNR says to “[p]lease send IM [inmate]
letter to M. Johnson FHA.” (Id.)
In a
May 24, 2017 HNR addressed to Dr. Babich, Plaintiff wrote
that pain was “precluding mobility” and that he
had been denied TENS supplies and analgesic cream.
(Id. at 5.) Plaintiff said that the decrease in
Tramadol had led to “cluster headaches and severe liver
pain, reinjury of shoulder, further hand/pelvic numbness,
significant emotional turmoil, in addition to tremendous
pain.” (Id.) The response to the HNR says
“[inmate] letter to FHA.” (Id.)
On May
24, 2017, Defendant Facility Health Administrator (FHA)
Johnson received Plaintiff's May 18, 2017 emergency
grievance, which Johnson determined was not an emergency
“in light of the fact that he had seen a provider
regarding the issues the day after he wrote the
grievance.” (Doc. 76 at 4 ¶ 7 and at 47-48.)
In a
May 27, 2017 HNR, Plaintiff wrote that he had been using the
same catheter for a week and a half, that it burns when he
urinates, his urine is cloudy and has a “horrible
smell, ” that his right testicle is sensitive and
hurts, and he suspects he might have a urinary tract
infection (UTI) from reusing the catheter. (Doc. 79-1 at 10.)
Plaintiff saw RN Ortiz that day, who examined Plaintiff, and
referred Plaintiff to NP Gay “to reassess and evaluate
the lab results for the Urine culture which have not arrived
yet. Give him a new sterile catheter to use until he sees her
and changes are made.” (Id. at 14.) A
follow-up appointment with Gay was scheduled for May 31,
2017. (Id.)
On May
30, 2017, Plaintiff was found on the floor covered in vomit
and urine; when he arrived at the Browning Health Unit, his
fever was 102.3 and he was rushed by ambulance to the
emergency room. (Doc. 79-2 at 44 ¶ 13; see also
Doc. 76 at 59.) Once at the ER, Plaintiff was diagnosed with
a UTI, prescribed an IV and antibiotics, and instructed to
follow up with the prison healthcare provider the next day.
(Doc. 79-2 at 44 ¶ 13.)
On May
31, 2017, Defendant Gay evaluated Plaintiff for a
post-hospital follow-up at which he complained of chills,
burning with a full catheter in place, and dark colored
urine. (Doc. 76 at 61.) After examining Plaintiff, Gay
assessed Plaintiff with secondary UTI and ordered that
Plaintiff was to continue Bactrim DS; Gay also prescribed
Phenergan 25 mg and an injection of Promethazine HCL for
nausea and vomiting and advised Plaintiff to increase his
fluid intake. (Id. at 4-5 ¶ 10 and at 62-63.)
Gay's plan was for Plaintiff to return later that day to
evaluate fluid intake status, to leave the catheter in place
for 3 days and to follow-up on the nurse line for catheter
removal. (Id. at 5 ¶ 10.) Plaintiff states that
Gay “refused to provide the I/V” at this
visit.[6] (Doc. 79-2 at 44 ¶ 15.)
On May
30, 2017, LPN Hawley responded to Plaintiff's Informal
Complaint, noting that on May 19, 2017 Plaintiff was
evaluated by the medical provider who determined that
Plaintiff should continue Tramadol twice a day and added
Zonisamide. (Doc. 76 at 54.) In a corrected response dated
May 31, 2017, Hawley also addressed Plaintiff's concerns
regarding his urinary retention, noting that a “routine
dip was negative for nitrites, blood leuks, and bacteria. A
urine sample was sent for culture and PSA level was ordered.
You are scheduled for a follow up exam. . . . The Medical
Provider has determined no medical necessity for you to be
seen by an outside specialist at this time.”
(Id. at 68.)
On June
1, 2017, Plaintiff submitted an HNR stating that he is
“still shivering (at times convulsively) feel feverish,
very dehydrated (to drink over a sip of water causes
vomiting[)], pain in back from shivers and bad h/a [headache,
possibly]. Actually, feel am worsening.” (Doc. 79-1 at
25.) After he filed this HNR, Plaintiff was discovered
unconscious on the floor and was taken to the Health Unit and
given an IV. (Doc. 79-2 at 44 ¶ 16.) The medical record
from that date states “ICS for Patient found Down and
unconscious in His Cell.” (Doc. 79-1 at 27.) The plan
of care was to “run IV Dextrose 5% with IM Promethazine
25 MG for nausea/vomiting and IV Push Toradol 30 MG”
and to follow up with Gay in the morning. (Id. at
29.) Plaintiff saw Dr. Williams on June 2 and was given an
IV; the Zonisamide was discontinued due to suicidal ideation.
(Doc. 79-2 at 45 ¶ 17.)
On June
11, 2017, Plaintiff filed an Inmate Grievance stating that he
suffered physical and mental trauma from taking Zonisamide
and by the refusal to treat his hand and pelvic numbness
caused by his spinal disease. (Doc. 76 at 72.) Plaintiff
wrote that Zonisamide was contraindicated by his history of
liver disease and mental illness and after Defendant Gay
prescribed Zonisamide, he felt depressed and in pain.
(Id.) Plaintiff said Gay never examined him, did not
refer him “to ortho for evaluation, ” and his
complaints of numbness were ignored. (Id. at 73.)
Defendant Johnson responded to Plaintiff's Grievance on
June 30, 2017, stating that when Plaintiff saw Dr. Williams
on June 2, 2017
an assessment was completed, medications reviewed and
adjusted (Zonisamide) discontinued, diagnostics (labs)
reviewed and reordered, education provided (rest, hydrate
avoid sudden movements) and follow up scheduled. There is no
request for off-site specialist. . . .
In conclusion, you are encouraged to take all your
medications as ordered by your medical provider however; I
have sent a copy of your grievance to the medical director
for review. Upon completion of the chart review, the medical
director may schedule a follow up appointment with a
different provider if clinically indicated.
(Id. at 71.)
Plaintiff
sent several HNRs in July 2017 for “more pain,
numbness, and immobility.” (Doc. 79-2 at 45 ¶ 18.)
In a July 4, 2017 HNR, Plaintiff said he had
“significant numbness in both hands and pelvic area
plus increased trouble moving legs.” (Doc. 79-1 at 38.)
Plaintiff said his last orthopedic visit was in 1999 for his
spinal disease and he asked to be provided with a specialist
appointment. (Id.) Plaintiff was seen on the nurse
line on July 5, 2017 and he requested orthopedic and urology
visits for further treatment of his bladder and spinal
disorders. (Id. at 40.) The nurse found Plaintiff
alert and oriented and not in any overt physical distress.
(Id. at 41.) The nurse noted Plaintiff was to have a
follow-up appointment with Dr. Babich on July 13, 2017.
(Id. at 42.)
In a
July 16, 2017 HNR, Plaintiff complained that he had not seen
the healthcare provider yet. (Id. at 44.) A note on
the HNR indicates that a CNA was to reschedule the ...