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Atwood v. Gay

United States District Court, D. Arizona

February 21, 2019

Frank Jarvis Atwood, Plaintiff,
v.
M. Gay, et al., Defendants.

          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 ...


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