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Mason v. Ryan

United States District Court, D. Arizona

March 27, 2019

Nathan Sterling Mason, Plaintiff,
Charles L. Ryan, et al., Defendants.



         Plaintiff Nathan Sterling Mason, who is confined in the Arizona State Prison Complex-Lewis, Buckley Unit, brought this pro se civil rights action under 42 U.S.C. § 1983 against Arizona Department of Corrections (ADC) Director Charles L. Ryan; Correctional Officer Joshua Baese; Corizon, LLC; and Nurse Practitioner (NP) Andreas Thude. (Doc. 46.) Plaintiff alleged Eighth Amendment failure-to-protect claims (Counts One and Two) and medical care claims (Count Three). (Id.) Before the Court are multiple motions related to Mason's medical care claims against Corizon and Thude:

• Mason's Motion for Partial Summary Judgment as to Corizon (Doc. 239);
• Corizon and Thude's Cross-Motion for Summary Judgment (Doc. 257);
• Mason's Motion for Preliminary Injunction (Doc. 303);
• Mason's Motion to Compel (Doc. 310);
• Mason's Motion for Expedited Ruling (Doc. 326); and
• Mason's Motion for Court Order (Doc. 329).[1]

         The Court will deny Plaintiff's Motion for Partial Summary Judgment, deny Corizon and Thude's Cross-Motion, and deny Mason's Motion to Compel. The remaining medical-care related motions will be addressed in a separate order.

         I. Background

         In Count Three of his First Amended Complaint, Mason alleged that in December 2015, he suffered a neck injury that caused his C5-C6 discs to bulge through his spinal canal. (Doc. 46 at 9.) Mason claimed that his injury causes extreme, chronic pain; numbness in his hand, neck and shoulder; pain in his neck, shoulder, and arm; and he has developed ulcers from the ibuprofen medication prescribed for pain. (Id.) According to Mason, Corizon and Thude have refused to provide specialist-prescribed treatment for his injury and severe pain. (Id. at 9-13.) Mason sued for injunctive relief and damages. (Id. at 14-15.)

         Mason moves for partial summary judgment against Corizon, arguing that Corizon's policies and practices resulted in unconstitutional medical care, including the denial of specialist-recommended treatment for Mason's serious medical needs. (Doc. 239.)

         Corizon and Thude cross-move for summary judgment on the grounds that there is no evidence of deliberate indifference to Mason's serious medical needs and there is no evidence that Mason suffered harm. (Doc. 257.)[2]

         II. 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 then 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, 477 U.S. at 250; 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 does not make credibility determinations; it must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 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). Further, where the nonmovant is pro se, the court must consider as evidence in opposition to summary judgment all of the pro se litigant's contentions that are based on personal knowledge and that are set forth in verified pleadings and motions. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).

         Finally, where the plaintiff seeks injunctive relief, the court may also consider developments that postdate the motions to determine whether an injunction is warranted. Farmer v. Brennan, 511 U.S. 825, 846 (1994).

         III. Motion to Compel

         A district court is required to determine the merits of the nonmovant's pending discovery motions before ruling on summary judgment motions. Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1178-79 (9th Cir. 2006); see Garrett v. City & Cnty. of S.F., 818 F.2d 1515, 1519 (9th Cir. 1987). “[S]ummary judgment is disfavored where relevant evidence remains to be discovered, particularly in cases involving confined pro se plaintiffs.” Jones, 393 F.3d at 930 (citing Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). Thus, summary judgment is not appropriate when there are outstanding requests for additional discovery unless such discovery “would be ‘fruitless' with respect to the proof of a viable claim.” Id.

         On December 13, 2018, Mason filed a Motion to Compel seeking relevant medical records from Corizon. (Doc. 310.) Mason states that he entered an agreement with defense counsel to extend discovery deadlines in return for defense counsel timely providing offsite medical care records and Corizon Utilization Management records related to Mason's treatment. (Id.) Mason submits that these records have not been produced. (Id.) In Response, Corizon confirms that defense counsel agreed to provide Mason with his offsite specialist reports and Corizon Utilization Management records, and it maintains that it has done so. (Doc. 310 at 4.) According to Corizon, it provided Mason with his pertinent medical records when it filed its Cross-Motion for Summary Judgment with over 600 pages of medical records attached. (Id. at 2.) Corizon further argues that Mason's Motion to Compel is untimely and procedurally improper. (Id. at 2-5.)

         As set forth in the summary judgment analysis below, offsite specialist medical records and Corizon Utilization Management records are missing from the record. Nonetheless, the absence of these records does not prejudice Mason at this stage because even without these records, there exist disputed material facts precluding summary judgment for Defendants. The Motion to Compel will therefore be denied without prejudice to refiling post-summary judgment.

         IV. Objections

         Defendants object to all of Mason's “alleged facts” in his Statement of Facts “that do not cite to any supporting materials in the undisputed record.” (Doc. 258 at 2.) But Defendants do not identify any specific paragraphs in Mason's Statement of Facts to which they object. (See id.) The Court will consider only specific objections to identified paragraphs within the Statement of Facts. See Reinlasoder v. City of Colstrip, CV-12-107-BLG, 2013 WL 6048913, at *7 (D. Mont. Nov. 14, 2013) (unpublished) (“objections [ ] must be stated with enough particularity to permit the Court to rule”); see also Halebian v. Berv, 869 F.Supp.2d 420, 443 n.24 (S.D. N.Y. 2012) (a court is not obligated to consider an objection entirely lacking in particularity).

         Defendants also appear to object to Mason's declarations; they argue the declarations are insufficient because they are comprised of self-serving and conclusory statements. (Doc. 258 at 2-3; Doc. 309 at 2 & n.1.) “That an affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact.” United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). As mentioned, at summary judgment, the Court does not make credibility determinations. See Soremekun, 509 F.3d at 984. Mason's declarations are signed under penalty of perjury, and he has personal knowledge to testify to facts set forth in his sworn statements because they concern his interaction with medical personnel and the treatment he received or did not receive. (See Docs. 73, 306-307.)[3] Also, Mason has personal knowledge to testify as to his own symptoms and pain. See S. Cal. Housing Rights Ctr. v. Los Feliz Towers Homeowners Ass'n, 426 F.Supp.2d 1061, 1070 (C.D. Cal. 2005) (declarant has personal knowledge of her own symptoms). The declarations are therefore admissible evidence to the extent the statements therein are based on personal knowledge. See Fed. R. Civ. P. 56(c)(4). For these reasons, Defendants' objections are overruled.

         Mason objects to Defendants' Separate Statement of Facts on the ground that the asserted facts are supported by medical records obtained in violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). (Doc. 301.) Although Mason has put his medical information at issue in this lawsuit, he does not automatically waive his privacy interest in his protected health information or any required waiver to release of that information. See, e.g., 45 C.F.R. § 164.512(e); Evans v. Tilton, No. 1:07-CV-01814, 2010 WL 3745648, at *3 (E.D. Cal. Sept. 16, 2010) (finding “blatant non-compliance” with HIPAA where prison disclosed the plaintiff's medical records without a waiver even though they were directly at issue in the lawsuit). However, Mason's HIPAA-based objection does not challenge the veracity of Defendants' asserted facts, only the manner in which the information was disclosed. In any event, the Court notes that Mason has himself submitted medical records and otherwise relied on Defendants' submission of medical records in support of his claims and requests for injunctive relief. (See Doc. 239.) Some of Mason's requests for injunctive relief have been granted in light of the evidence in those medical records. (See Doc. 193.) Mason's asserted HIPAA violation is not a basis for granting his objection, even if he may have other remedies for the alleged violation.

         Mason also objects to the proffered declaration of Dr. Ladele on the basis that it contains perjury and is not based on personal knowledge. (Doc. 301 at 1-3.) Within his Controverting Statement of Facts, Mason sets forth objections to a majority of Defendants' asserted facts, many of which rely on Ladele's declaration. (See Id. ¶¶ 5-7, 13-18, 20, 22, 24-29, 31-32, 34-36, 38-47, 49-50, 52-53, 56-62, 72, 78, 80, 83, 85, 90-94, 101-107, 111-113, 115-122, 129-143.) Dr. Ayodeji Ladele is an osteopathic physician employed as Corizon's Regional Medical Director; he is not a specialist and he did not treat Mason, nor is he personally familiar or acquainted with Mason. (Doc. 259, Ex. B, Ladele ¶¶ 2-4 (Doc. 259-1 at 18).) Most of Dr. Ladele's declaration describes Mason's course of treatment, and it is based on a review of Mason's medical records. (Id. ¶¶ 4, 6.) Mason's objections to Ladele's declaration and to Defendants' asserted facts stem from his disagreement with Ladele's reading and analyses of portions of the medical records. Because the Court is able to rely on and cite directly to the relevant medical records, it need not consider the parties conflicting interpretations of the records. Thus, the Court does not consider Ladele's declaration statements that simply recite what is set forth in the medical records. Except for the objections addressed individually below, Mason's objections are unnecessary and overruled.

         V. Relevant Facts

         Mason was admitted to ADC custody on April 9, 2015. (Doc. 258, Defs.' Statement of Facts ¶ 1; Doc. 300, Pl.'s Controverting Statement of Facts ¶ 1.) Mason states that in December 2015, he was assaulted, and he began experiencing neck pain. (Doc. 46 at 9.)[4]On January 7, 2016, Mason submitted a Health Needs Request (HNR) stating that he needed to see the provider “ASAP” about his neck. (Doc. 239 at 71.) The HNR response, dated January 8, 2016, stated “refused nursing appt.” (Id.)

         On April 11, 2016, Mason submitted another HNR seeking medical care for his neck; he stated that he injured his neck in 2009 and has taken ibuprofen every day to dull the pain enough to sleep and live, but it is no longer effective, and his stomach cannot take it anymore. (Doc. 259-2 at 16.) Mason requested an MRI. (Id.) The next day, April 12, 2016, Mason was seen by a nurse who documented that Mason reported no numbness or tingling, but Mason did report that he suffers constant, daily pain on the left side of his neck, as well as left shoulder pain, and that he cannot sleep on his back due to the pain. (Id. at 2, 5.) The nurse referred Mason to a provider. (Id. at 7, 9.)

         On April 21, 2016, Mason saw NP Lance Burnell; Burnell documented Mason's history of neck problems and that in the past several weeks to months, Mason had increased symptoms and pain in his neck and left shoulder and experienced numbness almost all the time in his fingers on both hands. (Id. at 18.) Burnell prescribed ibuprofen and omeprazole, ordered a cervical spine x-ray, and ordered a follow-up for three weeks later. (Id. at 21, 23.)[5] On April 27, 2016, Mason had a cervical spine x-ray performed; the results were normal. (Id. at 24.)

         Mason was required to submit HNRs to obtain any refills of medication, and he started submitting HNRs requesting ibuprofen refills in April 2016, and continued to do so until approximately April 2018. (See, e.g., Doc. 259-4 at 45, 120, 122; Doc. 259-5 at 80.)[6]Mason disputes that ibuprofen was effective and states that he requested refills because it was the only medication provided to him. (Doc. 301 ¶ 8.)

         Meanwhile, on June 3, 2016, Mason submitted an HNR to the Facility Health Administrator (FHA) stating that he was in extreme pain every day and had not received any follow-up after his cervical spine x-rays were performed, and he asked that the FHA please help him. (Doc. 259-4 at 129). The FHA's response stated that Mason failed to submit an HNR requesting a follow-up for pain and directed Mason to submit HNRs for physical complaints and issues. (Id.)

         On June 29, 2016, Mason saw NP Carrie Smalley. (Doc. 259-2 at 28.) Mason reported neck and left shoulder pain that started in approximately 2008 and worsened after an altercation in December. (Id.) He described the pain as a constant, gnawing, aching pain and he reported difficulty sleeping due to the pain, spasms, and paresthesia in his hands. (Id.) NP Smalley examined Mason and assessed cervicalgia, muscle spasm, and paresthesia;[7] prescribed capsaicin topical cream and Flexeril for pain; and ordered labs and a follow-up for one month later. (Id. at 29, 31.) Mason was informed that his cervical spine x-ray results were normal, and he was advised to take his medications and to stretch. (Id. at 31.)

         On August 18, 2016, Mason saw NP Smalley for a follow-up for his neck pain. (Id. at 42.) Smalley noted Mason's continued constant, gnawing, aching pain with difficulty sleeping due to pain and intermittent paresthesia to hands, and that Mason had moderate relief with short term muscle relaxants and NSAIDs (nonsteroidal anti-inflammatory drugs). (Id.) Mason disputes that he reported moderate relief with ibuprofen; he states that ibuprofen barely worked and was hurting his stomach. (Doc. 301 ¶ 23.) An examination noted tenderness to the neck muscles, pain with flexion and rotation, but no boney tenderness and normal strength. (Doc. 259-2 at 43.) The treatment plan was to submit a consult request for physical therapy, continue with NSAIDs and capsaicin cream, and discontinue omeprazole. (Id. at 45.) That same day, a Consultation Request form for off-site clinic physical therapy was submitted. (Id. at 47.) The Consultation Request form noted that conservative measures-medications, rest, and stretching-had provided no relief. (Id.) The Consultation Request form shows that on August 28, 2016, the request was authorized. (Id. at 49.)

         On October 13, 2016, Mason attended an off-site physical therapy appointment. (Doc. 259-2 at 51.) The therapist noted that Mason presented with neck pain in the high cervical spine and intermittent finger paresthesia, and that Mason reported the symptoms started in 2015 after an altercation. (Id.) Mason exhibited a full range of motion and full strength, but he had muscle spasms and bilateral hand numbness in some fingers. (Id.) The therapist documented a plan for three more visits to focus on muscle spasms in the neck and increasing movement of the high cervical spine. (Id.)

         A couple of days later, Mason submitted an HNR requesting to see the provider for his neck and stating that the physical therapy was not working. (Doc. 259-4 at 147.) On October 18, 2016, Mason saw a nurse and reported that the medication was not helping his neck pain and that therapy was making it worse and he requested to see a provider. (Doc. 259-2 at 60, 62, 68.) The nurse documented that Mason's neck appeared stiff, but no distress was noted. (Id. at 64.) Mason disputes that he was not in distress; he states that he could not move his neck and he was in extreme pain. (Doc. 301 ¶ 32.)

         On October 19, 21, and 25, 2016, Mason attended three more offsite physical therapy appointments. (Doc. 259-2 at 71-73.) At the last appointment, Mason reported that he still had pain in his neck and shoulders and that nothing has changed his pain, and the therapist noted that he still had poor range of motion in his mid-to-high cervical spine and numbness in his hands. (Id. at 73.)

         On October 27, 2016, Mason saw NP Smalley for a follow-up for neck pain. (Id. at 75.) The medical note documents that Mason complained that he had suffered neck pain since 2006 and worsening pain since December after an assault. (Id.) Smalley noted that Mason had received anti-inflammatories, muscle relaxants, topical creams, and physical therapy “with slight improvement in [range of motion] but worsening of pain.” (Id.) Mason reported a constant, gnawing ache with shooting pain to his head and shoulder area, intermittent numbness in his hands, and the inability to sleep due to pain. (Id.) Smalley prescribed ibuprofen, capsaicin cream, and methocarbamol (muscle relaxant, brand name Robaxin), and she noted that she would submit a request for an MRI. (Id. at 77-78.)

         On November 16, 2016, NP Smalley submitted an off-site consult request for an MRI. (Id. at 89.) The Consultation Request form shows that this request was referred to the Corizon Utilization Management Team the next day, and the request was authorized on November 23, 2016. (Id. at 90.)

         On November 26, 2016, Mason submitted an HNR stating that his neck pain is “getting worse and worse” and inquiring whether the MRI was approved yet. (Doc. 259-5 at 4.) The HNR response informed Mason that the MRI has been approved and should be scheduled soon. (Id.)

         On December 16, 2016, Mason had an MRI. (Doc. 259-2 at 101.) The MRI report indicated “multilevel degenerative changes most prominent at ¶ 5-6 . . . with severe narrowing of spinal canal and likely early myelomalacia. Spine surgery consultation should be considered.” (Id. at 102.)[8] The report also noted “mild prominence of Waldeyer's ring[, ]” and recommended “[f]ollow-up with CT neck with IV contrast in 1 month or earlier can be performed for further assessment.” (Id.)[9]

         On December 28, 2016, Mason submitted an HNR requesting to see the provider to get his MRI results and to get different medication because his current medication was not working. (Doc. 259-5 at 9.) He reported that his heart felt like it was going to explode, he felt like vomiting, and his vision was blurry sometimes. (Id.) On January 3, 2017, Mason was seen by NP Smalley, and Mason reported worsening neck pain that was constant and shooting pain up to his head, increased numbness in hands, and an inability to sleep due to the pain. (Id. at 134.) Smalley requested an urgent consult to an orthopedic spine specialist, added the medication nortriptyline for pain, and ordered continued ibuprofen and Robaxin. (Id. at 137, 142.)[10] The Consultation Request form shows that the consult request was referred to the Corizon Utilization Management Team for review on January 4, 2017, and, on January 6, 2017, the request was authorized. (Id. at 144.)

         On January 9, 2017, Mason submitted an HNR stating that his neck symptoms were getting worse. (Doc. 259-5 at 13.)

         On January 24, 2017, Mason saw orthopedic specialist Dr. Waldrip, who diagnosed Mason with spinal stenosis at C-6 to C-7. (Doc. 259-2 at 153.)[11] Dr. Waldrip's plan was to schedule cervical epidural injections with a pain management specialist. (Id.)[12] Mason avers that Dr. Waldrip told him that he had to fail a full course of pain management therapy before Dr. Waldrip could perform surgery. (Doc. 73, Pl. Decl. ¶ 5.)

         The next day, January 25, 2017, Mason submitted an HNR requesting a follow-up with a provider. (Doc. 259-5 at 16.). Mason wrote that he saw the orthopedic surgeon, that his current medication has not worked from the beginning, that Dr. Waldrip told him he would be in extreme pain until he has surgery, but that he must try treatment with a pain management specialist before surgery. (Id.) Mason saw a nurse that same day; the nurse noted that Mason wanted stronger pain medication until he underwent surgery for chronic neck pain and that the provider would review the chart. (Doc. 259-2 at 174, 176, 179.) At this time, Mason was taking ibuprofen, nortriptyline, capsaicin cream, and methocarbamol. (Id. at 178.)

         On January 27, 2017, Defendant Thude submitted a consultation request for the off-site pain clinic as recommended by Dr. Waldrip. (Id. at 184, 189.) The Consultation Request form shows that the request was referred to the Corizon Utilization Management Team for review. (Id. at 190.) The form shows that on February 6, 2017, alternative treatment was recommended instead of the requested off-site pain clinic. (Id.) The form documents that on February 9, 2017, there was a discussion with the Corizon “RMD”- Regional Medical Director, who Thude states at the time was Dr. Glen Babich. (Id.; Doc. 259, Ex. A, Thude Decl. ¶ 8 (Doc. 259-1 at 4).)[13] Thude avers that he discussed the reasoning behind the consult request with Dr. Babich, and the request was then approved. (Doc. 259, Ex. A, Thude Decl. ¶ 8.) The Consultation Request form documents that on February 13, 2017, the consult request authorization was obtained, and the consult was scheduled. (Doc. 259-2 at 190.)

         Meanwhile, Mason continued to report to medical staff that the pain medication was not working. (Doc. 259-3 at 1, 13.) On February 1, 2017, Mason saw Thude. (Id. at 16.) Mason reported that he had suffered from neck and shoulder pain since December 2015; that all treatments had failed; and that he was unable to sleep due to the pain, which radiated to his left upper back. (Id.) Thude noted that Mason had stable vital signs and no apparent distress and that C-2 to C-12 were grossly intact. (Id. at 17.) Thude documented that Mason was irritable and spoke with increased volume, scowled and narrowed his eyes at Thude, and said in an elevated voice that he could not “live like this!” (Id.) Thude wrote that he reviewed the medication list and verified the consult request for pain management, informed Mason that he would not provide any different pain medication, and then asked an officer to remove Mason from the exam room. (Id.) Mason does not dispute that he said in an elevated voice that he could not live like this, but it was only after Thude smiled at him and said, “I'm not giving you any other pain medication.” (Doc. 301 ¶ 62.) Mason disputes that he was not in distress at this time; he states that he was in chronic pain and showed signs of pain. (Id.)

         On February 2, 2017, Thude submitted an offsite consult request for a CT scan of Mason's neck. (Doc. 259-3 at 23, 28.) Thude wrote on the Consultation Request form that on December 16, 2016, orthopedics had recommended a CT neck scan within one month. (Id. at 28.) The Consultation Request form shows that later that same day, the consult request was “Cancelled REASON: See Comments BY STAFF: Thude, Andreas.” (Id.) The referenced comments by Thude are not in the record. In his declaration, Thude avers that he had a discussion with Corizon's Site Medical Director Julia Barnett, who recommended an offsite neurology consultation for an electromyogram (EMG) to measure electrical activity and nerve conductions in the neck; therefore, Thude canceled the consult request and issued a new consult request for an offsite EMG. (Doc. 259, Ex. B, Thude Decl. ¶ 15.) There are no medical records documenting this discussion with Dr. Barnett or her recommendations for treatment, nor are there any medical records referring to Dr. Barnett or authored by Dr. Barnett.

         Another Consultation Request form was prepared on February 2, 2017, and requested an EMG based on the patient's complaints of neck pain, the MRI results, and a moderate narrowing of the spinal canal. (Doc. 259-3 at 36.) The Consultation Request form shows that the request was referred to the Corizon Utilization Management Team for review, and on February 10, 2017, alternative treatment was recommended instead of the EMG. (Id.) The form documented that, as to the alternative treatment recommendation, “REASON: See Comments By STAFF: Johnson, Erica.” (Id.) The referenced comments by Johnson are not in the record. In his declaration, Thude avers that Dr. Babich reviewed the EMG request and noted that the MRI revealed a cord compression at two levels, so a neurosurgery referral was recommended instead. (Doc. 259, Ex. B, Thude Decl. ¶ 17.) There is no indication on the face of the Consultation Request form that the RMD or Babich was involved in the review or discussed the EMG consult request, nor are there any records of a medical note or findings by Babich or anyone else regarding the reason for a neurosurgery referral. (See Doc. 259-3 at 37.)

         On February 13, 2017, Thude submitted another Consultation Request form in which he wrote “neuro surgery consult requested per ATP [alternative treatment plan] recommendations[;] MRI shows cord compression at two levels.” (Doc. 259-3 at 49, 54.) The Consultation Request form documents that, later that same day, the consult request was “Cancelled REASON: See Comments BY STAFF: Thude, Andreas.” (Id. at 55.) A Consultation Request Action form, dated February 13, 2017, shows Thude's comments- “per Labar neuro surgery already reviewed and Marsella (neuro surg) said there was nothing that could be done.” (Doc. 259-4 at 46.) “Labar” appears to refer to Dianna Labar, who is identified on other forms as an LPN (licensed practical nurse) and as the AFHA (Associate Facility Health Administer) at the Lewis Complex. (See Doc. 259-2 at 49, 144; Doc. 259-3 at 134; Doc. 259-4 at 99.) There are no other medical records or documents that identify or reference a Dr. Marsella or this physician's reviews or findings.

         Meanwhile, Mason continued to report ongoing neck pain. (Doc. 259-3 at 41.)

         On February 21, 2017, Mason saw Thude again. (Id. at 59.) Thude informed Mason that an EMG was not indicated but that he had received a confirmation via email that an epidural steroid injection would be okay. (Id.) The email confirming approval for an epidural steroid injection is not in the record. On February 28, 2017, Mason's prescription for methocarbamol was switched to baclofen, another type of muscle relaxant. (Id. at 71.)

         On February 28, 2017, Mason filed an Inmate Grievance, complaining that he suffered chronic and debilitating pain; he had taken over a thousand ibuprofen yet made numerous complaints of its ineffectiveness; and he had complained of sleep deprivation and been prescribed psychotropic medications and muscle relaxants. (Doc. 259-4 at 94.) Mason wrote that he begged the provider for help to manage his pain, but the provider kicked Mason out of his office. (Id.) Mason requested pain medication that provides adequate pain relief. (Id.)

         On March 7, 2017, Mason refused to take nortriptyline; he stated that nortriptyline caused him to suffer psychotic thoughts and negatively affected his mental health. (Doc. 259-3 at 78; Doc. 302, Mason Decl. ¶ 4; Doc. 306, Mason Supp. Decl. ¶ 5.) The next day, he submitted another Inmate Grievance, stating that he had damage to his spine, that he had lived in chronic pain for 15 months, and that he had not received adequate pain relief and his treatment was being delayed. (Doc. 259-4 at 98.) He requested adequate pain relief. (Id.) On March 17, 2017, Mason received the Grievance Response from the FHA, which informed Mason that the treatment plan was to continue with an epidural steroid injection and that Mason was receiving baclofen for pain. (Id. at 95.)

         On March 28, 2017, Mason saw pain management specialist Dr. Page at Advanced Pain Management for a new patient consultation and evaluation for cervical radiculopathy. (Doc. 259-3 at 88.)[14] Dr. Page's medical record of this encounter documented that Mason's symptoms included neck pain described as a throbbing, dull, aching and shooting pain; numbness; and tingling. (Id.) The medical record noted that Mason's pain is relieved by nothing and worsened by stress, activity and bending; that pain is severe without pain medication, and with pain medication, pain is moderate; that Mason is able to function with pain medications; that pain impacts his quality of life and daily activities; and that Mason has tried ice, heat, and NSAIDs. (Id. at 88-89.) Dr. Page took Mason's medical and social history, conducted a thorough examination, which included findings that the cervical spine showed tenderness and did not show full range of motion. (Id. at 88-90.) Dr. Page diagnosed cervical disc bulge, and then performed a cervical epidural steroid injection (nerve block). (Id. at 90-91.) Dr. Page's treatment plan included the epidural steroid injection; directions that Mason should follow up in four weeks for a second injection; and he started Mason on the medication Ultram, with directions to take it every 12 hours. (Id. at 91-92.)[15]

         On March 28, 2018, after his appointment with Dr. Page, Mason submitted an HNR stating that his medication for pain did not work and made him sick and that Corizon was refusing to provide the pain medication that Dr. Page prescribed. (Doc. 259-3 at 107.)

         On March 30, 2018, Mason saw a nurse and reported that his pain medication did not work and made him sick. (Doc. 259-3 at 97.) The medical note for this encounter documents that at this time Mason was prescribed baclofen, ibuprofen, nortriptyline, omeprazole, and capsaicin cream; he was not provided Ultram. (Id. at 101.) The nurse documented that Mason had seen a pain management specialist a couple of days prior for injections “which don't work, ” and that the medications baclofen and nortriptyline did not work and made him nauseated. (Id. at 99.) Mason avers that he never stated the injections did not work, as Dr. Page had said that the efficacy of the injections would not be known until after a course of three injections was completed. (Doc. 73, Mason Decl. ¶ 7.)

         On April 4, 2017, Mason saw Thude; Mason reported that baclofen and nortriptyline were ineffective and causing diarrhea. (Doc. 259-3 at 121.) Thude discontinued the baclofen and nortriptyline, prescribed duloxetine instead, [16] and renewed the capsaicin cream. (Id. at 123-124.) Thude also submitted a consult request for the second epidural injection pursuant to the orthopedic surgeon's pain clinic recommendation. (Id. at 133.) The Consultation Request form shows that on April 7, 2017, the request was referred to the Corizon Utilization Management Team for review. (Id. at 134.) The form shows that on April 13, 2017, an entry was made stating “Need More Information REASON: See Comments BY STAFF: Labar, Dianna, LPN.” (Id.) The referenced comments by Labar are not in the record. On April 20, ...

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