United States District Court, D. Arizona
ORDER
DAVID
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff
Masum Vijan, who was formerly confined in the Arizona State
Prison Complex-Lewis, brought this civil rights action
pursuant to 42 U.S.C. § 1983. Defendants Carrie Smalley,
Thomas Dannemiller, and Itoro Elijah move for summary
judgment. (Doc. 32.) Plaintiff was informed of his rights and
obligations to respond pursuant to Rand v. Rowland,
154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 34), and he
opposes the Motion. (Doc. 35.) The Court will grant the
Motion for Summary Judgment in part and deny it in part.
I.
Background
On
screening of Plaintiff's First Amended Complaint under 28
U.S.C. § 1915A(a), the Court determined that Plaintiff
stated an Eighth Amendment deliberate indifference claim in
Count One against Defendants Smalley, Dannemiller, and
Henley, and in Counts Two and Three against Defendant Elijah,
and directed them to answer the claims. (Doc. 9.) Plaintiff
failed to serve Henley, and the Court dismissed Henley on May
9, 2018. (Doc. 21.)
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
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).
“If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact …, the court may: (1) give an
opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3)
grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it; or (4) issue any other
appropriate order.” Fed.R.Civ.P. 56(e). The Court may
not grant summary judgment by default, even if there is a
complete failure to respond to the motion. See Heinemann
v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).
III.
Facts[1]
A.
Plaintiff's Pre-Hospitalization Treatment
On
August 9, 2015, Plaintiff submitted an Emergency Health Needs
Request (HNR) addressed to Defendant Dannemiller, stating
that he had been requesting for several weeks to see the
medical department about a severe lung infection that would
not go away. (Doc. 33-1 at 37.)[2] Plaintiff stated in the HNR that
he had been told that he might be able to receive antibiotics
through Dannemiller, but Plaintiff could not “get past
the [CO II] in order to see [Dannemiller].”
(Id.) Plaintiff asked Dannemiller to help him see a
provider or obtain antibiotics “ASAP.”
(Id.) The same day, Plaintiff submitted an HNR
stating that he believed he had contracted Legionnaire's
or valley fever “from these dirty vents.”
(Id. at 35.) On August 10, 2015, both HNRs were
returned to Plaintiff with a note signed by Dannemiller
stating: “You are schedule[d] for an
appointment.”[3] (Id. at 35, 37.)
Plaintiff
saw Smalley on August 11, 2015.[4] (Doc. 8 at 5.) Smalley
“ordered chest x-rays, but nothing more.”
(Id.) The Health Services Encounter for the August
11, 2015 visit indicates that Plaintiff was scheduled to be
seen by a nurse at sick call. (Doc. 33-2 at 209.)
Plaintiff's medical records indicate that he saw Smalley
for his regular chronic care visit for hepatitis B (HBV) and
hepatitis C. (Id. at 202.) Plaintiff told Smalley
that he continued to have muscle pain (myalgia) with HBV
treatment, and he complained of headache, chills, and a
cough. (Id.) Plaintiff was concerned that he had
blood in his urine “on occasion, ” but none
currently. (Id.) Plaintiff also complained of low
back and neck pain radiating to his arms and legs, which he
attributed to a 2012 prison assault. (Id.) Plaintiff
reported worsening pain with any prolonged activity and
described the pain as burning “to arms and legs with
aching pain to back.” (Id.) Plaintiff stated
that he had taken naproxen with no relief. (Id.)
Plaintiff's temperature was normal at 98.2; he had no
wheezing, rales, or rhonchi[5]; and his vital signs were stable.
(Id. at 202-204.)
Smalley
ordered x-rays of Plaintiff's cervical, thoracic, and
lumbar spine and requested follow-up in one month for chronic
care for his HBV and back pain. (Id. at 207; Doc.
33-3 at 24.) The x-rays Smalley ordered were cancelled,
however, because Plaintiff was “to[o] sick to finish
[the] exam[s].” (Doc. 33-2 at 207; Doc. 33-3 at 24-29.)
Smalley also ordered a valley fever screening. (Doc. 33-2 at
207.) According to Plaintiff's records, the valley fever
screening was cancelled; Smalley testified in her deposition
that the valley fever test was not done because Plaintiff
went to the hospital on August 28, 2015.[6](Doc. 33-2 at 207;
Doc. 33-3 at 6.)
On
August 13, 2015, prisoner Mark Meechum assisted Plaintiff to
the medical department for pill call, where Dannemiller
“was summoned” and, after seeing Plaintiff's
condition, left and returned after a few minutes with
antibiotics. (Doc. 8 at 5.) Plaintiff testified in his
deposition that on one occasion “Mark Mekcham”
wheeled Plaintiff to the medical department to hand-deliver
an HNR to Dannemiller. (Doc. 33-1 at 11.) Plaintiff told
Dannemiller he had been experiencing a productive cough with
dark phlegm for a few weeks. (Doc. 33-2 at 210.) Plaintiff
denied shortness of breath or difficulty breathing.
(Id.) Dannemiller examined Plaintiff and found that
his left lung sounds were slightly “diminished,
”[7] but he was not in acute distress and had
no nasal congestion or drainage. (Id.)
Plaintiff's temperature was normal at 98 degrees.
(Id.) Dannemiller diagnosed Plaintiff with a
“community acquired” lung infection.
(Id. at 209, 211.) Dannemiller noted that he
contacted Defendant Smalley because Plaintiff's symptoms
were unimproved or worsening. (Id. at 213.)
Dannemiller obtained orders for Bactrim, an antibiotic, for
ten days. (Id. at 211.) Dannemiller instructed
Plaintiff to submit an HNR if his condition did not improve.
(Id. at 213.)
On
August 17, 2015, Plaintiff submitted an HNR to Dannemiller,
stating:
Sir, I am deathly ill. The anti[]biotics have done nothing
but make my heart hurt and my kidneys hurt so bad I cannot
walk. I need to be admitted into a hospital. Each day I wake
up in a pool of sweat and each afternoon I develop a
temperature and the fever is so bad I shake from the cold
that I sometimes [lose consciousness]. I am in so much pain
as well and was sent home from x-ray today as the tech said I
was too sick to do x-ray.
(Doc. 8 at 6.) On August 18, 2015, prisoner Harold W. Simon
and several other prisoners obtained a loaner wheelchair and
assisted Plaintiff to the medical department to deliver his
August 17 HNR to Dannemiller. (Id.) Nurse Wilder
“summoned” Dannemiller, “who stood just
inside and read the HNR” while Plaintiff and the other
prisoners waited, but Dannemiller “insisted”
there was nothing more he could do. (Id.) Simon and
the other prisoners “demanded” that Plaintiff go
to a hospital or at least be seen by Smalley. (Id.)
Dannemiller left “for a minute, ” returned, and
said, “Smalley said just to drink more
water.”[8] (Id.)
On
August 20, 2015, Simon and another prisoner, Michael
Connelly, approached CO II Henley for “at least the
third time” concerning Plaintiff and his need to be
sent to a hospital for emergency care. (Id.) Henley
only said, “I understand. And I've already noted it
in my log.” (Id.) Henley agreed to
“write an IR (Incident Report), ” but
“refuse[d] to do anything more to obtain obviously
needed emergency care” for Plaintiff. (Id.)
Plaintiff expected Dannemiller or Smalley “at the very
least” to reschedule him for emergency x-rays or search
for the results of the x-rays taken on August 17, 2015, but
they apparently failed to do so. (Id.)
On
August 24, 2015, Plaintiff submitted another “Emergency
HNR, ” stating:
Again I am deathly ill! I cannot describe the terrible pain I
am in[.] My kidneys are destroyed[.] My heart hurts[.] My
left lung is giving me so much pain I cannot lay or sleep on
my left side[.] Each day I develop a fever[.] People have
told me I have lost weight[.] I cannot leave my bed [except]
to urinate[.] I need my lay-in extended[.] I cannot go to the
chow hall and med in my condition[.] Please help me please.
(Id. at 7.) Simon and Connelly took the August 24
Emergency HNR and hand-delivered it to Nurse Wilder, who took
it “inside” and handed it to Smalley.
(Id.) Nurse Wilder returned and told Simon and
Connelly that Smalley said she was aware of Plaintiff's
problems and to “tell him to drink more water.”
(Id.)
By
August 24, 2015, because he was unable to “go to
chow” or receive his daily
“watch-swallowed” medications, Plaintiff had
already missed several days of the
“watch-swallowed” medications, Effexor and
entecavir. (Id.) Dannemiller made no welfare check
to see why Plaintiff was not showing up for pill calls.
(Id.) On August 27, 2015, Simon summoned Henley to
check on Plaintiff's “dire condition.”
(Id.) Plaintiff stated, “I wish I was dead,
” but Henley never called for emergency medical
assistance, although Plaintiff asked for and clearly needed
help. (Id. at 8.) On August 28, 2015, Plaintiff
prepared another HNR, stating,
Please tell me the results of my x-rays two weeks ago[.] I
went tremendously sick and in pain and the lady took 4 x-rays
and sent me home when she determined I was too sick to
continue. I cannot bear the pain I am in any longer and need
help and to be seen by the provider. Why have my emergency
HNRs been ignored[?] I need help!
(Id.) Connelly hand-delivered the August 28 HNR to
Dannemiller the same day. (Id.) Connelly told
Dannemiller that Plaintiff was in serious pain, but
Dannemiller “made no comment.” (Id.)
On
August 28, 2015, prisoners noticed Plaintiff had lost
consciousness and alerted Henley. (Id.) Henley
notified the medical department of an emergency and activated
an Incident Command System (ICS). (Id.) A Barchey
Unit Sergeant contacted Nurse Oyuki Uriarte and told Uriarte
that Plaintiff was feeling sick and complained of difficulty
breathing. (Doc. 33-2 at 196.) The Sergeant asked whether
Plaintiff “could be brought up to be seen, ” and
Uriarte said she could see Plaintiff. (Id.) Officers
brought Plaintiff to the medical department in a wheelchair.
(Id. at 195.) Plaintiff stated he could not breathe
and had been sick for a month. (Id.) Nurse Uriarte
observed that Plaintiff was heavily perspiring (diaphoretic),
hyperventilating, and in obvious acute distress.
(Id. at 196.) Plaintiff was “tripod
breathing”-that is, leaning forward with his hands on
his knees to “optimize breathing mechanics”; his
skin had an “obvious gray color”; and he had
audible rales. (Id.) Nurse Uriarte called 911 and
reassessed Plaintiff. (Id.) Plaintiff's skin was
cool, clammy, pale, and gray, and he was diaphoretic, had
difficulty speaking to Uriarte and security because of his
breathing, had rales throughout the lung field bilaterally,
was hyperventilating, and had a constant productive cough
with “copious amounts” of yellow/foamy sputum.
(Id.) Plaintiff was transported to the hospital by
ambulance and admitted, where it was determined that he was
septic.[9]
Smalley
testified at her deposition that an untreated respiratory
infection could cause sepsis, and an antibiotic would
“[n]ot necessarily” prevent sepsis. (Doc. 33-3 at
7.) Smalley further testified that sepsis can occur within 24
hours, or it can take weeks or months, but “it's
obviously a progressive disease process.” (Id.
at 8.) She testified that signs and symptoms of sepsis
include tachycardia, hypotension, fever or flushing, an
altered level of consciousness, cold sweats, pain, and weight
loss. (Id. at 9.)
Plaintiff
was hospitalized from August 28, 2015 to October 18, 2015 for
septic shock, left tension pneumothorax, and respiratory
failure. (See Doc. 33-2 at 178.) Plaintiff was
placed on life support at the hospital, and he “had
apparently died” at one point.[10](Doc. 8 at 8; Doc. 33-1 at
20.) Plaintiff also suffered multiple organ failures because
of the sepsis. (Doc. 33-1 at 20.) Plaintiff remained in
intensive care for several weeks and then spent several more
weeks at a Phoenix hospital before he was moved to a medical
unit at ASPC-Tucson. (Doc. 8 at 9.) Plaintiff lost 70-80
pounds and was experiencing “disturbing numbness and
shocking neuropathic pain, ” mostly on his left side,
and was still recovering when he returned to ASPC-Lewis.
(Id.)
B.
Plaintiff's Post-Hospitalization Treatment
Plaintiff
returned to the prison on October 18, 2015 and was admitted
to the infirmary. (Doc. 33-2 at 186.) Nurse Margo Boie noted
that Plaintiff had been admitted for acute respiratory
distress syndrome (ARDS), left pleural effusion with
emphysema, chest tube insertion and removal, and septic shock
secondary to pneumonia. (Id.) On October 19, 2015,
Nurse Practitioner Daniel Ross examined Plaintiff and noted
that he had suffered respiratory failure, left tension
pneumothorax, and septic shock secondary to pneumonia.
(Id. at 178.) Ross noted that “[t]his was a
sudden onset of long-standing underlying problems, made worse
by [Plaintiff's] in ability to breath[e] and definitely
improved by the installation of a
tracheostomy.”[11] (Id.) Plaintiff remained in the
infirmary until January 6, 2016. (Id. at 172.)
Plaintiff attended physical therapy sessions while he was in
the infirmary.[12] (Doc. 33-1 at 14.)
On
January 6, 2016, Plaintiff saw Smalley and was discharged
from the infirmary. (Doc. 33-2 at 172.) On January 13, 2016,
Plaintiff saw Nurse Susan Holcomb. (Id. at 167-71.)
At some point, Smalley placed Special Needs Orders (SNOs) for
Plaintiff for bed rest (a lay in) for one year, a wheelchair,
a walker, and a lower bunk/tier.[13] (Id. at 170.) On
February 12, 2016, Smalley ordered x-rays of Plaintiff's
cervical, thoracic, and lumbar spine. (Doc. 33-3 at 20.) The
x-rays revealed degenerative joint and disc disease in the
mid-to-lower cervical spine and lower lumbar spine, as well
as minor degenerative changes to the thoracic spine.
(Id. at 18, 21, 23.) On March 30, 2016, Plaintiff
saw Smalley and complained of a cough, chest pain, and
difficulty breathing. (Doc. 33-2 at 162.) Plaintiff's
lungs were clear bilaterally, and he had no nasal drainage,
cough, or red eyes. (Id.) Smalley ordered a chest
x-ray and gave Plaintiff an inhaler. (Id. at 166.)
The chest x-ray showed an “ill defined right lower lung
infiltrate.” (Doc. 33-3 at 17.) The radiologist
recommended follow-up in one week to ten days and to consider
a CT scan if there was no improvement. (Id.)
On
April 5, 2016, Smalley reviewed the results of the chest
x-ray, diagnosed Plaintiff with pneumonia, and prescribed
Levofloxacin (an antibiotic) and Guaifenesin (a cough
medication). (Doc. 33-2 at 157, 160.) On April 12, 2016,
Smalley saw Plaintiff for follow-up care for pneumonia.
(Id. at 152.) Plaintiff continued to have a
productive cough of yellow to brown sputum and pain in his
chest with coughing. (Id.) Smalley ordered another
chest x-ray and placed an SNO for a quad cane. (Id.
at 156; Doc. 33-3 at 14.) The x-ray continued to show a right
lower lung infiltrate that had not significantly changed from
the April 4, 2016 x-ray. (Doc. 33-3 at 14.) The radiologist
recommended “continued close radiographic follow
up” or to “consider CT.” (Id.) On
April 18, 2016, Smalley reviewed the results of the chest
x-ray, which she noted showed “persistent
consolidation”; prescribed two antibiotics, amoxicillin
and azithromycin; and ordered another chest x-ray. (Doc. 33-3
at 12; Doc. 33-2 at 147, 150.)
On
April 27, 2016, Smalley ordered a complete blood count (CBC)
with differential/platelet test and a Coccidioides (valley
fever) panel. (Doc. 33-2 at 141, 144.) She documented her
plan to order a chest CT scan if there was no improvement.
(Id. at 141.) The CBC results, with one exception,
[14]
were within normal limits, but the Coccidioides results were
abnormal and indicated Coccidioides infection. (Doc. 33-4 at
16-17, 21-22.) On May 9, 2016, Plaintiff had a follow-up
chest x-ray, which showed “right sided density, ”
suggesting “post inflammatory scarring.” (Doc.
33-3 at 12.) Smalley entered an urgent request for an offsite
radiology consultation. (Doc. 33-2 at 139.) The next day,
Smalley diagnosed Plaintiff with valley fever and prescribed
Fluconazole, an antifungal. (Id. at 125.)
On June
6, 2016, Plaintiff underwent a CT scan of his chest. (Doc.
33-4 at 71.) Dr. Joseph Wall observed a new mass (as compared
to a chest CT that had been taken on May 30, 2014) in the
right upper lobe, “which was concerning for primary
pulmonary malignancy.” (Id. at 72.) Dr. Wall
opined that the mass “could reflect postinfectious
sequela, ” such as Coccidioidomycosis, and that PET/CT
imaging might provide useful further assessment.
(Id.) On June 7, 2016, Dr. Julia Barnett entered an
urgent request for an offsite radiology consultation for a
chest PET/CT scan. (Doc. 33-2 at 123.) On June 29, 2016,
Plaintiff had a PET/CT scan. (Doc. 33-4 at 67.) Dr. Lavi
Nissim observed a right precarinal lymph node, a right upper
lobe pulmonary lesion, a “very tiny nodule”
within the left upper lobe, and mild infiltrate within the
posterior segment of the right lower lobe. (Id. at
68.) Dr. Nissim noted that the spiculated (spiky or pointy)
appearance of the lesion as well as the elevated metabolic
activity was concerning for either a metastatic nodule or
primary pulmonary malignancy. (Id. at 69.) Dr.
Nissim also noted that a metastatic lymph node was not
excluded, and the infiltrate within the right lower lobe
might be infectious in nature. (Id. at 70.) He
recommended a follow-up CT scan in one year for the left
upper lobe nodule. (Id.)
On July
1, 2016, Dr. Barnett entered an urgent request for an offsite
radiology consultation. (Doc. 33-2 at 118.) Elijah became
Plaintiff's primary care provider on July 13, 2016. (Doc.
8 at 10.) On July 13, 2016, Plaintiff saw Dr. Barnett for his
regular chronic care visit. (Doc. 33-2 at 107.) Plaintiff
complained of pain running down his left leg, which he was
concerned was indicative of testicular cancer recurrence or
that the nodule was metastasis. (Id.) Dr. Barnett
and Plaintiff discussed an upcoming lung biopsy, and Dr.
Barnett told Plaintiff there was no evidence of testicular
cancer recurrence or metastasis based on the recent PET/CT
scan. (Id. at 112.) Dr. Barnett ordered that
Plaintiff continue treatment ...