Vijan v. Corizon Health Services

          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 ...