United States District Court, D. Arizona
G. Campbell Senior United States District Judge
Michael More, currently confined in the Arizona State Prison
Complex (ASPC)-Lewis, Bachman Unit in Buckeye, Arizona,
brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983. The following motions are before the Court: (1)
Defendant Coleman's Motion for Summary Judgment (Doc.
95); (2) Plaintiff's Motion for Summary Judgment (Doc.
104); (3) Defendants Corizon, Ende, Grabowski, Labar, Myers,
Rogers, and Elijah's (“Corizon Defendants”)
Motion for Summary Judgment (Doc. 111); (4)
Plaintiff's Motion for Preliminary Injunction (Doc. 114);
and (5) Plaintiff's Motion to Amend (Doc.
First Amended Complaint, Plaintiff alleges that between 2016
and 2018, various prison officials and members of the prison
medical staff violated his Eighth Amendment right to medical
care when they failed to treat his chest pains, refused to
replace his automatic implantable cardioverter-defibrillator
(AICD), and ignored his need for chronic cardiology care.
(Doc. 12.) On screening pursuant to 28 U.S.C. §
1915A(a), the Court found that Plaintiff stated Eighth
Amendment medical claims against Defendants Corizon Health
Services, Nurse Practitioner (NP) Ende, Facility Health
Administrator (FHA) Rogers, Assistant FHA Labar, Deputy
Warden Coleman, Medical Records Supervisor Grabowski,
Registered Nurse (RN) Myers, Dr. Elijah, and Dr. Barnett and
directed them to answer. (Doc. 15.) The Court dismissed the
remaining claims and Defendants. (Id.)
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.
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.
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).
Medical Care Claim
the Eighth Amendment, a prisoner must demonstrate that a
defendant acted with “deliberate indifference to
serious medical needs.” Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). There are two prongs
to the deliberate-indifference analysis: an objective prong
and a subjective prong. First, a prisoner must show a
“serious medical need.” Jett, 439 F.3d
at 1096 (citations omitted). A “‘serious'
medical need exists if the failure to treat a prisoner's
condition could result in further significant injury or the
‘unnecessary and wanton infliction of pain.'”
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)
(internal citation omitted). Examples of a serious medical
need include “[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily
activities; or the existence of chronic and substantial
pain.” McGuckin, 974 F.2d at 1059-60.
a prisoner must show that the defendant's response to
that need was deliberately indifferent. Jett, 439
F.3d at 1096. A prison official acts with deliberate
indifference if he “knows of and disregards an
excessive risk to inmate health or safety; to satisfy the
knowledge component, the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). “Prison officials are deliberately
indifferent to a prisoner's serious medical needs when
they deny, delay, or intentionally interfere with medical
treatment, ” Hallett v. Morgan, 296 F.3d 732,
744 (9th Cir. 2002) (internal citations and quotation marks
omitted), or when they fail to respond to a prisoner's
pain or possible medical need. Jett, 439 F.3d at
indifference is a higher standard than negligence or lack of
ordinary due care for the prisoner's safety.
Farmer, 511 U.S. at 835. “Neither negligence
nor gross negligence will constitute deliberate
indifference.” Clement v. California Dep't of
Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002);
see also Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir. 1980) (mere claims of “indifference,
” “negligence, ” or “medical
malpractice” do not support a claim under § 1983).
“A difference of opinion does not amount to deliberate
indifference to [a plaintiff's] serious medical
needs.” Sanchez v. Vild, 891 F.2d 240, 242
(9th Cir. 1989). A mere delay in medical care, without more,
is insufficient to state a claim against prison officials for
deliberate indifference. See Shapley v. Nevada Bd. of
State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.
1985). The indifference must be substantial. The action must
rise to a level of “unnecessary and wanton infliction
of pain.” Estelle, 429 U.S. at 105.
even if deliberate indifference is shown, the prisoner must
demonstrate harm caused by the indifference. Jett,
439 F.3d at 1096; see Hunt v. Dental Dep't, 865
F.2d 198, 200 (9th Cir. 1989).
Plaintiff's Medical History and Treatment
arrived at ASPC-Eyman on April 18, 2016. (Doc. 112 (Corizon
Defs.'s Statement of Facts) ¶ 1.) The following day,
Plaintiff had a chronic care visit with provider Stephen
Graham. (Id. ¶ 2.) Graham noted that
Plaintiff's blood pressure was too elevated given
Plaintiff's chronic heart condition, so he ordered
Candesartan Cilexetil (Atacand) to treat Plaintiff's high
blood pressure and submitted a request for an offsite
cardiology appointment. (Id.)
25, 2016, Plaintiff had an offsite cardiology appointment
with Dr. Shanta Kumar at Goldfield Cardiovascular Institute.
(Id. ¶ 3.) Dr. Kumar assessed Plaintiff with
hypertension and congestive heart failure. (Doc. 112 at 27
(Corizon Defs.' Ex. C).) Plaintiff reported that he was
“feeling great without any chest pain or shortness of
breath, ” and Dr. Kumar noted that Plaintiff was
“totally asymptomatic.” (Id.)
20, 2016, Plaintiff had a follow-up appointment with Dr.
Kumar and reported that he “does [a] lot of exercise in
the correctional facility.” (Doc. 100 at 103 (Pl.'s
Ex. A); Doc. 105 at 8 (Pl.'s Ex. 2).) Dr. Kumar noted
that Plaintiff was “totally asymptomatic, ” his
AICD was working “very well, ” “[t]he
battery life appears to be good for another four years,
” and Plaintiff's echocardiogram indicated that his
ejection fraction had improved to 55-60% which Dr. Kumar
described as “almost normal at this point.”
(Id.) Dr. Kumar recommended that Plaintiff return in
six months for a “pacer check.” (Id.)
November 14, 2016, Plaintiff had an onsite appointment with
Defendant Dr. Barnett. (Doc. 112 ¶ 5.) Defendant Barnett
noted that Plaintiff “occasionally misses doses of
carvedilol, but takes most of the time.” (Id.
at 35 (Corizon Defs.' Ex. E).) Plaintiff contends that he
“has never . . . refused to take his
medications.” (Doc. 116 (Pl.'s Statement of Facts)
¶¶ 5-6.) Defendant Barnett advised Plaintiff to
continue his medication. (Doc. 112 ¶ 5.) Defendant
Barnett saw Plaintiff again the following day for a chronic
care appointment. (Id. ¶ 6.) Defendant Barnett
noted Plaintiff's history of high blood pressure and
chronic heart failure. (Id. at 39 (Corizon
Defs.' Ex. F).) Plaintiff reported that he felt
“great” when discussing his heart condition.
(Id.) At the time, Plaintiff had prescriptions for
Ibuprofen, Aspirin, Candesartan Cilexetil, and Carvedilol
(high blood pressure/heart failure). (Id. at 43-44.)
Defendant Barnett ordered an EKG. (Id. at 45.)
11, 2017, Plaintiff had an onsite chronic care appointment
with Defendant Dr. Elijah. (Id. ¶ 7.) Plaintiff
reported intermittent chest pain. (Id. at 48
(Corizon Defs.' Ex. G).) Dr. Elijah noted that
Plaintiff's AICD had been placed in 2009 and that it was
currently “in place to left upper chest, incision well
healed at insertion site.” (Id. at 48- 49.) He
also noted that Plaintiff was due for a cardiology follow-up
to check his AICD. (Id. at 54.) Dr. Elijah ordered
that Plaintiff “continue off candesartan for now”
and try to lose 10-20 pounds. (Id.) Dr. Elijah also
recommended monthly blood pressure checks for three months.
(Id.) Plaintiff's Naproxen (anti-inflammatory),
Carvedilol, and Aspirin were renewed in May 2017.
(Id. at 60 (Corizon Defs.' Ex. H).)
August 21, 2017, Plaintiff submitted a Health Needs Request
(HNR) requesting an appointment to see a cardiologist for his
chronic heart condition. (Doc. 96 (Coleman Statement of
Facts) ¶ 1.) The following day, Defendant RN Myers
entered a Health Service Request referring Plaintiff's
complaint to the provider for review. (Doc. 112 at 57
(Corizon Defs.' Ex. H).) Plaintiff's Paroxetine
(anti-depressant) was renewed on August 23, 2017.
(Id. at 60.) On August 31, 2017, Plaintiff was seen
by Defendant NP Ende. (Id. ¶ 8.) Defendant Ende
ordered several lab tests, a chest x-ray, and a cardiology
consult. (Id. at 61.) Plaintiff's Candesartan
Cilexetil was renewed on September 2, 2017. (Doc. 112 at 77
(Corizon Defs.' Ex. K).)
October 2, 2017, Plaintiff had an appointment at Integrated
Medical Services (IMS) Cardiology. (Doc. 96 ¶ 2.) During
this appointment, Plaintiff's AICD was examined, and it
was noted that the voltage was “too low for projected
remaining capacity” and that the battery had been
depleted on September 6, 2017. (Id.; Doc. 96-1 at
4-6.) A chest x-ray was recommended to evaluate
Plaintiff's AICD for a possible lead fracture. (Doc. 105
at 10 (Pl.'s Ex. 4).) On October 12 and 13, 2017,
Plaintiff submitted HNRs complaining that he was having
“regular chest pains, ” that his “AICD is
not working, ” and requesting to have an
echocardiogram. (Doc. 96 ¶ 3; Doc. 96-1 at 8; Doc. 105
at 14-15 (Pl.'s Exs. 5, 6).) On October 14, 2017,
Defendant Ende requested an urgent cardiology consult for
Plaintiff. (Doc. 112 at 69-73 (Corizon Defs.' Ex. J).)
October 16, 2017, Plaintiff submitted an Inmate Letter to
Defendant Coleman stating that he needed to see a
cardiologist to have his AICD replaced. (Doc. 96 ¶ 4.)
Defendant Coleman asserts that after receiving
Plaintiff's letter, he visited Plaintiff at his cell and
told Plaintiff that he would speak to the medical staff on
Plaintiff's behalf to get Plaintiff seen by a provider.
(Id. ¶ 5.) When Defendant Coleman spoke to the
medical staff, he was informed that Plaintiff did not need a
new AICD, and Defendant Coleman relayed this information to
Plaintiff. (Id. ¶ 5.) Defendant Coleman is not
a medical provider and does not have any medical training.
(Id. ¶ 15.) Defendant Coleman is not involved
in making treatment decisions. (Id. ¶ 14.)
October 18, 2017, Plaintiff was seen by Defendant Ende at
sick call. (Doc. 112 ¶ 11.) Defendant Ende noted that
there was a questionable reading on Plaintiff's AICD and
there was no battery life left; he also noted that a
cardiology consult request had already been submitted.
(Id. at 75-76 (Corizon Defs.' Ex. K).)
October 24, 2017, Plaintiff was seen by onsite provider Dr.
Paul, and the plan notes stated the following:
[C]all placed to IMS . . . case [discussed with] Dr.
Battacharya. Reports that battery will need to be replaced.
Informed of [Plaintiff's complaints of] chest pain
however he feels that the chest pain is not related to the
AICD. Would like follow up with [Plaintiff] to evaluate chest
pain perhaps obtain an echo and/or stress test. [Plaintiff
was] informed of conversation with Dr. Battacharya and that
consult for follow up with cardiology is scheduled however
date is pending.
(Doc. 100 at 122 (Pl.'s Ex. 30).) Chest x-rays were
ordered “to check for lead fracture.”
(Id.) On October 27, 2017, Plaintiff's
prescriptions for Carvedilol, Aspirin, and Naproxen were
renewed. (Doc. 112 at 95 (Corizon Defs.' Ex. N).)
October 30, 2017, Plaintiff submitted grievance number
L34-020-017 to Defendant Rogers complaining that he was not
receiving adequate treatment for his chest pain and that his
AICD had not been replaced. (Doc. 100 at 118 (Pl.'s Ex.
9).) That same day, Plaintiff was seen offsite at IMS
Cardiology by Dr. Adhar Seth. (Doc. 96 ¶ 8.) The
examination report indicated that Plaintiff had prescriptions
for Aspirin, Atacand, Carvedilol, Naproxen, and Paroxetine.
(Doc. 96-1 at 17.) Dr. Seth noted “[AICD] battery
depleted. Let[']s see what his EF [e]ection fraction] is
and we may need to have EP [electrophysiologist] see him to
have generator change.” (Id. at 18.) Dr. Seth
recommended for Plaintiff to continue his medications and to
follow up “after echo or sooner if needed.”
November 3, 2017, Defendant Coleman followed up with
Plaintiff to confirm that he had been seen onsite by the
medical staff. (Doc. 96 ¶ 9.) On November 7, 2017,
Plaintiff saw Defendant Myers at sick call and requested to
“see psych immediately” because he was
experiencing panic attacks, mood swings, and nightmares due
to his pacemaker not working. Defendant Myers ...