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More v. Ryan

United States District Court, D. Arizona

August 30, 2019

Michael More, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge

         Plaintiff 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);[1] (4) Plaintiff's Motion for Preliminary Injunction (Doc. 114); and (5) Plaintiff's Motion to Amend (Doc. 132).[2]

         I. Background

         In his 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.)

         II. Legal Standards

         A. Summary Judgment

         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).

         B. Medical Care Claim

         Under 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.

         Second, 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 1096.

         Deliberate 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.

         Finally, 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).

         III. Plaintiff's Medical History and Treatment

         Plaintiff 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.)

         On May 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.)

         On July 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.)

         On 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.)

         On May 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.)[3] 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).)

         On 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).)

         On 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).)

         On 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.)

         On 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).)

         On 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).)

         On 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.” (Id.)

         On 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 ...


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