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Emerson v. Corizon Health Services

United States District Court, D. Arizona

September 30, 2019

Gary John Emerson, Plaintiff,
v.
Corizon Health Services, et al., Defendants.

          ORDER

          Honorable Roslyn O. Silver Senior United States District Judge

         Plaintiff Gary John Emerson, who is currently confined in the Arizona State Prison Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Corizon Health Services (“Corizon”)[1], Greg Fizer, Joanne Grafton, Bertram Hurowitz, Chris Johnson, Michael Lesac, Jeffrey Lavoy, former Director of the Arizona Department of Corrections (ADC) Charles L. Ryan[2], and Annemarie Smith-Whitson move for summary judgment.[3] (Doc. 146.) Plaintiff filed an Objection to Defendants' Motion for Summary Judgment (Doc. 167), which Defendants move to strike (Doc. 170). Also before the Court are Plaintiff's Motion for Extension of Time to Serve Shuman and Robertson (Doc. 142) and Magistrate Judge Willett's February 15, 2019 Report and Recommendation, recommending that the Court deny Plaintiff's Motion for Extension of Time (Doc. 154).

         The Court will adopt the February 19, 2019 Report and Recommendation; deny Plaintiff's Motion for Extension of Time to Serve Shuman and Robertson; dismiss Shuman and Robertson; deny as moot Defendants' Motion to Strike; and grant Defendants' Motion for Summary Judgment.

         I. Background

         In his original Complaint filed on January 20, 2015, Plaintiff named Corizon, Christine Peretra, Ryan, Lavoy, Hurowitz, Lesac, and Angela Townsend as Defendants. (Doc. 1.) On screening the Complaint, the Court determined that Plaintiff had stated a claim against Townsend and dismissed Corizon, Peretra, Ryan, Lavoy, Hurowitz, and Lesac. (Doc. 8.) On February 2, 2017, Magistrate Judge Willett issued a Report and Recommendation, recommending that the Court dismiss Townsend for failure to timely serve. (Doc. 26.) In a separate Order filed the same day, among other thigs, Magistrate Judge Willette granted Plaintiff leave to file an amended complaint. (Doc. 27.)

         Plaintiff filed his amended complaint on February 10, 2017 (Doc. 29) and named Corizon, Peretra, Ryan, Lavoy, Hurowitz, Lesac, and Townsend, as well Fizer, Grafton, Robertson, Shuman, and Smith-Whitson as Defendants. On March 24, 2017, Magistrate Judge Willett issued a Report and Recommendation (Doc. 31), recommending that the Court dismiss Defendants Lavoy, Hurowitz, Lesac, Corizon, Peretra, Ryan, Robertson, Shuman, Fizer, Smith-Whitson, Grafton, and Johnson and further recommended that the Court dismiss Townsend for the reasons set forth in the February 2, 2017 Report and Recommendation. On September 1, 2017, the Court adopted the February 2, 2017 Report and Recommendation and dismissed Townsend for failure to serve. (Doc. 33.)

         On January 11, 2018, the Court adopted the March 24, 2017 Report and Recommendation in part. (Doc. 36.) The Court dismissed Lavoy, Hurowitz, Lesac, Peretra, Ryan, Robertson, Shuman, Fizer, Smith-Whitson, Grafton, and Johnson but granted Plaintiff leave to file a motion for leave to file a second amended complaint that addressed the deficiencies identified in that Order and the Court's previous Orders. (Id.) The Court further ordered Corizon to answer to answer the First Amended Complaint. (Id.)

         On January 19, 2018, Plaintiff lodged a proposed second amended complaint (Doc. 37), which the Court struck on March 30, 2018. (Doc. 39.) The Court granted Plaintiff additional time to file a motion for leave to file a second amended complaint that complied with the Local Rules of Civil Procedure and the Court's prior Orders. (Id.) On April 5, 2018, Corizon answered Plaintiff's First Amended Complaint. (Doc. 40.) On April 9, 2018, Plaintiff filed a Motion to Amend and lodged a proposed Second Amended Complaint. (Docs. 42 and 43.) On April 30, 2018, Magistrate Judge Willett granted the Motion to Amend and directed the Clerk of Court to file the lodged Second Amended Complaint. (Doc. 47).

         In his Second Amended Complaint (Doc. 48), Plaintiff alleges that he suffers from neuropathy and chronic pain in his hands and feet, chronic pain due to degenerative disc disease in his back, and chronic pain from compressed vertebrae in his neck. (Id. at 4.)[4]Plaintiff alleges that Defendant Corizon denied and delayed treatment that had been prescribed by a doctor; Defendant Ryan was deliberately indifferent to Plaintiff's serious medical needs when Ryan denied Plaintiff's Inmate Grievance Appeal; Defendants Lavoy, Hurowitz, and Lesac delayed and denied treatment prescribed by a specialist and prescribed medications they knew Corizon would not approve; Defendants Grafton and Johnson were aware that Plaintiff's pain medications were not helping but they refused to prescribe different medication; Defendants Shuman, Fizer, and Smith-Whitson had a delegated duty to ensure prisoners received adequate care from Corizon but have refused to ensure this is done. (Id. at 14-15.) Plaintiff further alleges that Defendants Ryan, Shuman, Fizer, and Corizon knew Grafton and Johnson were denying treatment but refused to take corrective actions; Defendants Fizer and Smith-Whitson have a duty to ensure that prisoners receive treatment for their serious medical needs, but they refused to perform their duties according to ADC and Corizon's “custom and tradition” of denying and delaying treatment. (Id. at 19-20.)

         On screening the Second Amended Complaint (Doc. 48), the Court determined that Plaintiff had stated an Eighth Amendment deliberate indifference claim against Defendants Corizon, Lavoy, Hurowitz, Lesac, Ryan, Grafton, Johnson, Robertson, Shuman, Fizer, and Smith-Whitson and ordered them to address the claim.[5] (Doc. 50.)

         On January 24, 2019, Plaintiff filed a Motion to Enlarge Time to Serve Shuman and Robertson. (Doc. 142.) On February 15, 2019, Magistrate Judge Willett issued a Report and Recommendation, recommending that the Court deny Plaintiff's “Motion to Enlarge Time to Serve” and dismiss Defendants Shuman and Robertson. (Doc. 154.)

         On September 19, 2019, Plaintiff filed a Response to Defendants' Motion for Summary Judgment (Doc. 167) and a “Request [that] this Court Take Notice” (Doc. 168). On September 20, 2019, Defendants filed a Motion to Strike (Doc. 170) Plaintiff's Response.

         II. Motion to Enlarge Time to Serve

         In her Report and Recommendation recommending that the Court deny Plaintiff's Motion to Enlarge Time to Serve, Magistrate Judge Willett determined that although the United States Marshal's Service was unable to serve Robertson and Shuman with the address Plaintiff had provided, Plaintiff took no action to obtain alternative service addresses. (Doc. 154 at 3.) Thus, Magistrate Judge Willett concluded that Plaintiff had not shown good cause to grant a further extension of the service deadline. (Id.)

         The Court agrees with Magistrate Judge Willett's conclusions. Therefore, the Court will adopt the Report and Recommendation, deny Plaintiff's Motion to Enlarge Time to Serve, and dismiss Defendants Robertson and Shuman for failure to serve. ….

         III. 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. Eighth Amendment

         To support a medical care claim under the Eighth Amendment, a prisoner must demonstrate “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 standard and a subjective standard. 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).

         Second, a prisoner must show that the defendant's response to that need was deliberately indifferent. Jett, 439 F.3d at 1096. “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); see also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). Deliberate indifference may also be shown where prison officials fail to respond to a prisoner's pain or possible medical need. Jett, 439 F.3d at 1096. “In deciding whether there has been deliberate indifference to an inmate's serious medical needs, [courts] need not defer to the judgment of prison doctors or administrators.'” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989)).

         Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). “Neither negligence nor gross negligence will constitute deliberate indifference.” Clement v. California Dep't of Corrs., 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, to support an Eighth Amendment claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see Hunt, 865 F.2d at 200 (delay in providing medical treatment does not constitute Eighth Amendment violation unless delay was harmful).

         IV. Facts[6]

         Sometime before July 11, 2013, Plaintiff was prescribed gabapentin for pain.[7] (Doc. 147-1 at 2.) On July 17, 2013, a provider renewed Plaintiff's prescription for gabapentin. (Id.) In late September 2013, Plaintiff was also prescribed baclofen for back pain. (Id. at 4.) On December 12, 2013, Defendant Lesac saw Plaintiff at an offsite clinic. (Id. at 6.) Lesac requested that Plaintiff be evaluated for physical therapy for his complaints of chronic pain and back spasms. (Id.) On December 21, 2013, Plaintiff submitted a Health Needs Request (HNR) requesting gabapentin, which he stated he had not received although the prescription had been requested and reordered “long before” the prescription had expired.[8] (Id. at 9.)

         On January 29, 2014, Defendant Hurowitz requested a consultation for physical therapy for Plaintiff's back and neck pain, which was approved. (Id. at 11.) On March 19, 2014, Plaintiff submitted an HNR stating that his gabapentin had just been approved the week before, but he did not have any left. (Id. at 14.) On March 20, 2014, Angela Townsend responded to the HNR and stated gabapentin was not approved for Plaintiff and she would place Plaintiff on the provider line to discuss an alternative treatment. (Id.)

         On April 20, 2014, Plaintiff submitted an HNR stating that his gabapentin was not reordered, and he had not seen a doctor since then to discuss why it was not approved. (Id. at 16.) On April 21, 2014, Angela Townsend responded to the HNR and stated that Plaintiff was on the provider waiting list. (Id.) On April 30, 2014, baclofen and nortriptyline, a nerve pain medication and antidepressant, were ordered.[9] (Id. at 19.)

         On May 20, 2014, Plaintiff submitted an Inmate Informal Complaint Resolution, asserting he was being denied medical treatment for financial reasons and that Defendant Lavoy had refused to renew Plaintiff's gabapentin and had instead substituted it with nortriptyline. (Doc. 48 at 9.) On May 23, 2014, Angela Townsend responded to Plaintiff's Inmate Informal Complaint Resolution. (Id.) Townsend stated that gabapentin was a non-formulary medication that was not being reordered by Corizon or “Pharmacorr.” (Id.) On May 29, 2014, Correctional Officer (CO) III Scott “returned” ...


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