United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
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”), Greg Fizer,
Joanne Grafton, Bertram Hurowitz, Chris Johnson, Michael
Lesac, Jeffrey Lavoy, former Director of the Arizona
Department of Corrections (ADC) Charles L. Ryan, and Annemarie
Smith-Whitson move for summary judgment. (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).
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.
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.)
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.)
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.)
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).
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.)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.)
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. (Doc. 50.)
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.)
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.
Motion to Enlarge Time to Serve
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.)
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. ….
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).
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
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)).
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.
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).
before July 11, 2013, Plaintiff was prescribed gabapentin for
pain. (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. (Id. at 9.)
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.
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. (Id. at 19.)
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” ...