United States District Court, D. Arizona
David E. Griswold, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.
ORDER
David
G. Campbell Senior United States District Judge.
Plaintiff
David E. Griswold, who is confined in the Arizona State
Prison Complex (ASPC)-Lewis, has filed a pro se civil rights
Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an
Application to Proceed In Forma Pauperis (Doc. 2). The Court
will join Centurion Health LLC and Acting Director Joseph
Profiri in his official capacity as Defendants for the sole
purpose of answering Plaintiff's claims for injunctive
relief, order Defendants Corizon, Centurion Health, and
Profiri to answer the Complaint, and dismiss the remaining
Defendants without prejudice.
I.
Application to Proceed In Forma Pauperis and Filing
Fee
The
Court will grant Plaintiff's Application to Proceed In
Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay
the statutory filing fee of $350.00. 28 U.S.C. §
1915(b)(1). The Court will assess an initial partial filing
fee of $21.62. The remainder of the fee will be collected
monthly in payments of 20% of the previous month's income
credited to Plaintiff's trust account each time the
amount in the account exceeds $10.00. 28 U.S.C. §
1915(b)(2). The Court will enter a separate Order requiring
the appropriate government agency to collect and forward the
fees according to the statutory formula.
II.
Statutory Screening of Prisoner Complaints
The
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1)-(2).
A
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While
Rule 8 does not demand detailed factual allegations,
“it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id.
“[A]
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Thus, although a plaintiff's specific factual allegations
may be consistent with a constitutional claim, a court must
assess whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681.
But as
the United States Court of Appeals for the Ninth Circuit has
instructed, courts must “continue to construe pro
se filings liberally.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed
by a pro se prisoner] ‘must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
III.
Complaint
In his
two-count Complaint, Plaintiff sues Corizon Health Care Inc.
(“Corizon”), [1]former Director of the Arizona
Department of Corrections (ADC) Charles L. Ryan,
[2]Interim Divisional Director of Health
Services Richard Pratt, Regional Medical Director Ayodeji
Ladele, and Nurse Practitioners (NP) Curtis Bass, Lawrence E.
Ende, and Marie DeMello. Plaintiff asserts claims of
inadequate medical care and seeks declaratory, injunctive,
and monetary relief.
In
Count One, Plaintiff alleges the following:
On August 25, 2011, while housed at ASPC-Tucson Whetstone
Unit, Plaintiff was assaulted with a “lock in a
sock” and was stomped on and “choked out.”
Plaintiff suffered “tremendous” cuts and
abrasions on his head and neck and was taken to the hospital.
Plaintiff was treated with stitches for the cuts and returned
to the prison the following day. Approximately one month
later, Plaintiff began to experience neck and spine pain. He
complained to ADC Medical of his ongoing pain. By September
30, 2011, the neck and spine pain became unbearable, and
Plaintiff lost mobility in his right arm and hand.
Plaintiff's pain level was an “acute level 10,
” and the prison “medical team”
administered pain medications to Plaintiff. Plaintiff took
different pain medications for nearly two years before he was
released from prison on April 4, 2013.
On
April 5, 2013, Plaintiff went to a hospital, had x-rays
taken, and was examined by a doctor, who diagnosed Plaintiff
with a broken neck. The doctor explained that Plaintiff would
be permanently disabled if he did not have immediate surgery
to fuse his spine and neck together. Plaintiff had the fusion
surgery, but because of the nearly two- year delay, Plaintiff
now has pain control issues and must take pain medications
“permanently.” Plaintiff was arrested on new
charges on September 22, 2015 and was held in a Maricopa
County Jail to await trial. The jail medical service
“recognized” Plaintiff's pain and suffering
by taking x-rays, reaching a professional diagnosis, and
administering needed pain medications. At the time, Plaintiff
was taking gabapentin and baclofen to relieve the nerve
damage in his neck and spine.
Plaintiff
was in Maricopa County custody for two years and was
ultimately convicted and sentenced to a 9-year prison term in
ADC. In September 2017, Plaintiff was placed in ASPC-Lewis
Buckley Unit. Plaintiff saw a Corizon healthcare provider,
who “did not believe” that Plaintiff had a neck
or spine injury or nerve damage and refused to treat him.
Plaintiff had his medical records sent to Buckley Unit
medical on October 3, 2017, but he was denied pain medication
and was instead placed on an Alternative Treatment Plan
(ATP).
In
January 2018, Plaintiff was moved to Barchey Unit. Plaintiff
submitted a Health Needs Request (HNR) and saw Defendant
Bass. Plaintiff explained that his neck and spine had been
fused, and he had sustained nerve damage and had
“serious level 10 pain” with movement. Plaintiff
told Bass he needed to see a pain control specialist and be
prescribed pain medication that worked, because the ibuprofen
he had been taking did not relieve the pain. ADC and Corizon
policy only permitted Bass to make referrals to Corizon's
Utilization Management (UM) unit, which approved referrals to
specialists and pain medication prescriptions. Bass
“made referrals” to Defendant Ladele for
Plaintiff to see a specialist and be given pain medication,
but the referral was denied, and Plaintiff received no
medical care for his pain. Instead, Plaintiff was placed on
an ATP, which, according to Plaintiff, “can only be
deemed no treatment.”
In May
2018, Plaintiff submitted another HNR and saw Defendant Ende.
After “diagnosing” Plaintiff, Ende submitted a
referral to Defendant Ladele, requesting that Plaintiff be
referred to a specialist and receive
“recommended” pain medication. All referrals were
denied, and Plaintiff was kept on an ATP. Plaintiff
“sat in pain” for another five months, and in
October 2018 he submitted another HNR for pain control.
Defendant DeMello submitted referrals to Ladele, requesting
that Plaintiff be seen by a specialist to “determine
his pain” and to receive pain medication. The referral
was denied, and Plaintiff was kept on an ATP.
Plaintiff
suffers multiple fused vertebrae in his upper neck and back,
which causes nerve damage, or neuropathy, from his neck down
his right arm to his hands and fingers. He feels “level
10 pain” in those areas and numbness in his arm and
hand. Plaintiff also has muscle spasms, and at times his hand
“lock[s] up” and shakes uncontrollably. Plaintiff
suffers tinnitus in both ears and migraine headaches. He has
spoken with mental health staff about having suicidal
thoughts because he cannot stop the pain, and no one will
help him.
Plaintiff
alleges that Defendant Ryan, as ADC Director,
“promised” Plaintiff through written policies and
practices to allocate sufficient resources to allow Plaintiff
to receive the “community standard of health
care.” Plaintiff contends that ADC has fallen far below
the federally-mandated measure set forth in Department Order
(DO) 110.01, and Ryan's policy is “more honored in
the breach th[a]n in observance.” Plaintiff claims this
has left him at the mercy of a “de-facto” policy
that caused and still causes Plaintiff serious pain and
suffering. Plaintiff asserts that, despite the stipulation in
Parsons v. Ryan, CV-12-00601-PHX-ROS, [3] Ryan failed to
“discuss” performance measures concerning
adequate staffing and the “unlawful[]”method of
permitting UM to make treatment decisions with Defendant
Corizon until November 2017. Plaintiff alleges that UM denies
referrals for medical procedures and offsite specialist
visits to save money, which Plaintiff claims “had been
addressed formally” in the stipulation in
Parsons and testimony by “whistleblower”
Corizon staff. Plaintiff asserts that Ryan was fined and held
in contempt for failing to comply with the stipulation.
Plaintiff
contends that instead of “push[ing]” Corizon to
meet the constitutionally-mandated level of health care for
Plaintiff and other ADC prisoners by “punishing”
Corizon with monetary penalties, Ryan paid Corizon $2.5
million “as a reward” and told the Court in
Parsons that it was a “good business
decision.” Plaintiff alleges that Ryan's
“business decision” to contract with a private
vendor to save money set into motion a series of events that
resulted in Plaintiff being denied needed health care.
Plaintiff asserts that Ryan knew or should have known
contracting with a private vendor would cause a
constitutional violation, because Corizon staff are still
denying him health care, and Corizon is still denying
referrals for Plaintiff to see a specialist and receive pain
medication. Plaintiff claims this is being done to save
money. Plaintiff contends that Ryan's “indirect
participation” makes him liable for deliberate
indifference to Plaintiff's serious medical needs, which
has caused Plaintiff unnecessary and wanton pain and
suffering.
Plaintiff
alleges that Defendant Pratt was deliberately indifferent by
“monitoring through policy and practice” and
“allowing” Corizon to fail to provide Plaintiff
with adequate health care. Plaintiff asserts that Pratt was
also deliberately indifferent to systemic failure to fix the
issues, such as Corizon's inadequate staffing at
ASPC-Lewis and UM's practice of denying needed specialist
visits and pain medication to save money. Plaintiff contends
that Pratt has “set forth a series of inaction, ”
in that Pratt knew or should have known, due to being
“formally” alerted to the violations through
Court findings and testimony by Corizon whistleblowers, that
Corizon's provision of health care would and has caused
violation of Plaintiff's rights.
Plaintiff
alleges that Defendant Corizon was deliberately indifferent
when UM denied Defendants Bass, Ende, and DeMello's
requests for referrals to a specialist and pain medication to
save money. Plaintiff claims the “Alternative Treatment
Plan” amounts to “no treatment at all, ”
which caused Plaintiff to suffer unnecessary and wanton pain.
Plaintiff
alleges that Defendants Bass, Ende, and DeMello were
deliberately indifferent when they “conceded to”
UM and Defendant Ladele's denial of the referrals they
had requested. Plaintiff asserts Ladele was deliberately
indifferent “by” ADC and Corizon's policy and
practice of denying referrals to specialists and pain
medications to save costs.
In
Count Two, Plaintiff alleges the following:
Plaintiff has had hepatitis C (HCV) for many years. In
December 2018, Plaintiff saw Defendant DeMello, who informed
Plaintiff that his APRI score was 2.1. On May 9, 2019,
Plaintiff saw Defendant Ende. Ende told Plaintiff his APRI
score had increased to 2.285, but rather than refer Plaintiff
for HCV treatment, Ende placed Plaintiff on an ATP, which
consisted of “bottles of some type of syrup” to
remove ammonia from his blood. Corizon follows ADC's
Health Services Technical Manual and Clinical Practice
Guidelines for the Prevention and Treatment of Viral
Hepatitis C. The ADC policy provides that prisoners with an
APRI score of more than 2.0 qualify for the highest priority
level for hepatitis C treatment.
Plaintiff
suffers progressive HCV infection that causes abdominal pain,
liver swelling, and lethargy. If the HCV is not immediately
treated, Plaintiff may endure total liver failure, cirrhosis,
cancer, fibrosis, or early death. Plaintiff also suffers
mental disorders that are documented with the prison
psychologist, including past suicidal thoughts because ADC
and Corizon will not provide the medical care he needs, and
he “just gets more ill every day.” Plaintiff
alleges that Defendants DeMello and Ende were deliberately
indifferent when they referred Plaintiff to receive HCV
treatment, but when the referrals were denied, they
“failed to file an appeal.” Plaintiff claims this
delay in treatment has caused him unnecessary and wanton pain
and suffering. Plaintiff asserts that Defendant Ladele denied
Plaintiff HCV treatment for financial reasons. Plaintiff
contends that Corizon's policy and practice permitted
Ladele, a “non-specialist” in HCV treatment, to
deny approval for HCV treatment in favor of an ATP to save
costs.
Plaintiff
contends that although he “meets all
requirements” for HCV treatment, he has been denied
treatment, which “clearly” shows that Corizon is
trying to save money at the expense of Plaintiff's health
and well-being. Plaintiff asserts that Defendant Ryan is
liable as a “third party” because Ryan has
knowingly permitted Corizon to only fulfill a reasonable
standard of health care dependent on
“cost-contained” policy and practice. Plaintiff
also alleges that Defendant Pratt knowingly allowed Corizon
to deny Plaintiff HCV treatment and to provide only a
“reasonable” standard of health care.
IV.
Failure ...