Griswold v. Ryan

          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 ...