PATRICIA A. OROZCO

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication -

Rule 28, Arizona Rules of

Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2009-001173

The Honorable Michael J. Herrod, Judge

REVERSED AND REMANDED

Thomas C. Horne, Arizona Attorney General

By Michael E. Gottfried, Assistant Attorney General

Daniel P. Schaack, Assistant Attorney General
Attorneys for Defendants/Appellees

Phoenix Robbins & Curtin, PLLC

By Joel B. Robbins

Anne E. Findling
Attorneys for Plaintiffs/Appellants

Phoenix OROZCO, Judge ¶1 This action arises out of the death of Manuel F. Ballesteros, a prisoner incarcerated by the Arizona Department of Corrections (ADOC). Alexandria R. Ballesteros, the personal representative of Ballesteros' estate, and Francisca Lucero Landovazo, on behalf of Ballesteros' statutory beneficiaries (collectively, Plaintiffs) brought this action for wrongful death under state law and for violation of 42 U.S.C. § 1983 (2006) against the State of Arizona and ADOC employee Sergeant Joshua Allen (collectively, Defendants). Plaintiffs appeal the superior court's summary judgment for Defendants. For the following reasons, we reverse and remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On January 13, 2008, Ballesteros, an ADOC inmate, began experiencing influenza-like symptoms. As his condition deteriorated over the following week, he repeatedly requested medical attention. Despite his requests, he did not receive medical evaluation or treatment for eight days. On January 21, 2008, a nurse distributing medication to inmates in Ballesteros' dormitory observed his condition, and he was taken to the prison medical clinic. He was immediately transported by ambulance to Maricopa Medical Center and died the following morning from pneumonia, sepsis, and methicillin-resistant Staphylococcus aureus (MRSA), which may have arisen from an influenza infection. ¶3 Plaintiffs filed this action against Defendants. They alleged Allen violated 42 U.S.C. § 1983 through his deliberate indifference to Ballesteros' serious medical condition, resulting in prolonged suffering that amounted to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. They also maintained the State negligently failed to provide Ballesteros timely access to medical care and asserted a wrongful death claim pursuant to Arizona Revised Statutes (A.R.S.) section 12-611 (2003). ¶4 The State moved for summary judgment on Plaintiffs' wrongful death claim, asserting the claim failed as a matter of law because Plaintiffs had neither produced expert testimony to establish the applicable standard of care nor shown that the delay in treating Ballesteros caused him harm. Allen moved for summary judgment on the grounds that Plaintiffs' § 1983 claim failed as a matter of law because they had not offered any evidence that (1) Ballesteros was suffering from a serious medical condition, (2) Allen acted with deliberate indifference, or (3) Allen's failure to provide Ballesteros with earlier access to medical treatment caused his death. Allen also asserted that he was entitled to qualified immunity from liability because Ballesteros' constitutional right was not clearly established at the time of his death. ¶5 The court granted summary judgment for Defendants. Plaintiffs timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101.A.1 (Supp. 2012).

DISCUSSION

¶6 Plaintiffs argue the superior court erred because genuine questions of material fact precluded summary judgment. A court may grant summary judgment when "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). We view the evidence in the light most favorable to Plaintiffs and determine de novo whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Unique Equip. Co. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999).

Wrongful Death Claim

¶7 Arizona law allows a decedent's survivors to assert a cause of action for wrongful death when a defendant's negligence caused the death. A.R.S. §§ 12-611 to -613 (2003). To establish a claim for negligence, a plaintiff must prove (1) the existence of a duty requiring the defendant to conform to a certain standard of care, (2) the defendant's breach of that duty, (3) a causal connection between the breach and the resulting injury, and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). ¶8 Arizona law requires the State to provide medical and health services for prisoners. A.R.S. § 31-201.01.D (Supp. 2012). Plaintiffs alleged the State breached this duty by failing to timely provide Ballesteros with medical treatment or transport him for emergency medical care. The trial court ruled, however, that Plaintiffs' wrongful death claim failed as a matter of law because they had not offered expert testimony to establish the standard of care applicable to correctional officers under the specific circumstances at issue in this case, i.e., the standard of care for managing prison inmates' medical needs. ¶9 Generally, the standard is that of a reasonably prudent person and "it is not necessary for the plaintiff to present evidence to establish the standard of care because the jury can rely on its own experience in determining whether the defendant acted with reasonable care under the circumstances." Bell v. Maricopa Med. Ctr. , 157 Ariz. 192, 194, 755 P.2d 1180, 1182 (App. 1988). The law requires expert testimony to establish the standard of care only when a layperson cannot determine whether a particular practice is negligent or if factual issues are beyond a layperson's common understanding. Rossell v. Volkswagen of Am. , 147 Ariz. 160, 166-67, 709 P.2d 517, 523-24 (1985); see also Rudolph v. Ariz. B.A.S.S. Fed'n, 182 Ariz. 622, 626, 898 P.2d 1000, 1004 (App. 1995) ("Expert testimony is unnecessary when the disputed subject is something that persons unskilled in the relevant area are capable of understanding and are therefore able to decide relevant fact questions without the opinions of experts."). "Expert testimony is . . . a device allowing the trier to receive information, beyond its competence, useful to a resolution of the dispute before it." Wal-Mart v. Indus. Comm'n of Ariz., 183 Ariz. 145, 147, 901 P.2d 1175, 1177 (App. 1995) (citation and internal quotation marks omitted). ¶10 In this case, there is no need for expert testimony regarding the standard of care because a layperson can understand the disputed issues and decide the questions of fact without assistance. A typical jury would be able to determine without expert testimony whether the State controlled prisoners' access to medical care in a reasonable manner so as not to subject Ballesteros to an undue risk of harm. The State's management of prisoner medical care and its failure to respond to Ballesteros' repeated requests for care are not factual issues outside the common understanding of jurors. See, e.g., Rudolph, 182 Ariz. at 626, 898 P.2d at 1004 (holding that plaintiff was not required to present expert testimony regarding the appropriate standard of care for the operation of a fishing tournament because a typical jury would be able to determine without expert testimony whether the club conducted the tournament in a reasonable manner); Rossell, 147 Ariz. at 168, 709 P.2d at 525 (holding that plaintiff was not required to produce expert evidence that "good design practice" required a certain vehicle design because the jury could decide this issue on the basis of its own experience and knowledge of what was reasonable). ¶11 The State cites to Hughes v. District of Columbia, 425 A.2d 1299 (D.C. 1981) as instructive. We disagree. In Hughes, the District of Columbia Court of Appeals held that expert testimony was necessary to establish the standard of care applicable to prison officials with respect to inmate safety. Id. at 1303. While the issue of inmate safety is not "within the realm of the everyday experiences of a lay person," id., inmate access to medical care, after an appropriate request, is within a lay person's realm of experience. ¶12 The superior court appears to have accepted the State's argument and applied the requirements of professional malpractice cases, in which the reasonable person standard is replaced by one based upon the usual conduct of other members of the defendant's profession in similar circumstances. Bell, 157 Ariz. at 194, 755 P.2d at 1182; see also Lasley v. Shrake's Country Club Pharmacy, Inc., 179 Ariz. 583, 586-87, 880 P.2d 1129, 1132-33 (App. 1994) (holding that the reasonably prudent person standard did not apply to pharmacists, who would be held to a standard of care based upon the usual conduct of other members of the profession); A.R.S. § 12-563 (2003) (requiring a plaintiff who asserts a medical malpractice claim against a health care provider to prove that the provider failed to follow the standard of care of a reasonable provider acting in similar circumstances). However, we disagree that, under the circumstances of this case, the State and its prison officials are subject to a professional standard of care, rather than that of a reasonable person. ¶13 Accordingly, the superior court erred in granting summary judgment for the State on the grounds that Plaintiffs' wrongful death claim fails as a matter of law because Plaintiffs did not disclose expert testimony regarding the standard of care.

Section 1983 Claim

Failure to State a Claim ¶14 Plaintiffs asserted a § 1983 claim against Allen for his failure to timely secure medical attention for Ballesteros. "Section 1983 allows a plaintiff to assert a cause of action against any person who, under color of state law or authority, deprives another person of 'any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Braillard v. Maricopa Cnty., 224 Ariz. 481, 489, ¶ 20, 232 P.3d 1263, 1271 (App. 2010) (citing 42 U.S.C. § 1983). Deliberate indifference to a prisoner's serious medical needs, including a prison guard's denial or delay of access to medical care, is unconstitutional and states a cause of action under § 1983. Id. (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). ¶15 Generally, the issues of serious medical need and deliberate indifference are questions for a jury. Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004). Defendants argue, however, that Plaintiffs' claim failed as a matter of law because Plaintiffs did not present sufficient evidence to establish either element.

Serious Medical Need ¶16 A medical condition is "serious" when the failure to treat the "condition could result in further significant injury or the unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted). ¶17 Defendants argue influenza-like symptoms, as a matter of law, do not constitute a serious medical need, citing Wynn v. Corr. Officer Mundo, 367 F.Supp.2d 832 (M.D.N.C. 2005). In that case, an inmate asserted a § 1983 claim against prison officials when he did not receive medical treatment for twenty-four hours after he complained of fever, body aches and chills, and it was later determined he was suffering from pneumonia. Id. at 835, 838. The court noted that such influenza-like symptoms arguably did not constitute a serious medical need, but held that even assuming they did, the delay between the inmate's complaint and his receipt of medical treatment did not constitute deliberate indifference to his health or safety. Id. at 838. ¶18 Here, unlike the plaintiff in Wynn who was denied treatment for only twenty-four hours, Ballesteros exhibited worsening influenza and respiratory symptoms and received no treatment for eight days. Ballesteros was visibly ill on January 13, 2008, when he visited with his family at the prison, and he stayed in bed and did not attend work or bible study on January 14, 2008. On the evening of January 15, 2008, Ballesteros' condition was worse; he was audibly wheezing and shivering despite his warm clothes and the normal room temperature. As the week progressed, Ballesteros' condition worsened; he missed meals and was unable to work, exercise, or attend bible study. By January 19, 2008, he felt worse and complained of pain in his lymph nodes. ¶19 On January 21, 2008, Ballesteros was too ill to push the emergency button to summon officers, and another inmate, Ruben Perez, contacted an officer to try to get Ballesteros medical attention. Ballesteros approached the medication nurse when she came to the dormitory but was unable to speak, and another inmate told the nurse Ballesteros had been ill. The nurse called for a wheelchair to transport Ballesteros to the medical clinic. When Ballesteros arrived at the clinic, the on-duty nurse noted he was audibly wheezing, pale, and sweating, with a body temperature of 96.4 degrees and blood pressure of 148/80. He was immediately transported to Maricopa Medical Center and arrived "either septic or just about to be septic within a very short period of time." Despite overnight efforts to treat Ballesteros, including administering antibiotics and attempting to resuscitate him several times, he died on the morning of January 22, 2008. ¶20 Clearly, a jury could determine Ballesteros had a serious medical need. He was unable to participate in his normal activities for eight days, during which time he experienced pain and his respiratory symptoms worsened. His condition affected his daily activities and was the type of illness a doctor would find noteworthy. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (stating that serious medical needs 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"), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Once Ballesteros' influenza-like symptoms had persisted for several days and his condition continued to deteriorate, a reasonable layperson would recognize that he required a doctor's attention. ¶21 Accordingly, a reasonable jury could determine Ballesteros' illness constituted a serious medical need and Plaintiffs presented a genuine issue of material fact on this issue.

Deliberate Indifference ¶22"To prevail on a § 1983 claim under these circumstances, a plaintiff 'need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.'" Braillard, 224 Ariz. at 489, ¶ 20, 232 P.3d at 1271 (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Generally, whether a prison official had knowledge of a substantial risk of serious harm is a question of fact for the jury. Id. at 490, ¶ 20, 232 P.3d at 1272. Defendants argue, however, that Plaintiffs did not offer sufficient evidence to raise a material question of fact regarding whether Allen acted with deliberate indifference. ¶23 Viewing the evidence in the light most favorable to Plaintiffs, we determine a reasonable jury could find that Allen failed to act despite knowing there was a substantial risk of serious harm to Ballesteros. ¶24 Ballesteros was visibly ill on January 13, 2008 and told his sister he felt sick, had taken ibuprofen, and planned to submit paperwork to see the doctor. He filled out a Health Needs Request (HNR) form on January 15 or 16, 2008. Throughout the week, his condition worsened; he missed meals and was unable to work, exercise, or attend bible study. Perez and other inmates began to notice that Ballesteros needed medical attention, and another inmate informed an officer that Ballesteros wanted to go to the medical clinic. The officer contacted the shift commander, Allen, who visited the dormitory, told Ballesteros that the medical clinic was over-crowded because influenza was going around and advised him to drink plenty of fluids and submit an HNR. ¶25 On January 19, 2008, Ballesteros told another officer he needed medical attention. The officer relayed Ballesteros' request to her supervisor and reported that her supervisor told her there was no doctor available. Allen also visited the dormitory to ask Ballesteros about his symptoms, told him influenza was going around the prison, and advised him to drink plenty of fluids, wash his hands, and submit an HNR. ¶26 On January 20, 2008, Ballesteros again asked for medical attention. An officer reported that Allen advised Ballesteros to stay in bed and drink plenty of fluids because "everybody has the flu." ¶27 On January 21, 2008, Ballesteros was too ill to push the emergency button to summon officers, and Perez contacted an officer to try to get Ballesteros medical attention. Ballesteros approached the medication nurse when she came to the dormitory but was unable to speak, and another inmate told the nurse Ballesteros had been ill. The nurse called for a wheelchair to transport Ballesteros to the medical clinic. When he arrived, the on-duty nurse noted he was audibly wheezing, pale, and sweating and had a body temperature of 96.4 degrees and blood pressure of 148/80. ¶28 A reasonable jury could find that Allen had knowledge of a substantial risk of serious harm to Ballesteros and acted with deliberate indifference to that risk. Allen knew Ballesteros was ill by the middle of the week of January 13, 2008, and despite his worsening condition, Allen repeatedly told him to rest rather than contacting the medical clinic to get him treatment. A reasonable jury could determine Allen was aware of the severity of Ballesteros' illness and chose to deny, delay, or intentionally interfere with his medical treatment. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (stating prison officials are deliberately indifferent to serious medical needs when they "deny, delay or intentionally interfere with medical treatment"). ¶29 As Plaintiffs offered sufficient evidence for a jury to find Allen acted with deliberate indifference toward Ballesteros' serious medical need, the superior court erred by granting summary judgment for Allen on Plaintiffs' § 1983 claim.

Qualified Immunity ¶30 Finally, Defendants urge us to uphold the court's summary judgment on the grounds that Allen was entitled to qualified immunity. ¶31 "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Braillard, 224 Ariz. at 493-94, ¶ 39, 232 P.3d at 1275-76 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Federal and state officials are therefore immune from § 1983 claims for money damages unless the plaintiff pleads facts showing that (1) the official violated a statutory or constitutional right, and (2) the right was "clearly established" at the time of the challenged conduct. Ochser v. Funk, 228 Ariz. 365, 369, ¶ 12, 266 P.3d 1061, 1065 (2011). ¶32 While conceding that a prisoner's right to adequate medical care is well-established, see Estelle, 429 U.S. at 103, Defendants nevertheless argue Allen was entitled to qualified immunity because a reasonable officer in his position would not have known that Allen's specific conduct violated that right. In particular, Defendants argue it was not clearly established under the law that failing to treat influenza-like symptoms violated an inmate's Eighth Amendment rights. However, the United States Supreme Court has refused to apply qualified immunity so broadly that all official action is protected by the doctrine "unless the very action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Rather, a right is clearly established when its unlawfulness is apparent in light of pre-existing law. Id. ¶33The law is clear that prisoners are entitled to adequate medical care. Estelle, 429 U.S. at 103. Ballesteros was sick for eight days, not working or eating while his condition deteriorated, and Allen repeatedly denied his requests for medical treatment. A reasonable officer would have known that continuing to ignore Ballesteros' requests was a violation of his right to adequate medical care. ¶34 Summary judgment for Allen was not warranted on the basis of qualified immunity.

CONCLUSION

¶35 For the foregoing reasons, we reverse and remand for further proceedings consistent with this decision.

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PATRICIA A. OROZCO, Judge
CONCURRING: ________
MAURICE PORTLEY, Presiding Judge
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RANDALL M. HOWE, Judge