Opinion
No. CV 21-00667-PHX-JAT (JZB)
2022-10-18
Victor Zhaquis JONES, Plaintiff, v. S. HENRY, et al., Defendants.
Ronald Jeffrey Washington, Jr., Law Office of Ronald Washington, Scottsdale, AZ, for Plaintiff. Patrick Joseph Boyle, Office of the Attorney General, Phoenix, AZ, for Defendant S. Henry. Danielle Nicole Chronister, Sarah Lynn Barnes, Broening Oberg Woods & Wilson PC, Phoenix, AZ, for Defendant Centurion of Arizona LLC.
Ronald Jeffrey Washington, Jr., Law Office of Ronald Washington, Scottsdale, AZ, for Plaintiff. Patrick Joseph Boyle, Office of the Attorney General, Phoenix, AZ, for Defendant S. Henry. Danielle Nicole Chronister, Sarah Lynn Barnes, Broening Oberg Woods & Wilson PC, Phoenix, AZ, for Defendant Centurion of Arizona LLC.
ORDER
James A. Teilborg, Senior United States District Judge
Plaintiff Victor Zhaquis Jones, who is represented by counsel, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 7.) Defendants move for summary judgment. (Docs. 25, 27.) Plaintiff has failed to respond, despite being granted an extension of the response deadline, and the time to do so has expired. (Doc. 30.)
The Court will grant the Motions for Summary Judgment and terminate the action.
I. First Amended Complaint
On screening Plaintiff's First Amended Complaint (Doc. 7) pursuant to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment excessive force claim against Defendant Deputy Warden Henry and an Eighth Amendment medical claim against Defendant Centurion and ordered them to answer these claims. (Doc. 8 at 7.) The Court also determined that Plaintiff stated an Eighth Amendment excessive force claim against unknown Defendant Doe, and gave Plaintiff 120 days to discover Defendant Doe's actual name and file a notice of substitution. (Id.)
Plaintiff failed to file a notice of substitution or seek an extension of time to substitute Defendant Doe's actual name. Accordingly, Defendant Doe will be dismissed from the action.
Plaintiff's claims arose while he was confined at the Arizona State Prison Complex (ASPC)-Eyman, Cook Unit. (Doc. 7 at 1.) In Count One, Plaintiff alleges Defendant Henry violated his Eighth Amendment rights when he ordered his officers to use excessive force on prisoners after a riot had already been quelled. Plaintiff claims that on November 25, 2020, between 5:30 p.m. and 9:30 p.m., there was a disturbance between and Cook Unit Staff "concerning an excessive force on a prisoner who refused to wear his COVID mask . . . ." (Doc. 7 at 3.) A large group of prisoners gathered to confront the officer and refused to comply with any orders. Plaintiff claims he was lying on his bunk in his dorm when he heard staff yell over the loudspeaker for all prisoners in the yard to immediately return to their dorms and lock down. (Id.) Plaintiff looked out of the window and saw Tactic Security Unit (TSU) officers "shooting off shock grenades that were exploding and Plaintiff saw tear gas canisters hitting the ground and giving off tear gas." (Id.) Plaintiff also saw Defendant Henry speak to the lead TSU Officer and then saw that officer order a group of TSU officers into a formation in the yard. (Id. at 4.) Plaintiff then saw Defendant Henry walk with the lead officer to the end of the formation and saw the officers "begin their March towards Building Eight (8) door entry." (Id.)
Plaintiff is currently confined at the ASPC-Eyman, Meadows Unit. See https://corrections.az.gov/public-resources/inmate-datasearch (Search inmate #322621) (last visited Sept. 13, 2022).
Plaintiff alleges that "minutes later," TSU officers rushed into his dorm, and the lead officer yelled to prisoners to "get off their bunks and for all inmates to line up in the middle of the dorm run." (Id.) Plaintiff and other prisoners complied. (Id.) The TSU officer began to give instructions for prisoners to line up and told the prisoners that if they made any sudden moves, gave any "back talk," or if the officers felt a prisoner was a threat to them, the prisoner would be thrown to the ground. (Id. at 5.) The officers informed prisoners that under Defendant Henry's authority, the officers could "use whatever force [was] needed for [inmates] to comply with . . . instructions." (Id.) Plaintiff alleges Defendant Henry "instructed and ordered the TSU officers and gave them his authority to use excessive force against him and other prisoners, in violation of Plaintiff's Eighth Amendment rights," and did so "maliciously and sadistically to cause him and other prisoners harm, which did happen to Plaintiff." (Id. at 6.) Plaintiff asserts Defendant Henry "personally participated in a deprivation of Plaintiff's constitutional rights, was aware of this deprivation and failed to act when his officers' action became too excessive." (Id.) Plaintiff claims that the force used by officers "was not applied in a good faith effort to maintain or restore order on the Cook Unit prison, this was unnecessary, for the riot was already quelled." (Id.)
In Count Three, Plaintiff alleges Defendant Centurion violated his Eighth Amendment rights by failing to provide adequate medical care after Plaintiff was assaulted by a TSU officer during the November 25, 2020 incident. After the assault, a nurse asked Plaintiff how he felt, and Plaintiff told the nurse he was in extreme pain and that "it felt like his shoulder blades were broken." (Id.) The nurse stated she could see "swollen shoulders and a large lump on his right shoulder, and that Plaintiff['s] face was swollen and that there [were] cuts on both his wrist[s]." (Id.) The nurse said Plaintiff's wrists were bleeding because his restraints were too tight. (Id.) Plaintiff claims the nurse was concerned about the swelling in his shoulder and back, and although Plaintiff needed medical treatment, none was available because Defendant Henry had ordered the rest of the medical staff to leave the unit. (Id.) The nurse told a TSU officer that Plaintiff needed to go to the hospital for his injuries, but that "due to [the] situation on the ground . . . it is Centurion of Arizona LLC policy that medical staff can put off treatment for 48 to 72 hours." (Id. 14-15.) The nurse told Plaintiff that if he started to cough up blood or have breathing difficulty, to have an officer contact the medical unit. (Id. at 15.) Plaintiff asked the nurse to inform Defendant Henry that he needed to go to the hospital and the nurse told him, "you do need treatment, but you can wait until the next day in the hopes that your condition doesn't worsen overnight." (Id.)
Plaintiff asserts his injuries were "so bad that he beg[a]n coughing up blood," and was bleeding from his nose, mouth and wrists. (Id.) At 1:00 am, Plaintiff told an officer he needed medical treatment, and the officer told him there were no medical staff on the unit until morning. (Id.)
Plaintiff claims Defendant Centurion violated his Eighth Amendment rights by not having sufficient staff present to examine Plaintiff until December 5, 2020, nearly 10 days after his injuries. (Id. at 16.) Plaintiff alleges Centurion's policies also "allowed the nurse on November 25, 2020, to deny and delay Plaintiff's medical treatment due to riot situation on that date" and that as a result, Plaintiff suffered permanent injuries. (Id. at 17.) Plaintiff further claims he requested x-rays and MRIs, "and was denied initially." (Id.) Plaintiff claims he has suffered trauma symptoms such as nightmares and flashbacks, but Centurion's staff "denied treatment, therapy or coping skills." (Id.)
Defendant Henry moves for summary judgment on the grounds that Plaintiff failed to exhaust his claim in Count One and that Defendant Henry did not violate Plaintiff's Eighth Amendment rights. (Doc. 27.) Defendant Centurion moves for summary judgment on the ground that it provided Plaintiff appropriate medical treatment. (Doc. 25.)
Because Plaintiff failed to file a response or controverting statement of facts, the Court will consider Defendants' facts undisputed unless they are clearly controverted by Plaintiff's first-hand allegations in the verified First Amended Complaint or other evidence on the record. Where the nonmovant is a pro se litigant, the Court must consider as evidence in opposition to summary judgment all the nonmovant's contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
II. Summary Judgment Standard
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 88 S.Ct. 1575, 20 L.Ed.2d 569 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255, 106 S.Ct. 2505. 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).
III. Exhaustion
A. Legal Standard
Under the Prison Litigation Reform Act (PLRA), a prisoner must exhaust "available" administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
The defendant bears the initial burden to show that there was an available administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must demonstrate that applicable relief remained available in the grievance process). Once that showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in fact, exhausted administrative remedies or "come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino, 747 F.3d at 1172. The ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a).
If summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted administrative remedies, that administrative remedies were not available, or that the failure to exhaust administrative remedies should be excused, the case proceeds to the merits. Id. at 1171.
B. Relevant Facts
Department Order 802 ("DO 802"), Inmate Grievance Procedure, (eff. Oct. 16, 2016) governs the ADC's administrative grievance procedure. (Doc. 28 (Def. Henry's Statement of Facts) ¶ 1.) ADC has adopted DO 802 to address prisoners' complaints regarding their conditions of confinement. (Id. ¶ 2.) Prisoners receive a written and oral explanation of the Inmate Grievance Procedure at Reception Centers Intake and as part of the orientation process in any subsequent facility. (Id. ¶ 10.)
Pursuant to DO 802, prisoners must first attempt to resolve their complaints through informal means, such as discussing the issue with staff or submitting an Inmate Informal Complaint Resolution Form to their unit Correctional Officer (CO) III. (Id. ¶¶ 11-12.) If the prisoner is unable to resolve the issue informally, the prisoner may submit a Formal Grievance to the unit CO IV Grievance Coordinator, who will log the grievance and forward it to the Deputy Warden for response. (Id. ¶¶ 15, 19, 20.)
If the prisoner is not satisfied with the Deputy Warden's response, the prisoner may appeal to the ADC Director. (Id. ¶¶ 21, 22, 24.) The Director's decision is final and constitutes completion of the grievance process. (Id. ¶ 25.)
If a prisoner does not receive a timely response from the designated prison official at any point during the grievance process, the prisoner may proceed to the next stage of the grievance process the day after the response was due. (Id. ¶ 5.)
At the request of the Office of the Arizona Attorney General, Janah Barreras reviewed the non-medical grievance appeal log, and files at the ADC's Central Office, and searched for any formal non-medical grievance appeals submitted to the Director's level by Plaintiff, between January 2020 through May 2021. (Id. ¶ 30.) Barreras' job duties include responding to and tracking grievance appeals to the ADC Director, as well as maintaining a computerized Inmate Grievance Appeal Log of such appeals. (Id. ¶ 31.) The log is maintained at ADC's Central Office in numerical order, and is also accessible by grievance case number and by prisoner name and number. (Id.)
Barreras found no grievance appeal entries in the ADC Central Office Grievance Appeal Log to evidence that Plaintiff, made any grievance appeals between January 2020 through May 2021, concerning his allegations that prison officials used excessive force on November 25, 2020. (Id. ¶ 32.) Barreras found only one grievance appeal from Plaintiff in all of the ADC Central Office grievance records, Grievance case #20-022367, which was initiated by Plaintiff on September 12, 2020 and alleged staff harassment. (Id. ¶ 33.) This grievance was initiated prior to the November 25, 2020 incident which forms the basis of Plaintiff's claims in this action, and it does not contain any allegations of excessive force. (Id. ¶ 34.)
In his First Amended Complaint, Plaintiff checked the boxes indicating that an administrative remedy was available to him, that he submitted a request for administrative relief regarding his claim against Defendant Henry, and that he appealed his request for administrative relief to the highest level. (Doc. 7 at 3.)
C. Discussion
Defendant Henry has met its initial burden at summary judgment of showing that there was an administrative remedy available to Plaintiff at ASPC-Eyman as outlined in DO 802 and that Plaintiff did not complete this process with regard to his claim in Count One. Accordingly, the burden shifts to Plaintiff to either show that he exhausted the available remedies or that the remedy was effectively unavailable to her. Albino, 747 F.3d at 1172. The facts in the record do no support either finding.
Plaintiff did not provide a separate or controverting statement of facts, and the scant evidence concerning exhaustion available in the verified First Amended Complaint fails to create a genuine issue of material fact that he, in fact, exhausted his administrative remedies. Merely filling in the boxes on the form complaint to indicate that he grieved his claim against Defendant Henry is insufficient.
Because Plaintiff has failed to rebut Defendant's evidence that he did not exhaust the available administrative remedies, and has not presented competent evidence that the administrative remedy was unavailable to him, the Court will grant summary judgment to Defendant Henry and dismiss Plaintiff's Eighth Amendment claim in Count One without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (If a court grants summary judgment on non-exhaustion grounds, dismissal is without prejudice).
IV. Medical Claim
A. Legal Standard
To prevail on a claim against Corizon as a private entity serving a traditional public function, Plaintiff must meet the test articulated in Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state law). Accordingly, Plaintiff must show that an official policy or custom caused the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018. To make this showing, he must demonstrate that (1) he was deprived of a constitutional right; (2) Corizon had a policy or custom; (3) the policy or custom amounted to deliberate indifference to Plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). Further, if the policy or custom in question is an unwritten one, the plaintiff must show that it is so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
To succeed on an Eighth Amendment medical claim, a prisoner must demonstrate that a defendant acted with "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, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). There are two prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 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). Examples of a serious medical need 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." McGuckin, 974 F.2d at 1059-60.
Second, a prisoner must show that the defendant's response to that need was deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference if he "knows of and disregards an excessive risk to inmate health or safety; to satisfy the knowledge component, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "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), or when they fail to respond to a prisoner's pain or possible medical need. Jett, 439 F.3d at 1096. Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835, 114 S.Ct. 1970. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 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, 97 S.Ct. 285.
Finally, 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 v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing medical treatment does not constitute Eighth Amendment violation unless delay was harmful).
B. Relevant Facts
On November 25, 2020, at approximately 8:00pm, Plaintiff was evaluated by Site Medical Director Dr. Rodney Stuart. (Doc. 26 (Def. Centurion's Statement of Facts) ¶ 1.) Dr. Stewart noted Plaintiff was awake without any apparent injury to his head and noted a left shoulder distortion with significant pain. (Id. ¶ 2.) Plaintiff told Dr. Stewart he hurt his left shoulder 1-2 weeks prior, but that his arm became worse when he was assisted to his feet after the riot. (Id. ¶ 3.) Dr. Stewart sent Plaintiff to the Emergency Department at Chandler Regional Medical Center where his left shoulder was evaluated. (Id. ¶ 5.) Plaintiff was discharged from the hospital on November 26, 2020. (Doc. 26-1 at 12 (Def.'s Ex. B).) During his hospital stay, Plaintiff underwent a cervical spine CT scan, a head CT scan, and left shoulder x-rays. (Id. at 13.) Plaintiff was instructed to follow up with his usual provider if his symptoms worsened. (Id. at 14.)
Plaintiff returned from the hospital on November 26, 2020. (Doc. 26 ¶ 6.) Upon his return to prison, Plaintiff was evaluated by Eva Paez, LPN. (Id.) Plaintiff reported discomfort in his left shoulder and denied any additional pain or discomfort. (Id.) Paez prescribed 600mg Ibuprofen for Plaintiff's reported discomfort and noted Plaintiff's understanding of the hospital instructions to rest his shoulder. (Id.)
On December 19, 2020, Plaintiff followed up with Kendra Avant-Ortiz, NP. (Id. ¶ 7.) Plaintiff reported a "left shoulder injury that occurred while exercising" and that when he was cuffed behind his back during the riot incident, it made his shoulder hurt worse. (Id. ¶ 8.) NP Avant-Ortiz noted that the exams and imaging performed at Chandler Regional were negative. (Id.) Plaintiff still had a prescription for 600mg Ibuprofen that was valid through December 26, 2020. (Doc. 26-1 at 31 (Def.'s Ex. D).) Plaintiff was shown range of motion exercises for the shoulder, and NP Avant-Ortiz ordered a rheumatoid panel to see if Plaintiff's shoulder issues were due to rheumatoid arthritis. (Doc. 26 ¶ 9.)
The hospital reports from Plaintiff's cervical spine CT scan, head CT scan, and left shoulder x-rays were not provided.
On January 5, 2021, Plaintiff followed up with Siji Thomas, NP, where he reported 9/10 shoulder pain. (Id. ¶ 10.) NP Thomas noted a number of possible shoulder injuries including rotator cuff injury, labral tear, tendon rupture, supraspinatus tendinitis, shoulder dislocation, humerus fracture, and AC separation. (Id. ¶ 11.) She ordered x-rays of the left shoulder and left humerus, both of which were taken on the same day. (Id.) The x-rays showed a normal left shoulder with no separation, fracture or dislocation and no acute osseous abnormality or fracture of the humerus. (Id. ¶ 12.) On the same day, NP Thomas also submitted a request for an urgent MRI, which was approved and scheduled for January 19, 2021. (Id. ¶ 13.) Plaintiff signed a refusal for the MRI appointment. (Id. ¶ 14.)
On April 8, 2021, Plaintiff requested to have the MRI rescheduled, and the MRI was completed on April 30, 2021. (Id. ¶ 15.) The MRI showed fraying and partial thickness tearing at the chondral labral junction posteriorly but no dominant labral tear or detachment, mild supraspinatus and infraspinatus insertional tendinopathy without tearing, and mild inflammation in the overlying subacromial subdeltoid bursa. (Id. ¶ 16.) On May 24, 2021, NP Thomas discussed the MRI report with Dr. Stewart. (Id. ¶ 17.) They decided to discuss the plan of conservative care with Plaintiff on May 28, 2021. (Id.) However, Plaintiff refused to attend the follow up appointment to discuss his plan of care. (Id.)
On September 28, 2021, Plaintiff was seen to discuss future treatment for his left shoulder after he submitted a Health Needs Request ("HNR") for a work restriction. (Id. ¶ 18.)
On October 10, 2021, Plaintiff was seen by NP Gay who ordered a physical therapy consult. (Id. ¶ 19.)
On November 4, 2021, the physical therapist noted Plaintiff reported that his mobility and function had "mostly returned" with mild residual symptoms; Plaintiff was provided with a home exercise program, and he was expected to make progress performing these exercises independently. (Id. ¶ 20.) No additional physical therapy was recommended. (Id. ¶ 21.)
Plaintiff has not submitted any HNRs since September 2021 regarding his left shoulder and has not received any additional follow-up treatment to date. (Id. ¶ 22.)
C. Discussion
To prevail on a claim against Centurion as a private entity serving a traditional public function, Plaintiff must meet the test articulated in Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state law). Accordingly, Plaintiff must show that an official policy or custom caused the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018. To make this showing, he must demonstrate that (1) he was deprived of a constitutional right; (2) Corizon had a policy or custom; (3) the policy or custom amounted to deliberate indifference to Plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). Further, if the policy or custom in question is an unwritten one, the plaintiff must show that it is so "persistent and widespread" that it constitutes a "permanent and well settled" practice. Monell, 436 U.S. at 691, 98 S.Ct. 2018 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). "Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
On this record, the facts do not show that Plaintiff suffered a constitutional violation. Plaintiff asserts that after he was injured during the riot, he did not receive any medical treatment, and prison staff refused to send him to the hospital despite his need for medical care. Normally, the Court must construe these facts in Plaintiff's favor, but here, where Plaintiff's assertions are clearly contradicted by evidence showing that he was examined by Site Medical Director Dr. Stewart after the riot and that Plaintiff was sent to the emergency room that same day, the Court will not accept Plaintiff's "blatantly contradicted" facts as true. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
Plaintiff's medical records show that on the day of the riot, he was examined at the prison and then promptly sent to the hospital where he underwent a cervical spine CT scan, a head CT scan, and left shoulder x-rays, which were all negative. After being discharged from the hospital, he was prescribed ibuprofen to manage his pain, and he subsequently underwent further testing including a rheumatoid panel to test for arthritis, a left shoulder MRI, and additional left shoulder x-rays. Based on his MRI results, Plaintiff was sent to physical therapy, where he was prescribed a home exercise program. These facts do not support a deliberate disregard of Plaintiff's serious medical need.
Centurion has presented evidence that Plaintiff received appropriate medical treatment for his injury, and Plaintiff has not refuted this evidence. Accordingly, Plaintiff's claim against Centurion fails on the first Monell element, and his claim must be dismissed.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motions for Summary Judgment (Docs. 25, 27).
(2) Defendant Henry's Motion for Summary Judgment (Doc. 27) is granted, and Defendant Henry and the Eighth Amendment claim in Count One are dismissed without prejudice for failure to exhaust the available administrative remedy.
(3) Defendant Centurion's Motion for Summary Judgment (Doc. 25) is granted, and Centurion and the Eighth Amendment claim in Count Three are dismissed with prejudice.
(4) Defendant Doe is dismissed for failure to substitute and timely serve.
(5) There being no claims remaining, the Clerk of Court must terminate the action and enter judgment accordingly.