Opinion
CV 20-00201-PHX-MTL (DMF)
12-07-2021
Bruce J. Dent, Jr., Plaintiff, v. Corizon Incorporated, et al., Defendants.
ORDER
Michael T. Liburdi, United Slates District Judge.
Plaintiff Bruce J. Dent, Jr., who is currently confined in the Arizona State Prison Complex (ASPC)-Eyman in Florence, Arizona, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Defendant Assistant Facility Health Administrator (AFHA) Michael Delgado moves for summary judgment. (Doc. 49.) Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 51), and he opposes the Motion. (Doc. 57.) The Court will grant the Motion for Summary Judgment.
I. Background
In his First Amended Complaint, Plaintiff alleged that Defendant Delgado was aware of Plaintiffs chronic hand injury via Plaintiffs health needs requests (HNRs), Informal Complaints, Inmate Grievances, and via Delgado's personal review of Plaintiff s medical records, but Delgado made no effort to rectify the injury. (Doc. 12 at 4-7.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment deliberate indifference claim in Count One against Defendant Delgado and directed Delgado to answer this claim. (Doc. 13.) The Court dismissed the remaining claims and Defendants.
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 (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.
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 (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. 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. 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). . . . .
The court is mindful of the Ninth Circuit's overarching caution in this context that district courts are to “construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.2010). Thus, where it can readily identify which of Defendant's facts are in dispute, the Court will look to any clearly cited evidence or relevant first-hand allegations in Plaintiffs verified First Amended Complaint to determine if the dispute is genuine. 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). The Court will otherwise consider Defendant's supported facts undisputed. Plaintiff failed to comply with the Court's Rand Order and Local Rule of Civil Procedure 56.1(b), requiring that he file a separate statement of facts with numbered paragraphs corresponding to the numbered paragraphs in Defendants' Statement of Facts, stating whether he disputes those facts and citing to the specific, admissible portion of the record that supports his version of the facts. (See Doc. 51 at 2-3 (quoting LRCiv 56.1(b)).) Instead, he filed a combined “Response and Statement of Facts to Defendant's Motion for Summary Judgment” (Doc. 56), which contains only unnumbered, non-chronological paragraphs regarding his medical issues without reference to Defendants' facts. (Doc. 56.) He also filed “Plaintiffs Additional Supporting Facts in Response to Defendant's Motion for Summary Judgment” (Doc. 57), with paragraphs pertaining to Defendant's exhibits supplemented by facts from Plaintiffs own exhibits, often from different time frames and medical records that are also covered in Defendant's facts. (Doc. 111.) Plaintiffs failure to respond clearly to Defendant's facts makes it difficult for the Court to determine which, if any, of Defendant's facts are subject to genuine dispute.
On February 14, 2018, an Incident Command System (ICS) was called for a report that Plaintiff had injured his hand. (Doc. 50 (Def's Statement of Facts) ¶ 1.) According to Plaintiffs medical records, Plaintiff was working in the kitchen when he jumped and hit his hand on a warmer. (Doc. 50 at 11; Doc. 56 at 148.) He was seen by Registered Nurse (RN) Cynthia Marquez, reporting 10/10 pain. (Doc. 50 at 11.) Dr. Stewart evaluated the injury and ordered wrist x-rays and prescribed Ketorolac 30mg every evening for 5 days. (Id. at 12.) Plaintiffs x-ray results were normal, showing no evidence of “fracture, dislocation, or lytic or blastic lesions. All the digits, interspaces as well as the carpals, normal right hand.” (Id. at 23.)
The citation refers to the document and page number gen erated by the Court's Case Management/Electronic Case Filing system.
On February 20, 2018, Plaintiff was seen by Nurse Practitioner (NP) Burns for follow up on his hand. (Doc. 50 ¶ 3.) He reported continued pain, mostly between his right index and middle finger, and lack of flexion/extension. (Id.) Burns reviewed Plaintiffs x-rays and confirmed they were normal. (Id.) Plaintiff reported many past broken fingers and toes that had healed, and he reported that he was not currently working but requested light duty so that he would not lose his job. (Id.) Upon exam, Burns noted
R. 3rd digit sits flexed at 45 degrees and with attempted full extension (unable to extend finger at MCP beyond zero degrees) pain at dorsal portion of metacarpal bones between 3rd & 2nd & 4th digits; visible edema to R 3rd MCP and very tender to palp at MCP and slight tenderness to PIP [with] only about 30 degrees total ROM [range of motion] to R 3d digit and unable to flex MCP > 45 degrees d/t pain at MCP joint.(Doc. 50 at 28.) Burns assessed right hand “flexor tendon injury, partial tear vs laceration, sprain” and issued a special needs order (SNO) for no lifting, pushing, pulling, or running. (Id. at 30-31.) The plan was for an urgent hand CT, elevate hand as much as possible, ibuprofen as needed, and follow up in 4-5 weeks. (Id. at 31.) The same day, Burns requested an urgent radiology consult. (Id. at 33-35.)
On February 21, 2018, NP Burns' consult request was forwarded to the Utilization Management (UM) Team for review, and on February 22, 2018, the UM Team denied the request and opted for an alternative treatment plan (ATP), noting “[h]yperextension injuries of the MCP can typically be treat[ed] by immobilizing in 30 degrees of flexion for 2 to 3 weeks.” (Id. at 34, 36.)
On February 27, 2018, Plaintiff saw NP Burns for follow up, and he reported decreased swelling and pain but that he still lacked full range of motion to his right third digit. (Doc. 50 ¶ 5.) Upon evaluation, Burns assessed decrease in functional status with deficits that can be addressed by physical therapy. (Id.) She discussed the ATP, which was for Plaintiff to remain in an orthoglass splint and keep his hand immobilized, and she submitted a routine consultation request for physical therapy 2 times a week for 6 weeks. (Doc. 50 at 52.) Follow up was to occur in March to determine the plan of care and if the CT should be re-requested. (Doc. 50 ¶ 5.)
On March 13, 2018, Plaintiff was seen by NP Deringer, and he reported continued pain and decreased range of motion but was not taking his ibuprofen as directed. (Id. ¶ 6.) Upon examination, his right hand showed some swelling of the 2nd and 3rd proximal finger joints and decreased range of motion and strength. (Id.) Deringer ordered a new x-ray, provided hand/finger exercises, and emphasized to Plaintiff not to immobilize his hand and fingers at this point. (Id.) Derenger placed a routine priority consult request for Plaintiff to be evaluated by occupational therapy. (Id.) On March 14, 2018, Plaintiff had repeat x-rays, which were normal. (Id.)
On March 27, 2018, Plaintiff submitted an Inmate Informal Complaint Resolution, complaining about his ongoing hand issues, including that, on February 20, 2018, NP Burns requested a CT scan and placed him on 2-3 weeks of right-hand immobilization and light duty, but the CT scan was denied for another 2-3 weeks of immobilization. (Doc. 56 at 27.) Plaintiff stated that he had filed multiple HNRs for an MRI/CT scan and to see a hand specialist and claimed he needs reconstructive surgery because he is unable to fully extend his fingers, close and grip with his right hand, and is still in pain. (Id) As a resolution, he requested “a 2nd and 3rd opinion from outside hand-specialists.” (Id.)
On April 13, 2018, Plaintiff was seen at Industrial Hand Physical Therapy (IHPT) for evaluation. (Doc. 50 at 56.) Upon observation, Plaintiff was unable to fully straighten the fingers of his right hand and had limited motion at the wrist due to pain. (Id at 57.) The therapist noted that “MRI might be beneficial to rule out any tendon or ligament injuries that may require surgical intervention.” (Id. (emphasis in original).) At this visit, Plaintiff alleges he was “forced to endure excruciating pain, ” while gripping and twisting a rubber net, grinding rice in a bowl, and other exercises to stretch and force his fingers open, and the therapist advised him the pain was due to his long period of inactivity. (Doc. 12 at 7.) Plaintiff advised the therapist of a “snap” in his hand during one of the exercises. (Id.) The therapist recommended physical therapy 2 times a week for 6 weeks to improve muscle strength, ROM, flexibility, and muscle function and again wrote that Plaintiff “may benefit from follow up with a hand surgeon and a MRI to rule out any tendon or ligament issues that may require surgical intervention.” (Doc. 50 at 58.) Plaintiff was given a home exercise plan. (Id. at 60-61.)
On April 19, 2018, Plaintiff submitted an HNR, asking whether the PT doctor requested reconstructive surgery and wanting to know why he had to have physical therapy “when I'm just gonna [sic] have to get surgery anyways.” (Id at 63.)
On April 23, 2018, Plaintiff received a response to his March 27, 2018 Informal Complaint from the Assistant Director of Nursing (ADON) RN J. Todd, stating that “[t]he medical provider requested an outside consult during your last visit. This appointment was approved and has been scheduled.” (Doc. 56 at 28.)
It is not clear to which outside consult this Response refers. The Response is dated March 27, 2018, at which time Plaintiff had been scheduled for outside physical therapy, but Plaintiff claims he did not receive the Response until April 23, 2018. (Doc. 56 at 28.)
On April 24, 2018, Plaintiff was seen by NP Igwe, who noted Plaintiff had gone to physical therapy and that home exercises were recommended. (Doc. 50 ¶ 10.) Upon examination, Plaintiff had equal bilateral grip strength; used his hands effectively with no limitations or discomfort; was able to use his right hand to open his bag, pull out a CD, and open the CD cover; had good fine and gross motor movements; and had a protruding MCP with limited extension at the MCP joint, but otherwise no edema, erythema, open wound, or bruising. (Id.) Plaintiff was not taking his pain medications as prescribed. (Id.) Igwe prescribed Tylenol, and the plan was for Plaintiff to continue home exercises rather than offsite physical therapy, and Plaintiff was agreeable to this plan. (Id.)
On April 25, 2018, Plaintiff submitted a new Inmate Informal Complaint Resolution, requesting to see “an actual hand specialist, ” and stating that he was now required, per NP Igwe, to do PT for 16 weeks before a specialist would be recommended. (Doc. 56 at 32 (emphasis in original).) He questioned why he was sent to a physical therapist, not to a hand specialist, as stated in ADON Todd's previous response, and he requested to see a certified hand specialist so he could get on with desperately needed reconstructive surgery. (Id.)
On May 4, 2018, Plaintiff was assessed by Nurse Starling, and he again requested surgical intervention. (Id ¶ 10.) He reported that his PT exercises were painful, but he had no pain at rest. (Id.) Upon examination, Plaintiff was able to carry paperwork in both hands and unwrap and flex his right hand and extend his fingers-though not fully-with no wincing or guarding. (Id.) Plaintiff was advised to take his pain medications and that chronic pain post injury is not uncommon. (Id.)