Opinion
CV-21-1563-PHX-SRB (JFM)
02-08-2022
Dustin Henderson, Plaintiff v. C. Lopez, et al., Defendants.
REPORT AND RECOMMENDATION SCREENING FIRST AMENDED COMPLAINT
James F. Metcalf United States Magistrate Judge
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of screening of the amended plea is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. BACKGROUND
1. Original Complaint
On September 13, 2021, pro se Plaintiff Henderson, who is confined in the Arizona State Prison Complex in Buckeye, Arizona, filed his original Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. Plaintiff named as Defendants: Corrections Officer (CO) Lopez, Registered Nurses D. Mendoza and T. Marra, Nurse Practitioner Lillian Dauod, and psychiatrist, Dr. Stillwater (aka Stowater). Plaintiff asserted two claims, including: (1) Count 1 (denial of medical care re Hepatitis C (HCV)); and (2) Count 2 (denial of medical care re schizophrenia).
In an Order filed October 26, 2021 (Doc. 5), the Court granted Plaintiff's IFP application, screened the original Complaint, dismissed Counts I, and dismissed Defendants Mendoza, Marra, Lopez, and Dauod. Answers were directed from Defendant Stillwater to the allegation of Count II for failure to treat Plaintiff's schizophrenia.
Defendant Stillwater was served, and filed an Answer (Doc. 9), identifying her true identity as “Flora Stowater, NP.” (Doc. 9 at 1.)
Defendant's Answer purports to only respond “with respect to allegations on or after July 1, 2019.” (Doc. 9 at 1.) Plaintiff has not sought entry of default against Defendant Stowater with respect to acts before that date. But, the original Complaint provided no indication that Count II pertained to dates prior to July 1, 2019.
2. First Amended Complaint
On January 10, 2022, Plaintiff filed his Motion to Amend (Doc. 11), which was granted over Defendant Stillwater's objection. (Order 2/8/22, Doc. 19.) Consequently, Plaintiff's First Amended Complaint (Doc. 20) was filed on February 8, 2022. Plaintiff names as Defendants: (1) Grievance Coordinator Cynthia Lopez; (2) Director of Nursing Donna Mendoza; (3) Centurion Managed Care; and (4) Flora Stowater M.D.. Although he references actions by them, Plaintiff no longer names Dauod and Marra as defendants. Plaintiff continues to assert two claims, including: (1) Count 1 (denial of medical care for HCV); and (2) Count 2 (denial of medical care for schizophrenia). No service of or answer to the First Amended Complaint has been ordered, pending screening of the First Amended Complaint.
B. SCREENING OF FIRST AMENDED COMPLAINT
1. Screening Required
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune. Further, 28 U.S.C. § 1915A requires the Court to actively screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. The Court must dismiss a complaint or portion thereof if the 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). 42 U.S.C. § 1997e(c) applies the same standard to such complaints by prisoners/detainees even if the defendants are not governmental entities, or officers or employees of a governmental entity.
2. Pleading Standards
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.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678.
Reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
And, 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)).
3. Application to Amended Complaint
a. Count I - HCV
Plaintiff's Allegations
In Count I Plaintiff asserts a claim for denial of medical care. He alleges that on January 1, 2019 he entered Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) custody, and he either reported to staff he was concerned about having HCV and/or tested positive for HCV then or soon after. Medical staff enrolled him in the “Chronic Care Clinic, ” which resulted in six month blood draws to monitor his “levels.” Providers advise Plaintiff that “massive liver injury” would result in the elevation of the level of various enzymes. Throughout 2019, Plaintiff's enzyme levels increased. Providers had notice of these levels and injury to his liver. He was told that a ratio of enzyme levels to platelets would be used to evaluate him for referral to the “Hep-C Committee” for evaluation for treatment. He was further told that the committee's decision to treat was driven by the high costs of the available antiviral medications, and consideration would result in further delay. He alleges that those with advance liver damage & cirrhosis could have low ratio levels. He was told by providers that the ratios were an “exclusionary device” used to reduce costs and increase profits, and the providers hands were tied. Plaintiff's ratio levels were elevated, providing evidence of a severely damaged liver, and he repeatedly reported painful and debilitating symptoms (stomach cramps, pain, fatigue, lethargy, weakness, etc.) Providers continued to advise he could not be referred to the Hep-C Committee. These providers, including Ndemanu, Johnson, Demell, and Morales, reiterated these policies after Centurion became the healthcare vendor on July 1, 2019. Shinn became the director of ADCRR on October 16, 2019, with responsibility for healthcare.
Plaintiff sought treatment on March 16, 2021 and was told that monitoring blood levels was the only treatment provided until a patient presented with a certain stage of fibrosis. A medical professional has opined that monitoring blood levels does not qualify as treatment of HCV. Plaintiff's lab results on March 16, 2021 revealed Stage 2 fibrosis with “severe necroinflammatory activity”, evidence of a severely damaged liver.
In March or April, Plaintiff met with provider Dauod who said Plaintiff had to wait until he had Stage F3 fibrosis before his name would be submitted to the Hep-C Committee, and that Centurion relied on the Federal Bureau of Prisons (BOP) protocol for managing HCV, which is confirmed by ADCRR policy, but leave treatment decisions to Centurion. He alleges the BOP protocol directs treatment with medications of all HCV patients, with some inapplicable exceptions. Dauod submitted Plaintiff's name to the Hep-C Committee, who refused to consider treatment with the antivirals or older forms of medication. Dauod told Plaintiff this was based on the costs of the medications and he would have to wait until his fibrosis scores went up.
As a result, Centurion's Hep-C committee demonstrate callous disregard for Plaintiff's health. Various health policies call for treatment of all HCV patients, with or without fibrosis levels. Plaintiff had treatment options available to him. Centurion maintained a course of only monitoring blood levels rather than providing treatment. Defendants Lopez and Mendoza relied on Centurion/ADCRR policies to fail to take reasonable steps to address Plaintiff's pain and suffering. On May 25, 2021, Defendant Mendoza responded to a grievance that treatment was not available based on his stage of fibrosis. On June 16, 2021 Defendant Lopez responded similarly to his grievance appeal. Plaintiff argues Centurion is liable for the acts of its employees taken pursuant to its employees, specifically Mendoza.
By August 28, 2021, Plaintiff's labs provided evidence of disease progression. Rather than exercising medical judgment various Centurion providers made healthcare decisions based on Centurion's policies to cut costs and increase corporate profits. Centurion was provided a fund of $5.1m million to fund HCV treatment.
As a result of delaying Plaintiff's treatment until he had advanced Stage 3 fibrosis, not only were his pain and suffering prolonged, but the effectiveness of the medication was decreased and his disease was allowed to progress until he now has cirrhosis, with a risk of death from esophageal hemorrhage and liver failure, cancer, and a variety of other physical detriments.
He alleges Defendant Mendoza was deliberately indifferent to his serious medical needs for failing to refer him to the Hep-C Committee. He alleges Defendant Lopez was deliberately indifferent to his serious medical needs by failing to act on his grievance, and to forward his grievance to medical personnel, instead rendering a clinical decision she was not qualified to make as grievance coordinator.
Defendant Stowater's Objections
In opposing Plaintiff's Motion to Amend, Defendant Stowater argued (Doc. 15) that Plaintiff fails to allege more than a difference in medical opinion or delays in treatment. Indeed, the Court relied on Plaintiff's failure to show anything more than disagreement with the treatment decision to dismiss Count 1 in the original Complaint. (Order 10/26/21, Doc. 5 at 6.) Now, however, liberally construed Plaintiff's First Amended Complaint adequately alleges that the decisions to deny him treatment were not medical opinions, but deliberate decisions to deny treatment based solely on cost savings rather than an exercise of legitimate medical judgment.
Defendants rely on the oft-quoted maxim “that mere delays in treatment” aren't sufficient, citing Shapley v. Nev. Bd. Of State Prison Comm 'rs, 766 F.2d 404, 407 (9th Cir. 1985). But at some point, delay becomes a failure to treat. Indeed, Shapely opined: “Moreover, mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference; even if Shapley were aware that surgery had been recommended when he brought the first action, he would have had no claim for deliberate medical indifference unless the denial was harmful.” Id. Here, Plaintiff alleges the something “more”, i.e. significant harm from the delay, including diminished effectiveness of the medication, advancement of the disease, development of cirrhosis, etc.
Allegations of Suffering - In disposing of Count I in the original Complaint, the Court relied in part on Plaintiff's failure to “allege he is suffering any symptoms, including their severity and duration.” (Order 10/25/21, Doc. 5 at 6.) Plaintiff now details the advancement of his disease and symptoms over the course of the last 11 months.
Defendant Mendoza
In screening the original Complaint, the Court concluded that Plaintiff failed to show “that Mendoza acted with deliberate indifference when she responded to Plaintiff's informal resolution or to his grievance.” (Order 10/25/21, Doc. 5 at 6.) Now, however, Plaintiff alleges that Defendant Mendoza rejected his grievance and failed to refer him to the Hep-C Committee “for financial reasons, ” “pursuant to Centurion's illegal policies to deny, delay or limit needed treatment.” (FAC at ¶ 48, 77-78.)
Plaintiff adequately states a claim against Defendant Mendoza.
Defendant Lopez - The screening Order opined:
To the extent that Lopez responded to Plaintiff's informal resolution and grievance, Lopez was performing an administrative task. Plaintiff fails to allege facts to support that Lopez had any responsibility or authority concerning medical treatment. Plaintiff's contention that Lopez failed to refer his grievance appeal to the Director is without merit. Under Department Order 802, a prisoner may file a Formal Grievance if he is unable to resolve his complaint informally. The second and final step in the medical grievance process requires the prisoner to submit a formal grievance to the Contract Facility Health Administrator. That is, a grievance appeal to the Director is not required to exhaust medical grievances, which was presumably why Lopez did not refer Plaintiff's medical grievance appeal to the Director.(Order 10/26/21, Doc. 5 at 6.) Plaintiff's First Amended Complaint adds nothing avoid this conclusion. His argument that Lopez wrongly exercised medical judgment when she was not a medical professional supports the Court's conclusion. Nor does he offer anything to show the Court's conclusion that Lopez's actions reflected the proper handling of Plaintiff's grievance under DO 802, leaving it to Plaintiff to submit a formal grievance to the Facility Health Administrator.
Plaintiff again fails to adequately state a claim against Defendant Lopez.
Defendant Centurion - Plaintiff alleges that Defendant Centurion had adopted a policy of denying and delaying treatment for HCV as a cost saving measure, offering such treatment only when the HCV has progressed past the point that the medication is most effective and has caused substantial injury to the patient. Moreover, he alleges that Centurion has respondeat superior liability for the actions of its employees in refusing Plaintiff health care, including Mendoza, Daoud, etc.
The law in the Ninth Circuit is unclear whether a private contractor providing traditional government functions in a state (as opposed to municipal) facility is subject respondeat superior liability for employees' actions, or is subject to the limitations of Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978) (cannot be sued for an injury inflicted solely by its employees or agents, but only based on policy or custom). See Oyenik v. Corizon Health Inc., 696 Fed.Appx. 792, 794 and n. 1 (9th Cir. 2017).
Either way, Plaintiff adequately alleges both respondeat superior liability, and that the violation of his Eighth Amendment Rights resulted form adherence to a policy adopted by Centurion.
b. Count II - Schizophrenia
Plaintiff has adopted no significant changes to Count II, apart from changing the name of Defendant Stillwater to Defendant Stowater, alleging physical injury (as a result of suicide attempts) and adding various details. Plaintiff continues to adequately state a deliberate indifference to medical needs claim against Defendant Stowater arising from the failure to treat his schizophrenia with available medications.
4. Conclusions
Plaintiff now adequately states deliberate indifference to medical needs claims in Count I against Defendants Mendoza and Centurion, and in Count II against Defendant Stowater. Answer should be required from these Defendants. Plaintiff fails to adequately state a claim against Defendant Lopez, and this Defendant should be dismissed.
C. SERVICE
The undersigned will recommend answers as to various claims. In the interests of efficient administration, the undersigned will not recommend an order for service, but will instead defer such orders, which may be issued by the magistrate judge, until after a ruling on this Report & Recommendation.
D. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
E. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) Defendants Centurion and Mendoza be required to respond to the deliberate indifference to medical needs claim in Count I of the First Amended Complaint (Doc. 20).
(B) Defendant Stowater be required to respond to the deliberate indifference to medical needs claim in Count II of the First Amended Complaint (Doc. 20).
(C) Defendant Lopez be DISMISSED WITHOUT PREJUDICE