Opinion
CV-23-00745-PHX-MTL (JFM)
07-29-2024
Steven O. Nelson, Plaintiff, v. Siji Thomas, et al., Defendants.
ORDER
Michael T. Libuidi United Slates District Judge
Plaintiff Steven O. Nelson, who is currently confined in the Arizona State Prison Complex-Eyman, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Defendants move for summary judgment. (Doc. 66.) 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. 68), and he did not file a response.
Plaintiff filed a “Motion for Settlement Conference,” requesting that the Court deny Defendants' Motion for Summary Judgment and “move to a settlement conf[erence].” (Doc. 69.) Despite the Court's Rand Order, that Motion did not include any substantive discussion relating to the Motion for Summary Judgment.
I. Background
On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care claims against Defendants Nurse Practitioner (NP) Thomas, NP Adams, and Dr. Stewart, in their individual capacities, in Counts One, Two, and Three, against Defendants Arizona Department of Corrections (ADC) Director Thornell and Arizona Governor Hobbs, in their official capacities, in Counts Five and Six, and against Defendant NaphCare, Inc. in Count Four. (Doc. 6.)
In his Complaint, Plaintiff alleged as follows. In January 2022, Defendant NP Thomas diagnosed Plaintiff with extreme dermatitis, which caused open wounds on his legs. Although Thomas told Plaintiff that he needed an emergency visit to the dermatologist, and Plaintiff continued to have bleeding from his open wounds, he received no treatment for 5 months. When Plaintiff saw Defendant Thomas again in May 2022, she refused to send him to a dermatologist, and gave him wax medications to apply to his legs, which calmed the burning sensation, but did not heal the open wounds or treat the pain and swelling, which caused Plaintiff to need the use of a walker to travel long distances.
In July 2022, Plaintiff told Defendant Thomas that he needed new medical tennis shoes because his prior shoes were destroyed in the front from dragging his feet due to the wounds on his legs. Plaintiff reported that the holes in the shoes allowed dirt in and he had bleeding on his toes. Defendant Thomas told Plaintiff she would order new medical tennis shoes, but he should wear his shower shoes to medical appointments and the dining hall, and gave him a 10-day-lay-in tray, so he could heal.
In September 2022, Plaintiff submitted a Health Needs Request (HNR) again requesting treatment of his legs, a Specials Needs Order (SNO) for one-year lay-in tray, and a SNO to be allowed to wear his medical shoes to off-site medical treatments and evaluations, but Defendant Thomas denied Plaintiff's SNO requests.
Also in September 2022, Plaintiff was diagnosed with two ruptured discs in his back, which were caused by Plaintiff dragging his feet on the ground. Defendant Thomas told Plaintiff to stop dragging his feet but offered no other treatment for his back or ruptured discs or the open wounds on his legs.
In December 2022 and January 2023, Plaintiff's feet became infected because his medical tennis shoes had never been replaced.
In January 2023, Defendant NP Adams replaced Defendant Thomas as the medical provider in Plaintiff's unit. In late January 2023, Plaintiff met with Adams, who refused to treat plaintiff's leg wounds, back ruptures, and told him he would receive his medical tennis shoes in August. Adams offered him aspirin for the pain caused by his ruptured discs and told him to buy his own bandages and medications from the inmate store to treat his open wounds.
Between January 1 and October 1, 2022, Defendant Dr. Stewart denied Plaintiff's requests for outside medical treatment and medication for his dermatitis. Defendant Thomas told Plaintiff that Defendant Stewart told her to use “alternate treatment” for Plaintiff's medical conditions from January to October 1, 2022. During this period, Plaintiff talked with Defendant Stewart about his medical conditions and medical tennis shoes, Defendant Stewart said that he would “check into” Plaintiff's complaint, but Defendant Stewart never resolved Plaintiff's medical issues. On April 10, 2023, Plaintiff spoke with Defendant Stewart and asked why he was being denied medical treatment. Defendant Stewart told Plaintiff that he “shouldn't feel like he's being single[d] out” and that Defendant Stewart and the medical staff were following Defendant NaphCare's policies in treating certain medical conditions. Defendant Stewart explained that he had to follow ADC's medical policies and that Plaintiff would “have to wait his turn just like the other inmates who have wors[e] medical condition[s].” Defendant Stewart told Plaintiff that he was aware of Plaintiff's medical condition, Plaintiff needed to follow Defendant Adams's directions, and he would “follow-up shortly on Plaintiff[']s medical issues.” Defendant Stewart never followed up.
Plaintiff further alleges that the delays and denials in his medical treatment were due to medical staff using the length of his sentence to determine his priority and because he is serving a life sentence, he is given lower priority than other prisoners serving shorter sentences. Plaintiff alleged that Defendants Thornell and Hobbs were aware of these policies and delays and denials of medical treatment and did not act to prevent them.
Defendants assert that they are entitled to summary judgment on Plaintiff's claims.
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).
Because Plaintiff did not file a response or controverting statement of facts, the Court considers Defendants' supported facts undisputed unless they are clearly controverted by Plaintiff's first-hand allegations in the verified Complaint or other record evidence. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
On December 17, 2019, Plaintiff had an MRI of his lumbar spine ordered by Defendant NP Thomas. (Doc. 26-3 at 7.) The MRI showed mild curvature lumbar spine with straightening normal lordosis and mild to marked multilevel disc degeneration greatest affecting the level of L5-S1, mild central canal, moderate right and mild left foraminal stenosis at ¶ 4-5, and disc extrusion, endplate spurring and facet arthrosis resulting in mild to moderate central canal, marked left greater than right lateral recess and moderate bilateral foraminal stenosis at ¶ 5-S1. (Doc. 26-3 at 8.)
Centurion was the healthcare provider for the Arizona Department of Corrections, Rehabilitation, and Reentry (ADC) between July 1, 2019 and September 30, 2022. (Doc. 67 ¶ 2.) Defendant NaphCare then became the medical provider for the ADC. (Id.)
On January 10, 2020, Plaintiff saw Defendant NP Thomas for a scheduled sick call.It was noted that Plaintiff has a medical history of low back pain, foot drop, polyneuropathy and eczema. (Doc. 67 at 32.) Plaintiff reported that he needed eczema lotion for itchy eczema on his face, arms, and legs. (Id.) On exam, NP Thomas noted that Plaintiff had “erythematous popular lesions bilateral legs dry and irritated.” (Id.) NP Thomas assessed atopic dermatitis, and prescribed Aveeno eczema therapy twice per day. (Id. at 35.) NP Thomas advised Plaintiff to return to clinic as needed. (Id.)
Defendants did not provide records of the HNRs leading to the scheduled sick calls.
On January 13, 2020, Plaintiff again saw Defendant Thomas for a scheduled sick call for renewal of his SNOs and follow-up on MRI results. (Id. at 37.) Thomas noted that the MRI of Plaintiff's lumbar spine showed “mild to moderate multilevel degenerative disc disease facet arthrosis and foraminal stenosis.” (Id.) Plaintiff reported that he continued to have pain in his lower back into his legs, relieved when he lays down and keeps his legs up, and that pain has been ongoing since 2006. (Id.) On exam, Thomas observed spinal tenderness in the lumbar spine, with a positive straight leg raise at 70 degree, and a positive Patrick test. (Id.) Thomas noted deep tendon reflexes 3+ hyperactive, sensory deficit in the bilateral lower extremities, abnormal gait with heel strike, and abnormal tandem gait. (Id.) NP Thomas assessed possible degenerative disc disease in the lumbar spine and recommended a follow-up MRI. (Id.) NP Thomas noted that Naproxen would be continued for pain and advised stretching and back strengthening exercises. (Id.)
On May 14, 2020, Plaintiff saw Defendant Thomas and requested medical shoes. (Id. at 42.) Thomas noted that Plaintiff had a history of low back pain, foot drop from nerve damage in his feet, and polyneuropathy. (Id.) She noted that Plaintiff uses ankle-foot orthoses to support his feet. (Id.) Thomas noted that she ordered Plaintiff's medical shoes. (Id.)
On June 2, 2020, Plaintiff saw Defendant Thomas for a raised skin growth on the right inner butt check. (Id. at 46.) Defendant Thomas removed the growth and sent it to the lab. (Id. at 49.)
On July 29, 2020, Plaintiff was seen by Defendant Thomas for a follow-up appointment. Thomas noted Plaintiff's requests for medical chair, mattress, shoes, and to not use ADA van for transport, as it makes him sick and he passes out. (Id. at 51.) NP Thomas noted that Plaintiff's MRI of the lumbar spine showed mild to moderate degenerative joint disease and foraminal stenosis and noted that Plaintiff could walk with minimal assistance and with a drag of his right foot. (Id.) Plaintiff received a limited exam. (Id.) NP Thomas assessed a differential diagnosis of degenerative disc disease vs. lumbar radiculopathy, and assessed polyneuropathy, and foot drop. (Id. at 54.) NP Thomas stated that Plaintiff's medical diagnoses do not qualify him for an extra mattress, chair, or shoes, and she exempted him from the ADA van. (Id. at 54.) She further advised him to follow-up with optometry to get orders for sunglasses. (Id.)
On November 14, 2020, Thomas issued one-year SNOs for a rubber tipped cane, lower bunk, and limited duty. (Id. at 59.)
The medical record supporting why these SNOs were issued was not provided to the Court.
On January 13, 2021, Plaintiff saw NP Thomas for a scheduled sick call and reported getting sharp 10/10 pains in the center of his back for a few months. (Id. at 60.) He again requested medical shoes. (Id.) On exam, there was spinal tenderness in the lumbar spine, positive straight leg raise at 60 degree angle bilaterally, a positive Patrick test bilaterally, and deep tendon reflexes 2+. (Id. at 60.) NP Thomas assessed a differential diagnosis of possible herniated disc vs. spinal stenosis vs. degenerative disc disease and assessed foot drop and polyneuropathy. (Id. at 62.) NP Thomas prescribed a Salonpas pain patch twice per day, and advised stretching, back strengthening exercises, and rest. (Id. at 63.) Thomas noted that medical shoes, insoles and ankle-foot orthoses were ordered. (Id.)
On May 17, 2021, Plaintiff saw NP Thomas for a follow-up on his blood pressure, which was 146/82. (Id. at 65.) NP Thomas prescribed blood pressure medication and added Plaintiff to chronic care line for follow-up. (Id. at 68.)
On June 4, 2021, Plaintiff saw NP Thomas and requested absorbase for eczema and more Salonpas patches for back pain. (Id. at 70.) Plaintiff reported his pain as 3 of 10. (Id.) NP Thomas renewed Plaintiff's absorbase and continued Naproxen, but refused Plaintiff's request for Salonpas patches, stating “clinical necessity not met.” (Id. at 73.)
On July 29, 2021, Plaintiff saw NP Thomas for a scheduled sick call and reported swelling in his ankles since starting blood pressure medication and said that he stopped taking the blood pressure medication. (Id. at 80.) His blood pressure was 128/84. On exam, NP Thomas noted right ankle +1 edematous. (Id. at 80.) NP Thomas made a differential diagnosis of possible peripheral edema from medication vs. vascular insufficiency vs. congestive heart failure vs. renal disease vs. liver disease. (Id. at 82.) Thomas discontinued Plaintiff's blood pressure medication and ordered him a new blood pressure medication and told him to elevate extremities if they are swollen. (Id. at 83.)
On August 12, 2021, Plaintiff saw NP Thomas for a scheduled sick call to renew his Naproxen for his back pain and reported his back pain as 4/10. (Id. at 85.) NP Thomas renewed Plaintiff's Naproxen. (Id. at 88.)
On October 12, 2021, Plaintiff saw NP Thomas complaining his foot drop is worse, he is having back pain, and he asked for a rescue inhaler. (Id. at 90.) NP Thomas noted that Plaintiff's MRI showed herniated disc, pinched nerve, and scoliosis. (Id.) Plaintiff reported his pain as 3/10 and stated that when he wakes up, his calves are cramped and he has pain going down both legs and weakness in both legs, and sometimes has tingling in his feet. (Id.) Plaintiff reported that Naproxen only helps a little. (Id.) On exam, Plaintiff's straight leg raise was positive at 30 on right and 50 on left, he had a positive Patrick test bilaterally. (Id.) NP Thomas assessed a differential diagnosis of degenerative disc disease vs. herniated disc vs. spinal stenosis vs. scoliosis. (Id. at 92.) Thomas continued Naproxen and prescribed alpha lipoic acid 600 mg twice per day and noted “clinical necessity not met for Neurosurgery referral as patient requesting.” (Id. at 93.)
On October 29, 2021, Plaintiff saw NP Thomas for a scheduled sick call and requested a walker instead of a wheelchair and to renew his SNOs; he explained that he uses the wheelchair mostly for stability when he walks, and although he can walk, he needs something to sit on after walking long distances since he gets tired. (Id. at 95.) NP Thomas discontinued Plaintiff's wheelchair and walker, writing “criteria not met for continued use of wheelchair or walker. Inmate may use cane for stability.” (Id. at 98.)
On December 7, 2021, Plaintiff saw NP Thomas for a scheduled sick call and reported cold symptoms. (Id. at 100.) NP Thomas advised rest, fluids, and nutrition and prescribed cold medicine. (Id.)
On January 10, 2022, Plaintiff saw NP Thomas to follow-up on labs and a walker, reporting that when he walks, he cannot pick up his feet. (Id. at 105.) Plaintiff reported that when he wakes, his calves are cramped, and his foot will not be touching the floor on the heel and he has to push down on his knee to bring his foot down so that the heel touches the floor. (Id.) Plaintiff also reported back pain; NP Thomas noted that Plaintiff's MRI of the lumbar spine showed central canal stenosis, facet arthroses and foraminal stenosis, straightening of the lumbar lordosis, and degenerative disc disease. (Id.) Plaintiff reported pain of 2/10. (Id.) On exam, Plaintiff's straight leg raise was positive at 35 degrees bilaterally, he had hyperreflexia with Babinski reflex, and he had a positive Romberg test. (Id.) Plaintiff's labs also showed a vitamin B12 deficiency. (Id.) NP Thomas assessed a differential diagnosis of possible cerebellar ataxia vs. MS vs. lumbar radiculopathy vs. spinal stenosis vs. herniated disc vs. degenerative disc diseases vs. complication from nerve conduction velocity studies. (Id. at 109.) NP Thomas ordered a 4-wheel walker with brakes and noted she would discuss with Defendant Dr. Stewart whether further imaging was needed. (Id.) NP Thomas also ordered monthly Vitamin B12 injections. (Id. at 108.)
On January 11, 2022, NP Thomas placed a request for an MRI of the cervical spine after discussing Plaintiff with Dr. Stewart. (Id. at 201.)
On January 27, 2022, Plaintiff saw NP Thomas for a scheduled sick call complaining of right shoulder pain, trouble breathing, and a cold sore; Plaintiff reported his shoulder pain as 4/10 with pain increasing with “every movement” and reported that Naproxen was not helping. (Id. at 111.) On exam, Plaintiff showed point tenderness in the glenohumeral joint and a painful arc test was positive. (Id.) NP Thomas assessed a differential diagnosis of degenerative disc disease vs supraspinatus tendinitis vs adhesive capsulitis vs rotator cuff impingement syndrome. (Id. at 113.) NP Thomas prescribed Voltaren gel for pain. (Id.)
A notation in Plaintiff's records indicates that on February 14, 2022, Plaintiff had an MRI of the lumbar spine. (Id. at 202.)
The medical record documenting this MRI and the results of this MRI were not provided to the Court.
On March 23, 2022, Plaintiff saw NP Thomas requesting medical shoes because his shoes are old and wearing out. (Id. at 123.) NP Thomas included no plan of care, merely noting Plaintiff's request and writing that his medical needs are “known.” (Id.) NP Thomas avers that she submitted a request for new shoes and that she also requested ankle-foot orthoses. (Id. at 209 ¶ 12.)
On April 7, 2022, Plaintiff saw NP Thomas for a scheduled sick call again complaining of right shoulder pain of 4/10 and 5-6/10 when he moves; Plaintiff reported that Naproxen does not “really” help. (Id. at 129.) NP Thomas noted that Plaintiff's x-ray of his right shoulder shows degenerative disc disease. (Id.) NP Thomas assessed possible degenerative disc disease of the right shoulder vs. supraspinatus tendinitis. (Id.) NP Thomas discontinued Plaintiff's Naproxen and ordered Meloxicam, and “advised to continue shoulder rehab.” (Id.)
The medical record of this x-ray was not included in the medical records provided to the Court.
On May 2, 2022, Plaintiff saw NP Thomas regarding mouth sores unrelated to his claims in this action. (Doc. 67 at 139.)
On May 6, 2022, Plaintiff saw NP Thomas for a scheduled sick call complaining of back and foot pain and requesting medical renewal. (Id. at 141.) Plaintiff reported his pain as 5/10 radiating from lower back to right gluteus and numbness and tingling in his feet. (Id.) Plaintiff reported that Naproxen helps to some extent. (Id.) On exam, Plaintiff's straight leg raise was positive at 35 degrees bilaterally, sensory impairment was noted in the legs and feet, Plaintiff had limited dorsi flexion, and showed hyperreflexia with Babinski reflex, and a positive Romberg test. (Id.) NP Thomas noted a differential diagnosis of degenerative disc diseases vs. herniated disc vs. spinal stenosis, discontinued Plaintiff's Meloxicam, re-prescribed Naproxen, and “advised stretching and back strengthening exercises.” (Id. at 146.)
It is not explained how Plaintiff was still taking Naproxen while the medical records reflect that Naproxen was previously discontinued.
On May 25, 2022, Plaintiff saw NP Thomas for a scheduled sick call regarding three HNRs he submitted explaining that security wants him to wear a lanyard, but he cannot wear anything around his neck due to a traumatic experience as a child. (Id. at 147.) Plaintiff also reported some incidences of heartburn, midsternal pain, nausea, dizzy spells, difficulty swallowing, and hoarse voice. (Id.) Plaintiff was given a prescription for acid reflux, told to avoid spicy food, chocolate, and mint, and was given a SNO to avoid wearing a lanyard around his neck. (Id. at 152.)
On June 1, 2022, Plaintiff saw NP Thomas after an Incident Command Systemwas called 2 weeks earlier when Plaintiff collapsed to the ground and was weak for a couple of hours; Plaintiff reported daily chest pain 10/10 and that he still feels weak, and that heartburn pills do not help. (Id. at 153.) NP Thomas ordered an EKG and advised Plaintiff to drink adequate fluids. (Id.)
The records of this ICS were not provided to the Court.
On June 10, 2022, Plaintiff saw NP Thomas requesting an ADA phone because he cannot walk all the way to the recreation fields because there is a slope and a curb and because his foot drags while walking and he uses a walker. (Id. at 159.) NP Thomas gave Plaintiff a SNO for an ADA phone. (Id. at 163.)
On June 13, 2022, Plaintiff saw NP Thomas for a scheduled sick call requesting ADA classification due to back pain and foot drop. (Id. at 165.) NP Thomas wrote “criteria not met for ADA classification.” (Id. at 169.)
On July 15, 2022, Plaintiff saw NP Thomas for a scheduled sick call complaining that he feels weak, lightheaded, and has blurred vision daily 2-3 times per day. (Id. at 171.) NP Thomas noted that Plaintiff's EKG was unremarkable. (Id. at 175.) Thomas ordered “DP2, vitamin B12, and HBA1C,” and advised Plaintiff to drink plenty of water. (Id.)
The EKG was not provided to the Court.
On August 7, 2022, NP Thomas prescribed Plaintiff absorbase external, a topical skin ointment. (Id. at 186.)
On August 23, 2022, Plaintiff saw NP Thomas after he refused Alpha lipoic acid due to heartburn. (Id. at 177.) NP Thomas discontinued Alpha lipoic acid. (Id. at 181.)
On August 31, 2022, Plaintiff saw NP Thomas regarding ongoing canker sores and 10/10 pain in the face, jaw, and behind his ears. (Id. at 183.) NP Thomas prescribed a mouth wash. (Id. at 187.)
On September 15, 2022, Plaintiff saw NP Thomas for a scheduled sick call and reported cramps in both legs 3-4 times per day and 10/10 pain lasting 2 minutes. (Id. at 189.) NP Thomas prescribed Magnesium Oxide and advised Plaintiff to drink plenty of fluids. (Id. at 193.)
On September 17, 2022, Plaintiff submitted a HNR requesting a renewal of his SNO for a shower chair. (Id. at 203.) On September 19, 2022, Plaintiff was issued a SNO for a shower chair. (Id. at 199.)
Plaintiff submitted a HNR that said:
The original HNR was not provided and the medical record does not contain the date of this HNR.
I have signs of a severe dermatological problem on both lower legs, they Itch, burn, and need treatment. I need skin tests for fungus auto immune disease and treatment, my legs are scarred from itching. I'd like some stockings to keep me from itching & scratching, also need perfume free moisturizers. I'd also like the dark areas tested for cancer and anything else, these sores are open and painful. I've had eczema all my life, it may be in some sort of extreme state now in my legs.(Id. at 63.) On exam on November 15, 2022, NP Adams noted that Plaintiff still had a rash, and on exam had redness, open sores, itching, and discoloration of the skin. (Id.) Adams prescribed Hydrocortisone 1% for 7 days, and unspecified hand/body moisturizer for 7 days. (Id.)
On November 28, 2022, Plaintiff saw NP Adams for a chronic care visit, and she renewed his SNOs for cane, “LB,” and medical shoes. (Id. at 51.)
On December 28, 2022, a note was entered indicating that NP Adams and Dr. Stewart state that Plaintiffs needs to be ADA and needs a SNO. (Id. at 206.)
On February 19, 2023, a medical emergency was called when Plaintiff complained of right rib pain and shortness of breath. (Id. at 37-38.) Plaintiff was prescribed a 3-day lay-in and referred to provider for follow-up. (Id. at 39.)
Between February 22, 2023, and March 3, 2023, Plaintiff was prescribed sulfamethoxazole-trimethoprim, an antibiotic. (Id. at 15.)
The reasons this was prescribed and the related medical records were not provided to the Court.
On February 24, 2023, Plaintiff had x-rays of his abdomen at the request of provider Avant-Ortiz; the findings were unremarkable. (Id. at 34.)
The records of these x-rays were not provided to the Court.
On March 3, 2023, a note was made that Plaintiff was awaiting medical shoes, which were ordered and that there was an abrasion on the bottom of his left great toe, and Plaintiff wanted a lay in until his new shoes arrive. (Id. at 7.)
On March 15, 2023, and April 17, 2023, Plaintiff's medical shoes were ordered, and on May 8, 2023, a note was made that Plaintiff's size 12 medical shoes were delivered to property for distribution. (Id. at 3-4.)
On March 23, 2023, Plaintiff saw RN Callahan and reported rash, erythema of bilateral shins, and itching keeping him awake; Plaintiff reported that D-cerin and Aveeno lotion were effective in healing legs and controlling itch. (Id. at 7.) Plaintiff was placed on the provider line. (Id.)
On April 11, 2023, Plaintiff saw RN Hernandez and reported very bad eczema; Plaintiff wrote that he was getting Aveeno and D-cerin, but neither of them is for eczema, but they both helped in the past. (Id. at 6.) Plaintiff stated that he is scratching and bleeding everywhere, with tiny sores all over his arms and legs that bleed. (Id.) On exam, it was noted that Plaintiff had visibly dry, excoriated skin on arms and legs bilaterally with some areas crusted. (Id.) It was noted that Plaintiff was placed on the provider line. (Id.)
On April 12, 2023, Plaintiff saw NP Adams and reported medical deficiencies and constant pain in his lower back that cause him to drag his feet when he walks, and nerve damage in both feet. (Id. at 4-5, 8.) Plaintiff reported that he will fall without the aid of a medical device and that he fell that morning. (Id.) Plaintiff requested physical therapy, an aide, and new ankle-foot orthoses because the ones he received recently do not fit. (Id.) Plaintiff also reported exacerbation of his eczema. (Id.) NP Adams wrote that due to ADC policy, “aides only issued [if patient] dependent for all needs and mostly not on this yard.” (Id.) On examination, Plaintiff's skin was dry, itchy, and inflamed. (Id.) NP Adams prescribed Betamethasone (a steroid cream) reordered medical shoes, an orthotics evaluation, and told Plaintiff to report falls as they occur. (Id.) NP Adams also requested an offsite orthotics evaluation for Plaintiff. (Id. at 12.)
On April 21, 2023, Plaintiff requested ADA housing and physical therapy due to his disability. (Id. at 3.)
On May 1, 2023, Plaintiff had hip x-rays at the request of NP Adams; the results were unremarkable. (Id. at 29.)
The medical records of these x-rays were not provided to the Court.
On May 8, 2023, Plaintiff submitted a HNR stating that the brakes on his walker were broken; a note was made that Plaintiff was provided a replacement walker. (Doc. 26-1 at 3.) On May 10, 2023, a note was made indicating that Plaintiff received a new walker in exchange for his loaner walker. (Id.)
On May 24, 2023, Plaintiff submitted a HNR indicating that he submitted a few HNRs and was told he would be placed on the nurse's line, but he had not been placed on the nurse's line and he needed his HNRs renewed. (Id. at 2.)
On June 5, 2023, Plaintiff was seen by NP Adams in response to a HNR in which he stated that he had still not received medical shoes that he was told by NP Adams that had been ordered in March. (Doc. 26-3 at 2.) At the appointment, Plaintiff stated that he received the medical shoes, but he was not wearing them because his feet were bleeding. (Id. at 3.) NP Adams observed that Plaintiff was wearing boots provided by a prison employee and told him that an appointment with an outside provider was pending to fit him for medical shoes and orthotics. (Id.) Plaintiff also complained that because he has difficulty walking, he is exhausted whenever he reaches his destination and complained that he is in pain; he requested ADA housing. (Id.) NP Adams noted that Plaintiff is stable with no emergent needs. (Id.) Plaintiff requested physical therapy due to worsening, chronic low back pain; NP Adams placed a consult for PT evaluation with the December 17, 2019, MRI attached. (Id.) Plaintiff again requested not to wear a lanyard around his neck and NP Adams said she would clear with security to see if this was acceptable. (Id.) Plaintiff also requested to be transported in a van with windows due to vomiting and NP Adams said she would clear with security to see if this was acceptable. (Id.)
The original HNR is not provided and the date it was submitted is not stated in the records provided to the Court.
NP Adams did not acknowledge that this was consistent with a previous SNO that was issued by NP Thomas.
IV. Discussion
A. Eighth Amendment
Under the Eighth Amendment, 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 (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 (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) (cleaned up), or when they fail to respond to a prisoner's pain or possible medical need. Jett, 439 F.3d at 1096. “Neither negligence nor gross negligence will constitute deliberate indifference.” Clement v. California Dep't of Corrs., 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.
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. Thomas
Defendants assert that NP Thomas continually addressed Plaintiff's dermatitis, lower extremity pain, foot drop, and nerve issues, and was not deliberately indifferent to his serious medical needs.
A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (“access to medical staff is meaningless unless that staff is competent and can render competent care”); see Estelle, 429 U.S. at 105 & n. 10 (the treatment received by a prisoner can be so bad that the treatment itself manifests deliberate indifference). Thus, a prisoner does not have to prove that he was completely denied medical care. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000). Deliberate indifference may be shown where a prison doctor consciously chooses an “easier and less efficacious treatment” for a prisoner's serious medical need. Estelle, 429 U.S. at 1054 n.10) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).
In his verified Complaint, Plaintiff provides detailed allegations against Defendant Thomas concerning complaints about his skin problems, including consistent bleeding from open wounds. Plaintiff claims that in January, February, March, and April 2022, he submitted HNRs begging for help with the wounds on his legs, in May 2022, he reported the problem in person to Thomas again, and in June 2022, he told her the cream did not help. Plaintiff asserts that Thomas did not treat his skin issues or obtain medical shoes for him and told him that although he suffered a ruptured disc due to dragging his feet, his only option was to stop dragging his feet. Plaintiff asserts that in October and November 2022, he received no treatment for his open wounds.
Thomas denies Plaintiff's allegations. Thomas's denials merely create disputed issues of material fact. The medical records provided to the Court are incomplete. No provider attests that the Court has received the entirety of the medical records for the relevant time period, and it is clear from the records provided that many are missing. Moreover, Defendants did not provide the Court with the HNRs submitted by Plaintiff and the record reflects only those HNRs that were separately entered into the medical records. On this record, the Court cannot determine that Plaintiff did not submit the HNRs he claims to have submitted or that he did not tell Thomas about his problems.
The medical records also reflect that Plaintiff suffered from dermatological issues while under Thomas's care, and when Adams took over his care, he had sores all over his legs and arms, and dry, itchy, and inflamed skin. This creates a disputed issue of material fact as to whether Thomas was deliberately indifferent to a serious risk to Plaintiff's health when she did not respond to his alleged ongoing complaints about his skin problems.
Although the medical records reflect Plaintiff requesting medical shoes on numerous occasions between May 2020 and 2023, and the records state that Thomas ordered the shoes, there is no confirmation or indication that Plaintiff ever received the medical shoes or when he received shoes in that period and whether those shoes were appropriate for Plaintiff's medical condition. There is a disputed issue of material fact as to whether Thomas was deliberately indifferent to Plaintiff's serious medical needs when she did not ensure that he had medically appropriate shoes for years.
Accordingly, summary judgment will be denied to Thomas.
C. Adams
Adams denies Plaintiff's allegations, but her denials merely create disputed issues of material fact. The Court cannot find on this incomplete record that Adams was not deliberately indifferent to Plaintiff's serious medical needs. Plaintiff claims that in January 2023, Adams claimed she would order medical shoes that he did not receive for months and that were not effective when he did receive them, that she refused to treat the skin condition or the wounds that resulted from the skin condition, although she suggested he buy his own cream and bandages from the prison commissary, and that she told him that he would just have to live with his ruptured disc without treatment. Plaintiff further alleges that in February 2023, the condition of his shoes was so bad that a Deputy Warden got him boots from the supply room. Although the boots were better than what he previously had, Plaintiff still suffered problems from not having appropriate medical shoes. It was not until June 2023, after Plaintiff filed a Motion for injunctive relief in this action, that Adams requested that Plaintiff to be fitted for custom orthotics to treat his continually painful and bleeding feet. On this record, a reasonable jury could determine that Adams was deliberately indifferent to Plaintiff's serious medical needs due to delays in providing him treatment for his skin and feet. Accordingly, the Motion for Summary Judgment will be denied as to Plaintiff's claims against Defendant Adams.
D. Dr. Stewart
Defendants claim that Dr. Stewart has only had three encounters with Plaintiff during the timeframe relevant to his Complaint, all of which occurred in August and September 2020 relating to Plaintiff's COVID-19 diagnosis. Defendants further assert that Dr. Stewart only had three encounters with Plaintiff following the relevant time frame, where nursing staff noted orders he gave in relation to Plaintiff's healthcare.
A supervisor can be liable if he or she acted, or failed to act, in a manner that was deliberately indifferent to a prisoner's Eighth Amendment rights. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011). A supervisor may be liable in his individual capacity under § 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Id. at 1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). Overt personal participation is not required for supervisory liability. Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). A sufficient causal connection can be shown where a supervisor “set[s]in motion a series of acts by others,” or “knowingly refus[es] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.” Starr, 652 F.3d at 1207-08 (quoting Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)).
Dr. Stewart denies Plaintiff's allegations that he implemented an alternative treatment plan for Plaintiff or that Plaintiff had an alternative treatment plan and denies Plaintiff's allegations that Dr. Stewart told him that he would look into his medical issues. Again, Dr. Stewart's denials merely create disputed issues of material fact due to credibility disputes between his version of events and Plaintiff's version of events. Dr. Stewart does not describe his role in Plaintiff's healthcare, but it appears from the medical records before the Court that it was his duty to supervise Defendants Thomas and Adams, who are not medical doctors, in providing healthcare to prisoners. In January 2022, NP Adams noted that she discussed Plaintiff's healthcare with Dr. Stewart in the context of ordering an MRI for Plaintiff, and it is not clear on this Record the extent of Dr. Stewart's involvement during the relevant timeframe. Plaintiff claims that he reported his conditions to Dr. Stewart on several occasions and Dr. Stewart was deliberately indifferent to Plaintiff's serious medical needs in not ensuring Plaintiff received treatment for his dermatological, foot and back issues.
Accordingly, there are disputed issues of material fact and summary judgment will be denied to Defendant Dr. Stewart on this Record.
E. NaphCare, Thornell, and Hobbs
To prevail on a claim against NaphCare, as a private entity serving a traditional public function, Plaintiff must meet the test articulated in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-94 (1978). Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state law). Likewise, to prevail on a claim against Thornell and Hobbs in their official capacities, Plaintiff must show that an official policy or custom caused the constitutional violation. Monell, 436 U.S. at 694.
To make this showing, he must demonstrate that (1) he was deprived of a constitutional right; (2) Centurion and/or Thornell and/or Hobbs 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 (internal quotation and citation omitted). “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).
Defendants assert that there is no evidence of a policy, practice, or custom that led to a violation of Plaintiff's constitutional rights.
Plaintiff did not file a Response to the Motion for Summary Judgment and has not introduced any evidence supporting his allegations that any Defendant was deliberately indifferent to his serious medical needs based on a policy, practice, or custom of Defendants NaphCare, Thornell, and Hobbs. Plaintiff's allegations in the Complaint regarding alleged policies are not based on his personal knowledge and are conclusory. There is no evidence in the Record before the Court that any of Plaintiff's care was based on deliberately indifferent policies, practices, or customs of Defendants NaphCare, Thornell, and Hobbs. Accordingly, summary judgment will be granted in favor of Defendants NaphCare, Thornell and Hobbs.
F. Statute of Limitations
Defendants assert that because Plaintiff did not file this lawsuit until January 19, 2023, any of his claims premised on medical treatment that occurred prior to then are time barred.
Defendants' argument is problematic because it does not address that the statute of limitations is tolled while a prisoner exhausts his available administrative remedies. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[W]e agree with the uniform holdings of the circuits that have considered the question that the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”). Additionally, Defendants do not discuss when Plaintiff's claims would have accrued for statute of limitations purposes. In a medical care case, the date of accrual is not necessarily the first time the Plaintiff sees the provider, especially where the provider claims they will take actions that they do not actually take, and such omissions give rise to the claims. Accordingly, the Record is not developed enough for the Court to determine when Plaintiff's claims accrued for statute of limitations purposes. See Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008) (under federal law, a claim accrues “when the plaintiff knows or has reason to know of the injury” that is the basis of the claim) (internal quotation marks omitted). Accordingly, the Motion for Summary Judgment as to the statute of limitations argument will be denied because the Record is incomplete as to how long Plaintiff's claims were tolled and when Plaintiff's claims accrued.
G. Punitive Damages
Defendants assert that the circumstances of this case do not permit the imposition of punitive damages. Regarding punitive damages against the individual Defendants based on alleged deliberate indifference to serious medical needs, whether punitive damages are warranted is generally an issue reserved for the jury. See Smith v. Wade, 461 U.S. 30, 48, 54, 56 (1983) (“punitive damages are awarded in the jury's discretion”). And here, a reasonable jury could conclude that Defendant medical providers exhibited conduct “shown to be . . . reckless or callous indifference to the federally protected rights of Plaintiff, thereby warranting punitive damages. Id. at 56. The request for summary judgment as to punitive damages against the individual Defendants will be denied.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 66).
(2) Defendants' Motion for Summary Judgment (Doc. 66) is granted in part and denied in part as follows:
(a) the Motion is granted as to Defendants NaphCare, Thornell, and Hobbs, and Defendants NaphCare, Thornell, and Hobbs are dismissed from this action with prejudice.
(b) the Motion is otherwise denied.
(3) The remaining claims in this action are Plaintiffs Eighth Amendment medical care claims against Defendants Thomas, Adams, and Stewart.
(4) This action is referred by random lot to Magistrate Judge John Z. Boyle for the purpose of conducting a settlement conference.
(5) Defendants' counsel must arrange for all parties to jointly contact the chambers of Magistrate Judge Boyle at (602) 322-7670 within 14 days of the date of this Order to schedule a settlement conference.