Bigelow v. Igwe

Opinion

WO SC Roy Bigelow, No. CV 19-05496-PHX-MTL (ESW) Plaintiff, v. ORDER Dorothy Igwe, et al., Defendants.

Plaintiff Roy Bigelow, who is confined in the Arizona State Prison Complex, East Unit, in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and paid the $400.00 filing and administrative fees. The Court dismissed the Complaint with leave to amend (Doc. 5). Plaintiff has filed a First Amended Complaint (Doc. 7). The Court will require the following Defendants to answer the First Amended Complaint: Defendants Igwe and Starling in their individual capacities, Shinn in his official capacity, Corizon, and Centurion. The Court will dismiss the remaining Defendants without prejudice. I. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a 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). 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. But 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)). II. First Amended Complaint In his one-count First Amended Complaint, Plaintiff alleges a denial of constitutionally adequate medical care. Plaintiff sues the former Director of the Arizona Department of Corrections (ADC), Charles Ryan; the former acting ADC Director, Joseph Profiri; and the current ADC Director, David Shinn.1 Plaintiff also sues Corizon Health

1 Plaintiff appears to name Ryan, Profiri, and Shinn in their official capacities and the remaining individual Defendants in their individual capacities. A suit against a defendant in his or her individual capacity seeks to impose personal liability upon the L.L.C. (“Corizon”), which until July 1, 2019, was responsible for medical care for ADC prisoners pursuant to a contract with ADC. In addition, Plaintiff sues Centurion of Arizona, L.L.C. (“Centurion”), the entity responsible for medical care for ADC prisoners since July 1, 2019.2 Plaintiff also sues Nurse Practitioner Dorothy Igwe and Facility Health Administrator (FHA) Adam Perkins, who each previously worked for Corizon and now work for Centurion, and Centurion Assistant FHA Trina Randall. In addition, Plaintiff sues Registered Nurse Theresa Starling. Plaintiff seeks injunctive and compensatory relief. Plaintiff alleges the following facts: Plaintiff has had Hepatitis C for approximately 25 years. Prior to his current incarceration, Plaintiff was hospitalized for two months after six feet of his large intestine, half of his stomach, and a portion of his liver were removed, apparently due to gunshot injuries. (Doc. 7 at 12.) His current incarceration began approximately eleven years ago. According to Plaintiff, the practice of ADC and prison medical providers is to delay and deny treatment for serious medical conditions to save money. Over the past ten years, Plaintiff has continuously complained of worsening medical conditions, including: liver pain, digestive issues, kidney problems, fatigue, joint pain, testicular pain, difficulty urinating, and elevated pancreatic “numbers.” According to Plaintiff, Defendants have refused to treat these issues due to the cost of treatment, rather than medical need, and have ignored Plaintiff’s repeated requests for treatment. Defendant Igwe has assessed Plaintiff on several occasions, first as a Nurse

official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). For a person to be liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply conclusions, that show that the individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). By comparison, a suit against a defendant in his official capacity represents only another way of pleading an action against the entity that employs the defendant. Kentucky, 473 U.S. at 165. That is, the real party in interest is not the named defendant, but the entity that employs the defendant. Id. To bring a claim against an individual in his official capacity, a plaintiff must show that the constitutional deprivation resulted from the entity’s policy, custom, or practice. Id.; Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). 2 As pertinent to Plaintiff’s claims, from July 1, 2012 until March 4, 2013, Wexford Health Sources (“Wexford”) was responsible for health care for ADC prisoners under a contract with ADC. From March 4, 2013, to July 1, 2019, Corizon was responsible for health care for ADC prisoners under a contract with ADC. Beginning July 1, 2019, Centurion became responsible for medical care for ADC prisoners. Practitioner for Corizon and now as a Nurse Practitioner for Centurion. Plaintiff has repeatedly asked Igwe to advocate for treatment of his Hepatitis C (“Hep C”) as it is causing him injury and has led to other “serious medical issues.” (Doc. 7 at 4.) Igwe has informed Plaintiff that he does not qualify for treatment because his “levels are good” and his medical condition is not a priority. At a July 7, 2018 appointment, a provider recommended a CT scan; Plaintiff alleges the CT was requested because he had “serious intestinal complications due to scarring” after his intestines, stomach, and liver were partially removed due to gunshot wounds. (Id. at 14 ¶ 11.) Corizon denied the recommendation. On September 14, 2018, Plaintiff submitted an informal complaint stating that he had elevated pancreatic levels, problems urinating, and testicular pain and that he was in a lot of pain. In an October 2, 2018 response to Plaintiff’s informal complaint, “medical” stated: Your primary concern is: your elevated pancreas levels, problems urinating, and testicular pain. You have been seen by the provider on 9/7/18. Per the plan notes, “will resubmit CT abdomen if pain continues and pancreatic enzymes still elevated.” (Id. at 5 ¶ 5.) About a year later, on September 19, 2019, Plaintiff submitted an informal complaint stating that he had been needlessly suffering for a long time and had been denied specialty care for his Hep C and was not receiving any treatment due to a policy of monitoring rather than treating his condition. Plaintiff requested treatment for his Hep C regardless of the stage of his disease. In a September 27, 2019 response, a Centurion staff member stated Your concern has been researched including a review of your medical records. I am providing you with the following response: Currently Hep C treatment is prioritization [] based on available resources. (Id. 5-6 ¶ 7.) On September 24, 2019, Plaintiff submitted a grievance requesting treatment for his Hep C. In a September 30, 2019 response, Defendant Randall stated that Centurion followed the July 2018 Federal Bureau of Prisons Guidelines and ADC’s Health Services Technical Manual Clinical Practice Guidelines. (Id. at 6 ¶ 9.) Randall stated that both sets of Guidelines provided guidance in prioritizing treatment of Hep C in prisoners based upon their disease stage. (Id.) Randall stated that she considered the grievance resolved. (Id.) According to Plaintiff, the response was addressed to a “Mr. Rivera,” and had been “cut and pasted” from a response to Rivera. Plaintiff maintains that Randall cut and pasted her response to his grievance from responses to other prisoners without actually reviewing his medical records.3 “Most recently,” Igwe informed Plaintiff that he was not a candidate for treatment. Plaintiff asked her to “advocate for [him]” and submit a request for treatment, but she refused. (Id. at 6 ¶ 11.) Both Igwe and Starling told Plaintiff that he had to be close to liver failure or death before they would consider advocating for and treating him. (Id. at 13 ¶ 2.) Igwe has told Plaintiff that under Corizon and Centurion’s policies, he could not receive treatment, enhanced testing such as a baseline workup, or a liver biopsy. (Id. at 13 ¶ 1.) According to Plaintiff, Starling told him that his Hep C labs reflect abnormally high levels of liver enzymes reflecting his worsening Hep C status and liver damage. (Id. at 13 ¶ 4.) Plaintiff generally claims that Igwe, Randall, and Perkins failed to timely intervene and treat his Hep C despite his complaints of liver and abdominal pain, joint pain, kidney issues, and fatigue for more than ten years, which have adversely affected him. (Id. at 7 ¶ 13.) He generally alleges that ADC, Ryan, Profiri, and Shinn had a non-delegable duty to provide adequate medical care under Arizona Revised Statutes section 31-201.01, that they breached that duty as to him, and failed to revise guidelines to remove current exclusions from treatment that jeopardize Plaintiff’s life. (Id. at 7 ¶¶ 12, 17 & 14 ¶ 8.) He contends that Ryan, Profiri, and Shinn personally approved the policies and guidelines for Hep C treatment, making them personally liable. (Id. at 14 ¶ 9.) Plaintiff also asserts that ADC, Ryan, and Profiri violated their own policy requiring provision to the Health Services

3 Given the number of prisoners who have Hep C, a more plausible explanation may be that medical staff provide analogous responses to similar types of grievances relating to a prisoner’s Hep C. Contractor of “the resources to provide constitutionally mandated health care and appropriate referrals for inmates who appear for treatment.” (Id. at 7-8 ¶ 16.) Plaintiff asserts that “Defendants” have violated his Eighth Amendment rights to medical care. (Id. at 7 ¶ 15.) He also claims they have failed to promulgate effective policies and procedures to ensure “adequate” health care. (Id. at 8 ¶ 18.) Plaintiff further claims that “Defendants” have a pattern and practice of failing to provide timely and medically appropriate care to prisoners, including Plaintiff. (Id. at 8 ¶ 19.) He contends that, as contractors with the State of Arizona and ADC, Profiri, and/or Ryan, Corizon and Centurion “may be liable” for some or all damages, including punitive damages, to him. (Id. at 8-9 ¶ 20.) Plaintiff asserts there is no dispute that Igwe, Perkins, and Randall were aware of his serious medical needs via the results of blood tests. He further contends that Centurion hired Igwe, Perkins, and Randall knowing they would be deliberately indifferent to prisoner care by delaying or denying medical care for serious medical needs to save Centurion money, as did Corizon prior to Centurion. (Id.at 9 ¶ 24.) Plaintiff claims that “Defendants” rely on inaccurate and arbitrary methods to determine who warrants care, such as tests with up to 50% false negatives. (Id. at 10-11 ¶¶ 25, 28.) Plaintiff claims that some correctional departments or courts have ordered the provision of Hep C care regardless of the disease stage. Plaintiff suffers from extreme pain and constipation but “Defendants keep denying requested specialty imaging and referrals.” (Id. at 14 ¶ 11.) III. Failure to State a Claim To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 72, 377 (1976). Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; “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). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); 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. “Neither negligence nor gross negligence will constitute deliberate indifference.” Clement v. Cal. 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. Plaintiff fails to allege facts to support that Ryan, Profiri, or Shinn are liable in their individual capacities. Plaintiff’s assertion that executing a contract with Corizon or Centurion is sufficient to support personal involvement in alleged denial of constitutionally adequate medical care to Plaintiff is too attenuated to state a claim. Inasmuch as neither Ryan, nor Profiri are currently the ADC director, Plaintiff also fails to state a claim against either of them in their official capacities. Plaintiff also fails to sufficiently allege facts to state a claim against Defendant Perkins in his individual capacity. Plaintiff merely makes vague and conclusory allegations against Perkins. Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pleaded. Id. Finally, Plaintiff’s allegation that Randall denied his grievance regarding medical care is insufficient to state a claim. Under Ninth Circuit law, a defendant can be liable for failure to act. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Generally, whether a defendant’s denial of administrative grievances is sufficient to state a claim depends on several facts, including whether the alleged constitutional violation was ongoing, see e.g., Flanory v. Bonn, 604 F.3d 249, 256 (6th Cir. 2010), and whether the defendant who responded to the grievance had authority to take action to remedy the alleged violation, see Bonner v. Outlaw, 552 F.3d 673, 679 (8th Cir. 2009). Plaintiff does not allege facts to support that Randall had the authority to require medical staff to provide different medical care, particularly medical care allegedly subject to policies of the medical contractor. Accordingly, the Court will dismiss Count I as to Perkins. IV. Claim for Which an Answer Will be Required Plaintiff has sufficiently alleged that he has serious medical needs, which are and have been causing him extreme pain. He sufficiently alleges facts to support that Defendants Igwe and Starling acted with deliberate indifference to Plaintiff’s repeated claims of extreme pain in conjunction with elevated pancreatic levels, partial organ removal, and other symptoms. Plaintiff also sufficiently alleges that he has been denied treatment by Corizon and Centurion pursuant to a policy, custom, or practice to deny medically appropriate treatment and diagnostic testing to reduce costs to each of them respectively. These Defendants will be required to respond to the First Amended Complaint. In addition, Plaintiff sufficiently alleges that he has been denied constitutionally adequate medical care pursuant to an ADC policy, practice, or custom and Defendant Shinn will be required to respond to Count I in his official capacity. V. Warnings A. Address Changes Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. Copies Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff. C. Possible Dismissal If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: (1) Defendants Profiri, Ryan, Perkins, and Randall are dismissed without prejudice. (2) Defendants Igwe and Starling in their individual capacities, Shinn in his official capacity, and Corizon and Centurion must answer Count I. (3) The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. 7), this Order, and both summons and request for waiver forms for Defendants Igwe, Starling, Shinn, Corizon, and Centurion. (4) Plaintiff must complete4 and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (5) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). (6) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. (7) The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. (8) A Defendant who agrees to waive service of the Summons and First Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service.

4 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. (9) The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, First Amended Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) and Rule 4(h)(1) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, First Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (10) Defendants must answer the First Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (11) Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. . . . . . . . . . . . . . . . . . . . . 1 (12) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Dated this 13th day of May, 2020. WM clacl T. Hburde Michael T. Liburdi United States District Judge