1 SH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roy Bigelow, No. CV 19-05496-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Dorothy Igwe, et al., 13 Defendants.
14 15 Plaintiff Roy Bigelow, who is currently confined in Arizona State Prison Complex 16 (ASPC)-Tucson, Whetstone Unit, brought this civil rights case pursuant to 42 U.S.C. 17 § 1983. (Doc. 7.) Defendants move for summary judgment (Docs. 120, 121), and Plaintiff 18 opposes (Docs. 134, 135).1 19 I. Background 20 On screening Plaintiff’s First Amended Complaint (Doc. 7) under 28 U.S.C. 21 § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment medical care 22 claim against Nurse Practitioner (NP) Dorothy Igwe, Starling, Shinn, Corizon, and 23 Centurion based on their alleged failure to treat Plaintiff’s Hepatitis C. (Doc. 8.) The Court 24 ordered these Defendants to answer and dismissed the remaining claims and Defendants. 25 (Id.) 26 Defendants now move for summary judgment and argue that they were not 27
28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Docs. 123, 124.) 1 deliberately indifferent to Plaintiff’s serious medical need. (Docs. 120, 121.) 2 II. Summary Judgment Standard 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 6 movant bears the initial responsibility of presenting the basis for its motion and identifying 7 those portions of the record, together with affidavits, if any, that it believes demonstrate 8 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 9 If the movant fails to carry its initial burden of production, the nonmovant need not 10 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 11 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 12 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 13 contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 17 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 18 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 19 it must “come forward with specific facts showing that there is a genuine issue for trial.” 20 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 21 citation omitted); see Fed. R. Civ. P. 56(c)(1). 22 At summary judgment, the judge’s function is not to weigh the evidence and 23 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 24 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 25 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 26 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 27 /// 28 /// 1 III. Relevant Facts 2 A. Plaintiff’s Allegations 3 Plaintiff has had Hepatitis C for approximately 25 years. (Doc. 7 at 4.) Prior to his 4 current incarceration, Plaintiff was hospitalized for two months after six feet of his large 5 intestine, half of his stomach, and a portion of his liver were removed, apparently due to 6 gunshot injuries. (Id. at 12.) According to Plaintiff, the practice of ADC and prison medical 7 providers is to delay and deny treatment for serious medical conditions to save money. (Id. 8 at 4.) 9 Over the past ten years, Plaintiff has continuously complained of worsening medical 10 conditions, including: liver pain, digestive issues, kidney problems, fatigue, joint pain, 11 testicular pain, difficulty urinating, and elevated pancreatic “numbers.” (Id. at 4.) 12 According to Plaintiff, Defendants have refused to treat these issues due to the cost of 13 treatment, rather than medical need, and have ignored Plaintiff’s repeated requests for 14 treatment. (Id.) Plaintiff asserts that Defendant Igwe has assessed him on several 15 occasions, first as a Nurse Practitioner for Corizon and now as a Nurse Practitioner for 16 Centurion. (Id. at 4.) Plaintiff has repeatedly asked Defendant Igwe to advocate for 17 treatment of his Hepatitis C as it is causing him injury and has led to other “serious medical 18 issues,” but Defendant Igwe has informed Plaintiff that he does not qualify for treatment 19 because his “levels are good” and his medical condition is not a priority. (Id. at 4.) 20 Plaintiff generally asserts that Defendant Igwe failed to timely intervene and treat 21 his Hepatitis C despite his complaints of liver and abdominal pain, joint pain, kidney issues, 22 and fatigue for more than ten years, which have adversely affected him. (Id. at 7 ¶ 13.) 23 Plaintiff also asserts alleges that ADC and Shinn had a non-delegable duty to provide 24 adequate medical care under Arizona Revised Statutes § 31-201.01, that they breached that 25 duty as to him, and failed to revise guidelines to remove current exclusions from treatment 26 that jeopardize Plaintiff’s life. (Id. at 7 ¶¶ 12, 17 & 14 ¶ 8.) Plaintiff contends that 27 Defendant Shinn personally approved the policies and guidelines for Hepatitis C treatment. 28 (Id. at 14 ¶ 9.) Plaintiff also asserts that ADC and Shinn violated their own policy requiring 1 provision to the Health Services Contractor of “the resources to provide constitutionally 2 mandated health care and appropriate referrals for inmates who appear for treatment” and 3 that they have failed to promulgate effective policies and procedures to ensure “adequate” 4 health care. (Id. at 7–8 ¶¶ 16, 18.) Plaintiff further claims that “Defendants” have a pattern 5 and practice of failing to provide timely and medically appropriate care to prisoners, 6 including Plaintiff. (Id. at 8 ¶ 19.) 7 B. Plaintiff’s Medical Care under Corizon 8 1. Corizon’s Hepatitis C Policies and Procedures 9 From March 4, 2013 to June 30, 2019, Defendant Corizon was the contracted 10 healthcare provider for ADC prisoners. (Doc. 122 (Corizon Statement of Facts) ¶ 2.) 11 According to a Report published by Gilead Science, the challenges facing prisons in 12 treating the prisoner population infected with Hepatitis C include budgetary constraints, 13 the high cost of treatment, and the fact that incarcerated individuals are up to 13 times more 14 likely to have detectible levels of Hepatitis C in the blood than in the general population. 15 (Id. ¶ 4.) Recognizing these challenges, the Federal Bureau of Prisons’ Clinical Guidance 16 Manual for the Evaluation and Management of Chronic Hepatitis C (HCV) Infection 17 (hereinafter “BOP Manual”), which was adopted by ADC and Corizon Health, contains a 18 comprehensive framework for prioritizing prisoners for Hepatitis C treatment so that those 19 with the greatest need are identified and treated first. (Id. ¶ 5.) 20 According to the BOP Manual, progression from chronic Hepatitis C infection to 21 fibrosis and eventually cirrhosis may take years in some patients and decades in others, or, 22 in some cases, may not occur at all. (Id. ¶ 6.) Most complications from Hepatitis C 23 infection occur in people with cirrhosis; therefore, assessing for cirrhosis is important in 24 prioritizing prisoners for Hepatitis C treatment. (Id. ¶¶ 7–8.) 25 Thus, the APRI score is the “BOP-preferred method for noninvasive assessment of 26 hepatic fibrosis and cirrhosis” and “APRI scores [greater than] 2.0 may be used to predict 27 the presence of cirrhosis.” (Id. ¶ 9.) However, the APRI score is not necessary for 28 predicting cirrhosis if cirrhosis has been diagnosed by other means. (Id. ¶ 10.) The APRI 1 score is calculated using the results of two blood tests—the AST (aspartate 2 aminotransferase) and the platelet count—and is considered a less expensive and less 3 invasive means of assessing liver fibrosis than a liver biopsy. (Id. ¶ 11.) The Gilead Report 4 similarly recognizes that the severity of liver disease in people with Hepatitis C can be 5 estimated using formulas based on common laboratory tests. Two common methods are 6 the aspartate aminotransferase (AST) to platelet ratio (APRI) and the Fibrosis-4 Index. (Id. 7 ¶ 12.) 8 According to the BOP standards, prisoners with “advanced hepatic fibrosis,” liver 9 transplant recipients, and those with comorbid medical conditions are the highest priority 10 (Priority Level One) for treatment. (Id. ¶ 13.) Advanced hepatic fibrosis is demonstrated 11 through either: (1) an APRI score [greater than] 2; (2) “Metavir or Batts/Ludwig stage 3 or 12 4 on liver biopsy;” or (3) known or suspected cirrhosis. (Id. ¶ 14.) Liver transplant 13 recipients, those with certain co-morbid medical conditions, immunosuppressed patients, 14 and those who were already started on treatment when they were incarcerated also fall into 15 the Priority Level One category. (Id. ¶ 15.) 16 Next, patients in the “intermediate” priority category (Priority Level 2) have an 17 APRI score greater than 1 and/or “stage 2 fibrosis” on a liver biopsy. Those with certain 18 comorbid conditions, including liver disease, diabetes and chronic kidney disease, also fall 19 into the Priority Level 2 category. (Id. ¶ 16.) 20 Finally, those with an APRI score less than 1 are the lowest priority (Priority Level 21 3) for treatment. Those with stage 0-1 fibrosis on a liver biopsy also fall into this category. 22 (Id. ¶ 17.) Because APRI scores are used to predict the presence of cirrhosis, the standards 23 no longer require a liver biopsy. (Id. ¶ 18.) 24 According to the BOP Manual, warning signs of liver inflammation include fatigue, 25 weakness, lack of appetite, nausea, vomiting, jaundice and discolored feces. (Id. ¶ 19.) 26 The Gilead Report recognizes that other healthcare providers, such as Medicaid, use similar 27 parameters to determine treatment eligibility, such as fibrosis severity and patient sobriety, 28 in order to “manage cost and utilization of HCV therapy.” (Id. ¶ 20.) According to the 1 Gilead Report, the risk of liver failure is greater for people with Hepatitis C who have 2 severe fibrosis (F3) or cirrhosis (F4) than for those with less severe liver scarring. (Id. 3 ¶ 21.) A study by the Centers for Disease Control and Prevention (CDC) found that, after 4 five years, about 19% of people with severe fibrosis (F3) developed hepatic 5 decompensation compared with 3.5% of people with moderate fibrosis (F2). (Id. ¶ 22.) 6 In addition to the BOP Manual, Corizon Health also followed the ADC “Clinical 7 Practice Guidelines for the Prevention and Treatment for Viral Hepatitis C. (Id. ¶ 23.) The 8 Clinical Practice Guidelines estimate that approximately 23% of ADC prisoners are 9 infected with Hepatitis C. (Id.) The Clinical Practice Guidelines state that, in addition to 10 Priority Criteria, treatment considerations will focus on the following: absence of medical 11 contraindications for treatment; stage and grade of disease; absence of risky behavior as 12 evidenced by no disciplinary tickets for drug possession or tattoos for one year; sentence 13 length; and time left to serve. (Id. ¶ 24.) The Clinical Practice Guidelines memorialize the 14 high, intermediate and low Priority Levels contained within the BOP Manual almost 15 verbatim. (Id. ¶ 27.) The current version of the Clinical Practice Guidelines also state that 16 prisoners with an APRI score of 0.7 or above and who have findings suggestive of 17 advanced fibrosis (low albumin or platelets, elevated bilirubin or INR) will be prioritized 18 for treatment. (Id. ¶ 28.) The previous version of the Clinical Practice Guidelines, effective 19 January 1, 2010, did not contain this provision allowing priority treatment for prisoners 20 with APRI scores 0.7–1.0. (Id. at n.6.) 21 2. Treatment Received Under Corizon 22 On May 13, 2018, Plaintiff was seen by NP Awaal for his Hepatitis C chronic care 23 appointment. (Id. ¶ 30.) It was noted that Plaintiff denied any concerns regarding his 24 Hepatitis C at this time. (Id.) His APRI score was documented at 0.944. (Id.) Plaintiff 25 was informed that his Hepatitis C was stable and that it would continue to be monitored 26 and this his most recent liver function test was normal. (Id.) Routine labs for his Hepatitis 27 C were ordered. (Id.) 28 1 On June 21, 2018, Plaintiff was seen by NP Kary for follow up care regarding lab 2 results from earlier that month pertaining to his complaints of abdominal pain. (Id. ¶ 31.) 3 It was noted that he reported he was doing okay on this date and denied other concerns. 4 (Id.) The Plan/Patient education notes indicate that an iron supplement was ordered in 5 response to his low iron levels, his urine analysis (“UA”) labs were reviewed, a repeat UA 6 was performed during the visit (negative), additional labs were ordered, and an abdominal 7 CT was requested to evaluate his pancreas. (Id.) Plaintiff was assessed with abdominal 8 pain with a note stating “DDX [differential diagnosis] pancreatic cancer, pancreatitis.” 9 (Doc. 136-1 at 43.) 10 At a July 7, 2018 appointment, a provider recommended a CT scan; Plaintiff asserts 11 the CT was requested because he had “serious intestinal complications due to scarring” 12 after his intestines, stomach, and liver were partially removed due to gunshot wounds. 13 (Doc. 7 at 14 ¶ 11.) Corizon denied the recommendation. (Id.) 14 On September 7, 2018, Defendant Igwe met with Plaintiff for follow up care. (Doc. 15 122 ¶ 32.) Defendant Igwe explained that an Alternative Treatment Plan (“ATP”) was 16 issued in response to the request for an abdominal CT, which indicated the following: 17 The medical necessity for CT scan of abdomen to rule out pancreatic cancer for non-specific abdominal pain and slightly 18 elevated amylase is not met. No other[] signs or symptoms 19 suggestive of pancreatic cancer. In fact[,] based on documentation supplied[,] abdominal pain has resolved and 20 abdominal examination is unimpressive. Amylase in [and] of 21 itself can be raised due to multiple causes including liver disease and medications. Recommend: 1. following clinically 22 2. treating for GERD/ gastritis 3. KUB [kidney, ureter, bladder 23 x-ray]. 24 (Id.) Defendant Igwe’s documented plan states “Labs ordered: Diagnostic panel 2, lipase, 25 amylase, Ferritin; Resubmit CT of abdomen if pain continues and pancreatic enzymes still 26 elevated; Medication added: Omeprazole (antacid) 20 mg qam [once a day in the 27 morning].” (Id.) Defendant Igwe’s notes further indicate that Plaintiff was agreeable with 28 the plan. (Id.) 1 On September 14, 2018, Plaintiff submitted an informal complaint stating that he 2 had elevated pancreatic levels, problems urinating, and testicular pain and that he was in a 3 lot of pain. (Doc. 7 at 5 ¶ 4.) In an October 2, 2018 response to Plaintiff’s informal 4 complaint, “medical” stated: “Your primary concern is: your elevated pancreas levels, 5 problems urinating, and testicular pain. You have been seen by the provider on 9/7/18. Per 6 the plan notes, ‘will resubmit CT abdomen if pain continues and pancreatic enzymes still 7 elevated.’” (Id. at 5 ¶ 5.) 8 Defendant Igwe saw Plaintiff again on November 6, 2018, for a chronic care 9 telemedicine appointment. (Doc. 122 ¶ 33.) Plaintiff complained of chronic constipation 10 and stated that stool softeners were not working. (Id.) However, Plaintiff stated that he 11 had a “soft” bowel movement that day. (Id.) Defendant Igwe ordered Lactobacillus 12 Acidophilus daily, to add bacteria to Plaintiff’s intestine. (Id.) Defendant Igwe noted that 13 an abdominal and pelvic ultrasound was ordered. (Id.) Plaintiff’s APRI score as 14 documented as 0.9. (Id. at 154 (Corizon Ex. K).) 15 On November 10, 2018, an x-ray of Plaintiff’s abdomen showed increased fecal 16 material, but no evidence of mechanical obstruction or free air. (Doc. 122 ¶ 34.) 17 On December 20, 2018, Plaintiff saw Defendant Igwe for follow up care, at which 18 time Plaintiff stated that he thought he had a hernia. (Id. ¶ 35.) Plaintiff also complained 19 of testicular and abdominal pain. (Id.) He denied abdominal or scrotal 20 swelling/fever/chill/nausea/vomiting/diarrhea, and he confirmed he had a bowel movement 21 that morning. (Id.) Defendant Igwe reviewed the ATP’d ultrasound which stated: 22 “Medical necessity for [ultrasound] of right lower quadrant [ultrasound] is not documented. 23 Recommend: obtaining history, ROS, initial diagnostics (labs) to determine necessity for 24 further imaging.” (Id.) Defendant Igwe documented that Plaintiff had recently refused his 25 prescribed constipation medications. (Id.) The following medications were added: 26 Lactulose Solution 15 ml—give 30 ml twice per day; change Docusate Sodium—change 27 to directly observed therapy to monitor compliance given prior non-compliance; KEEFE 28 Tylenol 650 mg three times per day as needed for pain. (Id.) Defendant Igwe noted that 1 Plaintiff was agreeable with the plan. (Id.) The records also indicate that when the results 2 of KUB (abdomen x-ray) was reviewed, Plaintiff stated, “I do not have constipation.” (Id.) 3 On 1/2/2019, 1/3/2019, 1/10/2019, and 1/11/2019, Plaintiff refused his Colase 4 (Docusate Sodium) as prescribed for his constipation. (Id. ¶ 36.) 5 On February 21, 2019, Plaintiff saw Defendant Igwe for follow up care, and Plaintiff 6 complained of constipation, moderate right upper quadrant pain, and nausea. (Id. ¶ 37.) 7 Defendant Igwe noted that Plaintiff had a bowel movement that morning, and that he 8 denied other concerns. (Id.) Defendant Igwe added Docusate Sodium 100 mg bid 9 prn/Lactulose 30 ml bid prn for Plaintiff’s constipation and add Promethazine HCL 12.5 10 mg bid prn for Plaintiff’s nausea; the following labs were ordered: Diagnostic panel 2, 11 urine dipstick, hemoccult, CMP, lipase, and amylase. (Id.) Defendant Igwe noted that an 12 ultrasound of Plaintiff’s abdomen would be considered if his pancreatic enzymes remained 13 elevated. (Id.) 14 On March 27, 2019, Defendant Igwe saw Plaintiff for a provider follow up care 15 appointment, and Plaintiff complained of constipation, although he reported having a 16 bowel movement that morning, as well as back pain, abdominal pain, and chills, which he 17 reported as ongoing over the past year; he also reported occasional nausea and vomiting. 18 (Id. ¶ 38.) Plaintiff requested an offsite consult for an “abdominal scan.” (Id.) Additional 19 labs, stool analysis, and an x-ray of his abdomen were ordered, and Psyllium Husk 20 (Metamucil) 0.52 grams daily was added to his medications. (Id.) 21 On April 17, 2019, Defendant Igwe saw Plaintiff for a provider follow up care 22 appointment regarding his abdominal pain. (Id. ¶ 39.) Plaintiff’s abdominal x-ray results 23 were reviewed with him, which showed no free air or bowel obstruction. (Id.) The 24 documented plan was to request an offsite abdominal ultrasound to further evaluate 25 persistent abdominal pain with slightly elevated pancreatic enzymes. (Id.) 26 On May 2, 2019, Defendant Igwe saw Plaintiff for his chronic care appointment for 27 Hepatitis C. (Id. ¶ 40.) Defendant noted that she reviewed Plaintiff’s labs, and his exam 28 1 was unchanged. (Id.) Defendant Igwe also noted that the offsite ultrasound previously 2 requested was pending Utilization Management review. (Id.) 3 On May 14, 2019, Defendant Igwe saw Plaintiff for follow up care, and Plaintiff 4 reported that he felt a “blockage” in his urethra and that he did “not feel completely empty.” 5 (Id. ¶ 41.) Defendant Igwe reviewed the ATP issued in response to the request for an offsite 6 ultrasound, which provided: “Based on information provided, medical necessity not 7 demonstrated at this time. Inmate without clinical history to support diagnosis of 8 pancreatitis. Small elevations of lipase and amylase can be elevated secondary to 9 numerous other conditions or underlying co-morbidities.” (Id.) Tamsulosin HCL 10 (Flomax- BPH) 0.4 mg daily and Promethazine HCL 12.5 mg bid prn were ordered, and 11 Prostate Specific Antigen (PSA) labs were ordered to check for cancer, the results of which 12 were normal. (Id.) 13 On June 28, 2019, Plaintiff saw Defendant RN Starling during an unscheduled nurse 14 call. (Id. ¶ 42.) The notes from this visit indicate that Plaintiff requested to renew his 15 medical diet. (Id.) Defendant Starling’s notes advise that per chart review, Plaintiff’s diet 16 was active through December. (Id.) Plaintiff stated that his current medication, Colace 17 and Lactulose, were helping his constipation, and that he was having daily bowel 18 movements, but said he did not feel he was emptying bowels fully. (Id.) Defendant 19 Starling documented that Plaintiff had these problems since his gastrointestinal surgery 20 that was due to a gunshot wound. (Id.) Defendant Starling noted that Plaintiff’s exam was 21 unchanged, and that he had a non-tender abdomen and positive bowel sounds. (Id.) She 22 then referred Plaintiff to the provider, educated him to take all medications as prescribed, 23 maintain good hydration, increase fluids, told him to notify security of urgent symptoms, 24 and to submit Health Need Requests (HNRs) as needed. 25 On July 1, 2019, Centurion took over as the contracted healthcare provider at ADC 26 facilities. (Id. ¶ 43; Doc. 113 (Centurion Statement of Facts) ¶ 3.) Defendant Shinn took 27 over as ADC Director on October 21, 2019.2
28 2 See https://www.kold.com/2019/10/07/governor-appoints-new-arizona- 1 C. Plaintiff’s Medical Care under Centurion 2 1. Centurion’s Hepatitis C Policies and Procedures 3 Centurion does not use APRI scores to determine Hepatitis C treatment priority. 4 (Doc. 113 ¶ 7.) Instead, the determination for treatment of Hepatitis C is made according 5 to the patient’s fibrosis score. (Id.) Patients with fibrosis scores of F3 and F4 are prioritized 6 for treatment. (Id.) F3 indicates advanced fibrosis, and F4 indicates cirrhosis. (Id.) 7 Centurion will also consider treatment of an F1 or F2 if there is coinfection, such as 8 Hepatitis B or HIV or other co-morbid condition, which increases health risk or may hinder 9 or complicate future treatment of either condition. (Id.) Additionally, patients who are 10 deemed a high priority for treatment based on Fibrosis score will also undergo further 11 workup to assess for underlying cirrhosis, so that a safe and appropriate treatment 12 recommendation can be made. (Id. ¶ 8.) Centurion also has a Hepatitis C Specialist who 13 advises regarding testing and treatment of the higher priority patients, as well as a Hepatitis 14 C Committee to additionally review and assess Hepatitis C infected patients. (Id.) 15 Centurion’s Hepatitis C Clinical Guidelines were last updated April 2020 and its 16 process is similar to the triaging of patients for treatment in the community, matching the 17 most recent Hepatitis C Guidelines by AASLD/IDSA (American Association for the Study 18 of Liver Diseases and Infectious Diseases Society of America); these guidelines were 19 published in May 2018 and revised in Fall 2019, namely the sections relevant to treatment 20 of Hepatitis C that may be deferred, as in the prison setting. (Id. ¶ 10.) Those updated 21 Guidelines center on testing evaluation, counseling, and monitoring in situations like the 22 prison setting, and outline monitoring recommendations for those for whom treatment may 23 be initially deferred, including patients who have lower fibrosis scores or who are in phases 24 of counseling, assessment, and work-up. (Id.) Centurion also follows the ADC Hepatitis 25 C Guidelines, which are consistent with the more detailed updated AASLD/IDSA 26 guidelines for deferred treatment settings. (Id. ¶ 13.) 27 28
department-corrections-director/ (last visited Jan. 19, 2022). 1 The same section of the AASLD guidelines that are specific to the correctional 2 setting were updated in November 2019 and adopted by Centurion. (Id. ¶ 12.) 3 2. Treatment Received Under Centurion 4 On September 19, 2019, Plaintiff submitted an informal complaint stating that he 5 had been needlessly suffering for a long time and had been denied specialty care for his 6 Hepatitis C and was not receiving any treatment due to a policy of monitoring rather than 7 treating his condition. (Doc. 7 at 5 ¶ 6.) Plaintiff requested treatment for his Hepatitis C 8 regardless of the stage of his disease. (Id.) In a September 27, 2019 response, a Centurion 9 staff member stated: “Your concern has been researched including a review of your 10 medical records. I am providing you with the following response: Currently Hep C 11 treatment is prioritization [] based on available resources.” (Id. at 5–6 ¶ 7.) 12 On September 24, 2019, Plaintiff submitted a grievance requesting treatment for his 13 Hepatitis C. (Doc. 7 at 6 ¶ 8.) In a September 30, 2019 response, Facility Health 14 Administrator (FHA) Trina Randall stated that Centurion followed the July 2018 Federal 15 Bureau of Prisons Guidelines and ADC’s Health Services Technical Manual Clinical 16 Practice Guidelines. (Id. at 6 ¶ 9.) Randall stated that both sets of Guidelines provided 17 guidance in prioritizing treatment of Hepatitis C in prisoners based upon their disease stage. 18 (Id.) 19 In October 2019, Plaintiff’s fibrosis score was 0.54, correlating to F2 level and 20 Inflammation Activity grade A1 indicating minimal activity. (Doc. 113 ¶ 14.) 21 On March 6, 2020, Plaintiff underwent an off-site bladder cystoscopy, and the 22 results revealed that Plaintiff’s urethra was “widely open” with no obstructions, but his 23 bladder outlet was “somewhat bulky.” (Doc. 136-3 at 69.) It was recommended for 24 Plaintiff to follow up as needed. (Id.) 25 A repeat Fibrosure test on September 29, 2020 revealed a fibrosis score of 0.53, 26 continuing to correlate to F2 level and again A1 or minimal inflammatory activity. (Doc. 27 113 ¶ 14.) 28 1 Plaintiff was seen in the Chronic Care Clinic again on October 5, 2020; the results 2 of his most recent Fibrosure test were relayed to him, and his medical provider documented 3 her communication with the Hepatitis C Regional Committee regarding Plaintiff’s 4 eligibility for treatment, stating that Plaintiff was not yet prioritized for treatment, but that 5 he could be treated, even if he remains F2, within 2021—specifically, “hopefully we’ll be 6 treating F2’s within the next year.” (Id. ¶ 17.) 7 Plaintiff had abdominal x-rays completed on October 22, 2020, all without 8 significant findings. (Id. ¶ 21.) 9 On November 12, 2020, Plaintiff underwent an abdominal ultrasound, which 10 revealed a normal sized liver at 14.6 cm. with unremarkable echotexture, no hepatic 11 capsular nodularity and no ascites—all which discount presence of significant liver disease 12 or cirrhosis; no masses were identified. (Id. ¶ 25; Doc. 113-1 at 80–81.) 13 On November 17, 2020, the medical provider requested approval for Plaintiff to 14 have an off-site visit to see a gastroenterologist, after presenting the case to a specialist via 15 virtual consultation, wherein the medical provider had discussions with a gastroenterology 16 specialist via RUBICON services available to Centurion’s medical providers at the prison. 17 (Doc. 113 ¶ 26.) The referral to gastroenterology was approved, authorized and scheduled 18 for January 16, 2021. (Id.) 19 On December 30, 2020, Plaintiff was sent to the hospital for investigation of 20 recurrent pain and vomiting; a CT scan of Plaintiff’s abdomen/pelvis showed gallbladder 21 distention associated with mild biliary tree dilatation, and no obstructive bowel patterns. 22 (Id. ¶ 27.) Plaintiff was transferred to a tertiary care center for MRI/MRCP of the abdomen, 23 and the attending physician noted an unremarkable abdominal examination, very mild 24 elevation of liver enzymes consistent with chronic Hepatitis C, but no lab findings 25 indicating cirrhosis, infection or pancreatitis, as pancreatic enzymes were normal. (Id.) 26 An MRI/MRCP of the abdomen was performed on December 31, 2020, which 27 revealed clear lung bases, no focal lesions of the liver, spleen or pancreas, normal adrenal 28 glands and kidneys, no intra-abdominal adenopathy, no gallstones and common bile duct 1 with no filling defect (that would indicate obstruction or retained stone). (Id.) Plaintiff 2 was discharged back to the prison on December 31, 2020, with no indication regarding 3 medical necessity for surgery. (Id. ¶ 28.) 4 On January 16, 2021, Plaintiff was seen by an off-site gastroenterologist who noted 5 Plaintiff’s symptoms, surgical history and concluded that his chronic abdominal pain could 6 be multifactorial; the physician recommended a colonoscopy, further assessments, 7 continued treatment for acid reflux, plans to perform an EGD, and continued treatment for 8 chronic constipation. (Id. ¶ 29.) Plaintiff was scheduled for a colonoscopy and an EGD 9 that same week. (Id.) 10 Plaintiff underwent a colonoscopy on February 17, 2021, and the results showed “a 11 few large-size uncomplicated internal hemorrhoids,” but no polyps or masses. (Doc. 113- 12 1 at 8.) Plaintiff also underwent an EGD that same day, and no abnormalities were found. 13 (Id. at 30.) 14 On March 13, 2021, Plaintiff had an off-site gastroenterology follow up, and it was 15 recommended that he undergo an abdominal CT. (Id. at 63.) A consult request for the 16 abdominal CT was submitted and approved. (Id. at 67–68.) Plaintiff underwent an 17 abdominal CT on April 13, 2021, and the following findings were noted: “1. Postoperative 18 changes from prior partial gastrectomy and anastomosis with the jejunum in the left upper 19 quadrant. No evidence of recurrent disease or corn plication. 2. Ectasia of the common 20 bile duct and gallbladder, unchanged and without evidence of acute Larry disease.” (Id. at 21 70.) Notably, Plaintiff’s liver was documented as “unremarkable.” (Id. at 69.) 22 Plaintiff had a chronic care appointment for his Hepatitis C on March 23, 2021, and 23 his liver enzyme levels were within normal limits. (Id. at 75.) 24 On May 4, 2021, Plaintiff underwent an abdominal ultrasound, and it showed 25 “[f]ibrofatty changes of the liver,” but “[n]o focal mass identified.” (Doc. 113-2 at 42.) 26 On August 17, 2021, Plaintiff underwent a Fibrosure test, and his fibrosis score was 27 documented as “above high normal” at 0.66, or stage F3. (Doc. 132-2 at 65, 68.) Plaintiff’s 28 1 necroinflammatory activity score, which measures liver inflammation, was documented as 2 “above high normal” at 0.40, which indicates minimal/moderate inflammation. (Id.) 3 Without specifying a particular date, Plaintiff asserts that “[m]ost recently,” 4 Defendant Igwe informed Plaintiff that he was not a candidate for treatment. (Doc. 7 at 6 5 ¶ 11.) Plaintiff asked her to “advocate for [him]” and submit a request for treatment, but 6 she refused. (Id.) Plaintiff asserts that both Defendants Igwe and Starling told him that he 7 had to be close to liver failure or death before they would consider advocating for and 8 treating him. (Id. at 13 ¶ 2.) Defendant Igwe has told Plaintiff that under Corizon and 9 Centurion’s policies, he could not receive treatment, enhanced testing such as a baseline 10 workup, or a liver biopsy. (Id. at 13 ¶ 1.) According to Plaintiff, on some unspecified date, 11 Defendant Starling told him that his Hepatitis C labs reflect abnormally high levels of liver 12 enzymes reflecting his worsening Hepatitis C status and liver damage. (Id. at 13 ¶ 4.) 13 IV. Discussion 14 A. Governing Standard 15 Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 16 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 17 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two 18 prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 19 First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 20 omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could 21 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 22 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds 23 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 24 citation omitted). Examples of a serious medical need include “[t]he existence of an injury 25 that a reasonable doctor or patient would find important and worthy of comment or 26 treatment; the presence of a medical condition that significantly affects an individual’s 27 daily activities; or the existence of chronic and substantial pain.” McGuckin, 974 F.2d at 28 1059-60. 1 Second, a prisoner must show that the defendant’s response to that need was 2 deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference 3 if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the 4 knowledge component, the official must both be aware of facts from which the inference 5 could be drawn that a substantial risk of serious harm exists, and he must also draw the 6 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 7 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 8 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 9 Cir. 2002) (internal citations and quotation marks omitted), or when they fail to respond to 10 a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. Deliberate indifference 11 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. 12 Farmer, 511 U.S. at 835. “Neither negligence nor gross negligence will constitute 13 deliberate indifference.” Clement v. California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105 14 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) 15 (mere claims of “indifference,” “negligence,” or “medical malpractice” do not support a 16 claim under § 1983). “A difference of opinion does not amount to deliberate indifference 17 to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 18 A mere delay in medical care, without more, is insufficient to state a claim against prison 19 officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm’ rs, 20 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must 21 rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 22 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 23 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see 24 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing medical 25 treatment does not constitute Eighth Amendment violation unless delay was harmful). 26 Additionally, to prevail on a claim against Corizon and Centurion as private entities 27 serving a traditional public function, or against Defendant Shinn in his official capacity, 28 Plaintiff must meet the test articulated in Monell v. Dep’t of Social Services of City of New 1 York, 436 U.S. 658, 690-94 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 2 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state law). 3 Accordingly, Plaintiff must show that an official policy or custom caused the constitutional 4 violation. Monell, 436 U.S. at 694. To make this showing, he must demonstrate that (1) he 5 was deprived of a constitutional right; (2) Corizon, Centurion, or Shinn had a policy or 6 custom; (3) the policy or custom amounted to deliberate indifference to Plaintiff’s 7 constitutional right; and (4) the policy or custom was the moving force behind the 8 constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 9 F.3d 1101, 1110-11 (9th Cir. 2001). Further, if the policy or custom in question is an 10 unwritten one, the plaintiff must show that it is so “persistent and widespread” that it 11 constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting 12 Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). “Liability for improper custom 13 may not be predicated on isolated or sporadic incidents; it must be founded upon practices 14 of sufficient duration, frequency and consistency that the conduct has become a traditional 15 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 16 B. Serious Medical Need 17 There is no dispute that Plaintiff has Hepatitis C. Further, the available medical 18 records show that Plaintiff’s condition is “worthy of comment or treatment[,]” including 19 chronic care appointments, routine blood testing, and abdominal imaging. See McGuckin, 20 974 F.2d at 1059-60. Thus, this record supports the finding of a serious medical need. The 21 Court will therefore consider whether Defendants’ actions amounted to deliberate 22 indifference. 23 C. Deliberate Indifference 24 1. Defendant Igwe 25 The record shows that Defendant Igwe had several encounters with Plaintiff 26 between September 2018 and May 2019, during which Plaintiff frequently complained of 27 constipation, abdominal pain, and nausea. (Doc. 122 ¶¶ 33, 35, 37–39.) The record also 28 shows that Plaintiff’s pancreatic enzymes became elevated in or around February 2019. 1 (Id. ¶ 37.) In response to Plaintiff’s complaints, Defendant Igwe prescribed constipation 2 medications and submitted requests for an offsite abdominal ultrasound, which were 3 ultimately denied by Utilization Management. (Id. ¶¶ 35, 37–38.) However, the evidence 4 does not show that Defendant Igwe consistently monitored Plaintiff’s liver enzyme levels 5 or his APRI score. Notably, the only time Plaintiff’s APRI score was documented during 6 his multiple encounters with Defendant Igwe was on November 6, 2018, when his APRI 7 score was noted as 0.9—a score that, under the Clinical Practice Guidelines, may have 8 prioritized Plaintiff for treatment (Doc. 122 at 154; Doc. 122 ¶ 28.) Defendant Igwe saw 9 Plaintiff several times after this date, and Plaintiff’s APRI score and liver enzyme levels 10 were not documented in any of her subsequent encounter notes, despite Plaintiff’s repeated 11 complaints of constipation, abdominal pain, and nausea, and despite the APRI score being 12 the primary means of determining Hepatitis C prioritization at that time. Notably, there is 13 no evidence that Defendant Igwe ordered Hepatitis C labs after Utilization Management 14 repeatedly denied consult requests for an abdominal ultrasound based on “lack of medical 15 necessity” even though Plaintiff was experiencing chronic abdominal pain. (Id. ¶¶ 35, 41.) 16 On these facts, a reasonable jury could find that Defendant Igwe failed to consistently 17 monitor Plaintiff’s Hepatitis C status and that this failure amounted to deliberate 18 indifference where Defendant Igwe was aware of Plaintiff’s frequent complaints of 19 constipation, abdominal pain, and nausea. Accordingly, there is a genuine question of 20 material fact as to whether Defendant Igwe deliberately disregarded Plaintiff’s serious 21 medical need by not adequately monitoring his Hepatitis C between September 2018 and 22 May 2019, and summary judgment will be denied as to Defendant Igwe regarding the care 23 she provided during that time. 24 However, the record does not support a deliberate indifference claim regarding the 25 care Defendant Igwe provided to Plaintiff after Centurion took over as the private 26 healthcare provider in July 2019. As the Court discusses in further detail below, the facts 27 show that Plaintiff’s Hepatitis C was consistently monitored by Centurion, and the 28 available evidence does not show that Defendant Igwe deliberately disregarded Plaintiff’s 1 serious medical need after Centurion took over in July 2019. Plaintiff’s vague references 2 to encounters with Defendant Igwe that took place on unspecified dates are not sufficient 3 to create a triable issue as to whether Defendant Igwe deliberately disregarded his serious 4 medical need after July 2019. Accordingly, summary judgment will be granted to 5 Defendant Igwe as to the care she provided after July 2019 while working for Centurion. 6 2. Defendant Starling 7 The evidence does not support an Eighth Amendment claim against Defendant 8 Starling. Plaintiff’s medical records show that his only encounter with Defendant Starling 9 occurred on June 28, 2019, during which Plaintiff requested to renew his medical diet, and 10 Defendant Starling noted that Plaintiff’s diet was active through December. (Doc. 122 11 ¶ 42.) Plaintiff reported to Defendant Starling that his current medication, Colace and 12 Lactulose, were helping his constipation, and that he was having daily bowel movements, 13 but said he did not feel he was emptying bowels fully. (Id.) Defendant Starling 14 documented that Plaintiff’s gastrointestinal issues were due to a prior gunshot wound. (Id.) 15 Defendant Starling noted that Plaintiff had a non-tender abdomen and positive bowel 16 sounds. (Id.) She then referred Plaintiff to the provider, educated him to take all 17 medications as prescribed, maintain good hydration, increase fluids, told him to notify 18 security of urgent symptoms, and to submit Health Need Requests (HNRs) as needed. (Id.) 19 These facts do not amount to a deliberate disregard of Plaintiff’s serious medical 20 need. Even taking as true Plaintiff’s assertion that on some unspecified date, Defendant 21 Starling told him that he had to be close to liver failure or death before he would be 22 considered for Hepatitis C treatment, even if his labs showed abnormally high levels of 23 liver enzymes (see Doc. 7 at 13 ¶¶ 2, 4.), this did not amount to deliberate indifference 24 where there is no evidence in the record to show that Plaintiff’s liver enzymes were 25 elevated at the time he was seen by Defendant Starling, or that at the time Defendant 26 Starling saw Plaintiff, she had reason to believe that Plaintiff had advanced fibrosis and/or 27 cirrhosis and that she failed to respond appropriately. Instead, the record shows that 28 Plaintiff had a single encounter with Defendant Starling and that she referred him to the 1 provider for further evaluation. On this record, Defendant Starling’s response to Plaintiff’s 2 serious medical need did not amount to deliberate indifference, and Defendant Starling will 3 be dismissed from the action. 4 3. Defendant Corizon 5 As discussed above, the Court has determined that there exist material factual 6 disputes as to whether Defendant Igwe violated Plaintiff’s constitutional right to sufficient 7 medical treatment between September 2018 and May 2019 while he was under Corizon’s 8 care. The Court must therefore determine whether Corizon had a deliberately indifferent 9 policy, practice or custom that was the moving force behind the constitutional violation. 10 A policy is “a deliberate choice to follow a course of action” made by the officials 11 or entity “responsible for establishing final policy with respect to the subject matter in 12 question.” Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992). A policy can be one of 13 action or inaction. Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 14 A “custom” for purposes of municipal liability is a “widespread practice that, 15 although not authorized by written law or express municipal policy, is so permanent and 16 well-settled as to constitute a custom or usage with the force of law.” St. Louis v. 17 Praprotnik, 485 U.S. 112, 127 (1988). A plaintiff must show that the challenged action is 18 the “standard operating procedure” of the municipality. Price v. Sery, 513 F.3d 962, 966 19 (9th Cir. 2008) (internal quotation omitted). “Liability for improper custom may not be 20 predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient 21 duration, frequency and consistency that the conduct has become a traditional method of 22 carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). While one or 23 two incidents are insufficient to establish a custom or practice, the Ninth Circuit has not 24 established what number of similar incidents would be sufficient to constitute a custom or 25 policy. See Oyenik v. Corizon Health Inc., No. 15-16850, 2017 WL 2628901, at *2 (9th 26 Cir. June 19, 2017) (a reasonable jury could conclude that at least a dozen instances of 27 defendant Corizon denying or delaying consultations and radiation treatment for cancer 28 patient over a year amounts to a custom or practice of deliberate indifference) (citing Oviatt 1 By & Through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992)). But “[t]here is no 2 case law indicating that a custom cannot be inferred from a pattern of behavior toward a 3 single individual.” Id. 4 Here, the record shows that Plaintiff made frequent complaints of abdominal pain, 5 constipation, and nausea while he was under Corizon’s care. But the available evidence 6 does not indicate that Plaintiff’s APRI score and liver enzymes were consistently 7 monitored or documented during the relevant time, even though the Hepatitis C protocol 8 at that time relied on these indicators to prioritize prisoners for Hepatitis C treatment and 9 to monitor prisoners for potential progression into advanced fibrosis and/or cirrhosis. 10 Plaintiff’s Corizon medical records do not contain any reference to his APRI score after 11 his November 6, 2018 appointment with Defendant Igwe even though he had several 12 appointments after that date and continued to complain of abdominal pain, constipation, 13 and nausea. Notably, Corizon Utilization Management ATP’d multiple requests for an 14 abdominal ultrasound submitted by Plaintiff’s treating providers despite Plaintiff’s 15 frequent complaints of chronic abdominal pain, constipation, and nausea, and even after 16 acknowledging that Plaintiff’s elevated amylase could be “due to multiple issues including 17 liver disease[.]” (Doc. 122 ¶ 32.) On this evidence, a reasonable jury could infer that 18 Corizon had a custom or practice of failing to properly monitor Hepatitis C progression in 19 patients under its care. See Colwell v. Bannister, 763 F.3d 1060, 1069 (9th Cir. 2014) 20 (denying summary judgment where prison officials “ignored the recommendations of 21 treating specialists and instead relied on the opinions of non-specialist and non-treating 22 medical officials who made decisions based on an administrative policy”); Snow v. 23 McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (where the treating physician and specialist 24 recommended surgery, a reasonable jury could conclude that it was medically unacceptable 25 for the non-treating, non-specialist physicians to deny recommendations for surgery), 26 overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 27 2014). 28 1 Moreover, a policy or custom is deliberately indifferent when its inadequacy is 2 obvious and likely to result in the violation of a constitutional right. City of Canton v. 3 Harris, 489 U.S. 378, 390 (1989). Whether an entity has a policy of deliberate indifference 4 is generally a jury question. Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1194–95 (9th Cir. 5 2002). In this instance, a reasonable jury could find that a policy, practice, or custom of 6 inadequately monitoring and documenting relevant medical indicators in Hepatitis C 7 patients is obviously inadequate to address individual prisoners’ various medical needs and 8 their potential development of advanced fibrosis and/or cirrhosis, and such a policy, 9 practice, or custom could result in the violation of prisoners’ constitutional rights. 10 Accordingly, there exists a triable issue of fact whether the Corizon’s policy amounted to 11 deliberate indifference. 12 Finally, a policy or custom is the moving force behind a constitutional violation 13 when it is “closely related to the ultimate injury” and when the plaintiff can “establish that 14 the injury would have been avoided had proper policies been implemented.” Long, 442 15 F.3d at 1190 (9th Cir. 2006) (internal quotation marks omitted). In light of the evidence 16 discussed above, there is a question of fact whether Plaintiff’s chronic abdominal pain 17 would have been avoided had there been a practice or policy of adequately monitoring 18 patients Hepatitis C indicators. 19 In short, there is sufficient probative evidence in the record to create a triable issue 20 whether Corizon is liable under § 1983 for a violation of Plaintiff’s constitutional rights, 21 and summary judgment as to Corizon will be denied. 22 4. Defendants Shinn and Centurion 23 On this record, the evidence shows that Plaintiff received constitutionally adequate 24 treatment for his Hepatitis C while under the care of Defendants Shinn and Centurion. 25 Specifically, the facts show that in October 2019 Plaintiff’s fibrosis score was 0.54, 26 correlating to F2 level and Inflammation Activity grade A1 indicating minimal activity. 27 (Doc. 113 ¶ 14.) A repeat Fibrosure test on September 29, 2020 revealed a fibrosis score 28 of 0.53, continuing to correlate to F2 level and again A1 or minimal inflammatory activity. 1 (Id.) Moreover, while under Centurion’s care, Plaintiff was sent offsite to undergo an 2 abdominal ultrasound in November 2020; an abdominal CT scan and abdominal 3 MRI/MRCP in December 2020; a colonoscopy and an EGD in February 2021; and repeat 4 abdominal ultrasounds in April and May 2021; the results of these assessments revealed an 5 otherwise unremarkable liver and did not indicate significant liver disease, cirrhosis, or any 6 other abnormalities relevant to Plaintiff’s Hepatitis C diagnosis. (Id. ¶¶ 25, 27; Doc. 113- 7 1 at 8, 30, 69, 70, 80–81; Doc. 113-2 at 42.) Additionally, Plaintiff had a chronic care 8 appointment for his Hepatitis C on March 23, 2021, and his liver enzyme levels were within 9 normal limits. (Id. at 75.) 10 These facts do not indicate a deliberate disregard for Plaintiff’s Hepatitis C or that 11 Defendant Centurion’s response to Plaintiff’s serios medical need was medically 12 inappropriate. Construing the facts in Plaintiff’s favor, his most recent Fibrosure test 13 results from August 2021 indicated an elevated fibrosis score (F3) and “above high normal” 14 inflammatory activity. (Doc. 132-2 at 65, 68.) But patients with fibrosis scores of F3, must 15 still undergo further evaluation to assess for underlying cirrhosis, and there is no evidence 16 that Centurion disregarded Plaintiff’s elevated fibrosis score or stopped monitoring his 17 condition. (Doc. 113 ¶ 8.) Further, Plaintiff’s most recent abdominal imaging from April 18 and May 2021 did not indicate cirrhosis or advanced fibrosis, so requiring Plaintiff to 19 undergo additional evaluation and review by the Hepatitis C specialist and/or Hepatitis C 20 Committee before approving him for treatment would not amount to a deliberate disregard 21 of his serious medical otherwise be a medically inappropriate plan of care. 22 For the foregoing reasons, the first element of the Monell analysis is not supported 23 by the record as to Plaintiff’s treatment while he was under Defendants Shinn and 24 Centurion’s care, and summary judgment will be granted to Defendants Shinn and 25 Centurion. 26 IT IS ORDERED: 27 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 28 Motions for Summary Judgment (Docs. 120, 121). 1 | (2) Defendants Centurion, Igwe, and Shinn’s Motion for Summary Judgment 2 | (Doc. 120) is granted. 3 | (3) Defendants Corizon, Igwe, and Starling’s Motion for Summary Judgment 4 | (Doc. 121) is granted as to Plaintiff's medical care claim against Defendant Starling, and 5 | denied as to all other claims. 6 | (4) Defendants Centurion, Shinn, and Starling are dismissed with prejudice. 7 | (5) Plaintiff's medical care claim against Defendant Igwe is dismissed with 8 | prejudice as to the medical care Plaintiff received from Defendant Igwe after June 30, 9 | 2019. 10 | (6) The only claims remaining in this action are Plaintiff's medical care claim 11 | against Corizon and his medical care claim against Defendant Igwe regarding the medical 12 | care Defendant Igwe provided to Plaintiff prior to July 1, 2019. 13 | (7) This action is referred to Magistrate Judge Camille D. Bibles to conduct a 14 | settlement conference as to Plaintiff's remaining claims. 15 | (8) Defense counsel shall arrange for the relevant parties to jointly call 16 | Magistrate Judge Bible’s chambers at (928) 774-2566 within 14 days to schedule a date 17 | for the settlement conference. 18 | (9) The parties must file a joint status report within 14 days following the 19 | settlement conference, if it is not successful, proposing dates for a trial setting conference. 20 | Dated this 21st day of January, 2022. 21 | | Mk Lo. ‘chad T. Gihuade Michael T. Liburdi 24 | United States District Judge 25 | 26 | 27 | 28 |