Bossardet v. Centurion Healthcare

Opinion

1 WO 2

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10

11 Arron Shawn Bossardet, No. CV-21-00179-TUC-RM 12 Plaintiff, ORDER 13 v. 14 Centurion Healthcare, et al., 15 Defendants. 16

17 Pending before the Court are Plaintiff’s Second Motion for Leave to File Motion 18 to Compel Indexes (Doc. 176), Plaintiff’s Motion to Stay Expert Disclosure (Doc. 177), 19 and Plaintiff’s Motion to Supplement Complaint (Doc. 179).1 The Motions are fully 20 briefed and will be resolved as follows. 21 I. Background 22 Plaintiff Arron Shawn Bossardet—who was initially proceeding pro se but is now 23 represented by counsel—brought this civil rights action pursuant to 42 U.S.C. § 1983, 24 asserting Eighth Amendment medical care claims against multiple Defendants. (Doc. 17.) 25 The parties are currently engaged in discovery. 26 . . . . 27 . . . . 28 1 Other pending motions will be resolved separately. 1 II. Second Motion for Leave to File Motion to Compel Indexes 2 On July 13, 2022, the Court issued an order denying Plaintiff’s first Motion for 3 Leave to File Motion to Compel Indexes. (Doc. 176.) The Court denied Plaintiff’s 4 Motion because it found that (1) Fed. R. Civ. P. 26 did not require disclosure of the 5 indexes of Plaintiff’s medical records and (2) Plaintiff had not provided a legal basis for 6 ordering their disclosure. (Id.) Plaintiff now moves for leave to file a renewed Motion to 7 Compel Indexes; the proposed Motion raises new legal arguments and asserts additional 8 grounds for the disclosure he seeks. (Doc. 176-1.) Defendant Centurion opposes the 9 Motion, arguing that it should be denied for the same reasons the first Motion to Compel 10 was denied, and requests that if the Court allows the Motion to Compel, it be allowed an 11 opportunity to respond. (Doc. 182.) Having considered the parties’ previous attempts to 12 resolve this discovery dispute and the proposed Second Motion to Compel, the Court will 13 grant leave to file the Motion. 14 III. Motion to Stay Expert Disclosure 15 Plaintiff moves to stay the expert disclosure deadline until after the pending 16 discovery dispute regarding Plaintiff’s medical records is resolved. (Doc. 177.) Plaintiff 17 avers that he has hired an expert and provided the expert with the documents he has in his 18 possession; however, the completeness and accuracy of those documents remains in 19 question considering the ongoing discovery dispute regarding his medical records. (Id.) 20 Defendant Centurion opposes the Motion to Stay but stipulates to a thirty-day extension 21 of all remaining discovery deadlines. (Doc. 184.) In reply, Plaintiff avers that his expert’s 22 opinion will be incomplete without the records that are the subject of the Motion to 23 Compel and argues that an extension will not prejudice Defendant. (Doc. 188.) The Court 24 will deny the Motion to Stay as moot in light of the September 13, 2022 Order extending 25 the remaining deadlines in this matter. (Doc. 198.) 26 . . . . 27 . . . . 28 . . . . 1 IV. Motion to Supplement Complaint 2 Plaintiff seeks leave to supplement his First Amended Complaint (“FAC”) filed on 3 October 13, 2021. (Doc. 17.) The FAC states three claims against ten Defendants. (Id.)2 4 In Count One, Plaintiff states an Eighth Amendment medical claim against Defendants 5 Centurion, Riley, Hodge, Graybill, Alanso, Ferguson, Hines, Salgado, Elliott, and Shinn. 6 (Doc. 16.) In Count Two, Plaintiff states a First Amendment claim against Defendants 7 Riley, Hodge, and Hines. (Id.) In Count Three, Plaintiff states an Eighth Amendment 8 medical claim against Defendants Centurion and Shinn. (Id.) Plaintiff’s proposed 9 Supplemental Complaint alleges claims based on events that occurred between the filing 10 of the FAC and June 30, 2022, when Dr. Neal recommended that Plaintiff receive 11 fundoplication surgery. (Doc. 179.) Plaintiff’s Reply clarifies that the events that are the 12 subject of the proposed Supplemental Complaint occurred between April 18, 2022 and 13 June 30, 2022. (Doc. 192.) Plaintiff avers that these additional events and claims are 14 directly related to the operative Complaint and thus are essential for resolution of this 15 action. (Doc. 179.) 16 In response, Defendants argue that Plaintiff’s Motion (1) is untimely as the 17 deadline to amend pleadings or add parties has passed and (2) offers no legal basis for 18 granting the Motion to Supplement. (Doc. 189.) Defendant argues that Plaintiff’s delay in 19 filing the Motion and the prejudice of adding three new Defendants at this stage in the 20 litigation warrant denial of the Motion to Supplement. (Id.) 21 A. Supplemental Complaint 22 The supplemental facts and claims concern Count III. (Doc. 179-1 at 40-48.)3 23 Plaintiff’s Supplemental Complaint adds three Defendants to Count III: Isabella 24 Waszkiewicz, NP, J. Hinkley, RN, and Murray Young, MD, Centurion’s Associate

25 2 The Court dismissed Defendant Headstream and Count Four in its October 12, 2021 Order screening the FAC. (Doc. 16.) 26 3 The proposed Supplemental Complaint also includes the original allegations of Plaintiff’s FAC, including allegations related to defendants and counts—such as 27 Defendant Headstream and Count IV—that the Court dismissed in its October 12, 2021 Order screening Plaintiff’s FAC. (Doc. 16.) As Plaintiff does not allege any supplemental 28 facts or claims related to dismissed defendants or counts, the Court assumes that the inclusion of such allegations was an oversight. 1 Regional Medical Director. (Id.) Plaintiff suffers from symptoms of Gastro Esophageal 2 Reflux Disease (“GERD”). (Id. at 41.) Plaintiff alleges that in December 2021, he 3 submitted a Health Needs Request (“HNR”) requesting that the results of a March 2021 4 esophagram be sent to his treating gastroenterologist, Dr. Khan. (Id. at 44.) Plaintiff avers 5 that on December 28, 2021, in response to his HNR, NP Mary Redwine placed a request 6 for him to see Dr. Khan. (Id.) On February 14, 2022, Plaintiff submitted an HNR seeking 7 a refill of Pepto-Bismol chews. (Id.) On March 4, 2022, Plaintiff had an appointment with 8 Dr. Khan, who diagnosed GERD and severe regurgitation and recommended that 9 Plaintiff continue his current medication and follow up with a surgeon for Nissen 10 fundoplication surgery. (Id.) 11 On March 11, 2022, Isabella Waszkiewicz, NP, who was Plaintiff’s treating 12 provider at the time, placed a consultation request to have Plaintiff see a “gastro surgeon” 13 at Dr. Khan’s recommendation. (Id. at 44-45.) On March 17, 2022, Plaintiff—after 14 suffering severe heartburn for seven days—placed an expedited HNR requesting a blood 15 test for a stomach infection. (Id. at 45.) On March 18, 2022, J. Hinkley, RN, processed 16 that HNR. (Id.) Hinkley did not see Plaintiff in the medical clinic or schedule him for a 17 consultation with a provider but provided a written response stating in part that Plaintiff 18 was receiving medication for GERD and a bed wedge. (Id.) Also on March 18, 2022, 19 Murray Young, MD, denied NP Waszkiewicz’s request that Plaintiff be evaluated for 20 Nissen fundoplication surgery based on Dr. Khan’s recommendation, and recommended 21 instead that NP Waszkiewicz implement an “alternative treatment plan” (“ATP”) 22 consisting of educating Plaintiff. (Id. at 45-46.) On March 21, 2022, NP Waszkiewicz 23 accepted the ATP and had a consultation with Plaintiff, who provided her with a letter 24 describing his symptoms. (Id. at 46.) NP Waszkiewicz informed Plaintiff at that 25 consultation that he would not receive the Nissen fundoplication surgery because it was 26 too dangerous and that she would prescribe him a diet. (Id.) However, she did not 27 prescribe a change of diet. (Id.) 28 1 On March 31, 2022, Plaintiff submitted an HNR seeking a refill of Pepto-Bismol 2 chews and although the HNR was processed, he did not receive a refill. (Id.) On May 23, 3 2022, Plaintiff filed an Informal Complaint Resolution stating that he was not receiving 4 his prescribed medication. (Id.) On May 24, 2022, he submitted an HNR stating that he 5 did not have his prescribed Pepto-Bismol chews. (Id.) On May 25, 2022, Dr. Young 6 signed a declaration that stated in part that Plaintiff was taking Celebrex, which could 7 address pain but exacerbate GERD symptoms, and that he would try another medication 8 in a different category. (Id.) Plaintiff avers that Dr. Young never informed him that 9 Celebrex could exacerbate his GERD symptoms, did not discontinue the Celebrex 10 prescription, and did not prescribe any other pain medication. (Id. at 47.) On June 6, 11 2022, Plaintiff had a clinical encounter with NP Hanson, who discontinued the Celebrex 12 prescription. (Id.) 13 On June 17, 2022, the Court granted Plaintiff’s Motion for Preliminary Injunction 14 and ordered Defendant Centurion to immediately schedule Plaintiff to see a surgeon for a 15 consultation regarding his GERD symptoms. (Id.; Doc. 157.) On June 30, 2022, Plaintiff 16 consulted with Dr. Neal, MD, who recommended that Plaintiff move forward with the 17 Nissen fundoplication surgery recommended by Drs. Khan and Wiseman. (Id.) Plaintiff 18 alleges deliberate indifference to his serious medical needs in violation of the Eighth 19 Amendment stemming from NP Waszkiewicz’s, Dr. Young’s, and RN Hinkley’s actions 20 and inactions described above. (Id.) 21 On motion and reasonable notice, the court may, on just 22 terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after 23 the date of the pleading to be supplemented. The court may 24 permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order 25 that the opposing party plead to the supplemental pleading within a specified time. 26 27 Fed. R. Civ. P. 15(d). 28 1 Having reviewed Plaintiff’s proposed Supplemental Complaint and the parties’ 2 arguments, the Court will permit Plaintiff to file his proposed Supplement. The Court 3 does not find that Plaintiff unduly delayed the Motion, nor does the Court find that 4 Defendants Waszkiewicz, Hinkley, and Young will suffer undue prejudice from their 5 addition to this litigation at this stage. Neither discovery nor dispositive motion briefing 6 has been completed, and counsel for Centurion is representing all individually named 7 Defendants in this action. Furthermore, the Court finds that a single lawsuit addressing all 8 of Plaintiff’s relevant medical-related claims is more just and efficient than leaving 9 Plaintiff the sole option of filing a separate lawsuit raising the supplemental claims. The 10 Court will therefore screen the claims raised in the proposed Supplemental Complaint 11 pursuant to 28 U.S.C. § 1915A(a). 12 B. Statutory Screening of Prisoner Complaints 13 The Court is required to screen complaints brought by prisoners seeking relief 14 against a governmental entity or an officer or an employee of a governmental entity. 28 15 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 16 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 17 which relief may be granted, or that seek monetary relief from a defendant who is 18 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 19 A pleading must contain a “short and plain statement of the claim showing that the 20 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 21 not demand detailed factual allegations, “it demands more than an unadorned, the 22 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “Threadbare 23 recitals of the elements of a cause of action, supported by mere conclusory statements, do 24 not suffice.” Id. 25 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 26 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 27 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 28 that allows the court to draw the reasonable inference that the defendant is liable for the 1 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 2 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 3 judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific 4 factual allegations may be consistent with a constitutional claim, a court must assess 5 whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 6 C. Eighth Amendment 7 Not every claim by a prisoner relating to inadequate medical treatment states a 8 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must 9 show (1) a “serious medical need” by demonstrating that failure to treat the condition 10 could result in further significant injury or the unnecessary and wanton infliction of pain, 11 and (2) that the defendant’s response was deliberately indifferent. Jett v. Penner, 439 12 F.3d 1091, 1096 (9th Cir. 2006). 13 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 14 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must 15 both know of and disregard an excessive risk to inmate health; “the official must both be 16 aware of facts from which the inference could be drawn that a substantial risk of serious 17 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 18 (1994). Deliberate indifference in the medical context may be shown by a purposeful act 19 or failure to respond to a prisoner’s pain or possible medical need and harm caused by the 20 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 21 prison official intentionally denies, delays, or interferes with medical treatment or by the 22 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 23 97, 104-05 (1976); Jett, 439 F.3d at 1096. 24 Deliberate indifference is a higher standard than negligence or lack of ordinary 25 due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 26 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 27 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 28 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical 1 malpractice” do not support a claim under § 1983). “A difference of opinion does not 2 amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. 3 Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 4 insufficient to state a claim against prison officials for deliberate indifference. See 5 Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The 6 indifference must be substantial. The action must rise to a level of “unnecessary and 7 wanton infliction of pain.” Estelle, 429 U.S. at 105. 8 A suit against a defendant in his or her individual capacity seeks to impose 9 personal liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). 10 For a person to be liable in his or her individual capacity, “[a] plaintiff must allege facts, 11 not simply conclusions, that show that an individual was personally involved in the 12 deprivation of his [or her] civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th 13 Cir. 1998). In contrast, a suit against a defendant in his or her official capacity represents 14 only another way of pleading an action against the entity that employs the defendant., 473 15 Graham U.S. at 165. That is, the real party in interest is not the named defendant but 16 instead the entity that employs the defendant. Id. at 166. To bring a claim against a 17 person in his or her official capacity, a plaintiff must show that the constitutional 18 deprivation resulted from the entity’s policy, custom, or practice. Id.; see also Monell v. 19 Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). 20 The Court finds that Plaintiff has stated an Eighth Amendment medical care claim 21 against Defendants Isabella Waszkiewicz, NP, J. Hinkley, RN, and Murray Young, MD 22 in the proposed Supplemental Complaint. The Court will order those Defendants to 23 respond to the allegations set forth against them in the proposed Supplemental 24 Complaint. 25 Accordingly, 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED: 2 (1) Plaintiff's Second Motion for Leave to File Motion to Compel Indexes (Doc. 176) 3 is granted. Plaintiff shall file his Motion to Compel Indexes within five (5) days 4 of the date this Order is issued. Defendant shall respond within fourteen (14) days 5 of the date the Motion is filed, and Plaintiff may reply within seven (7) days of the 6 filing of Defendant’s response. 7 (2) Plaintiff's Motion to Stay Expert Disclosure Deadline (Doc. 177) is denied as 8 moot. 9 (3) Plaintiff's Motion to Supplement Complaint (Doc. 179) is granted. Within five 10 (5) days of the date this Order is filed, Plaintiff shall file a Second Amended 11 Complaint that includes the claims and Defendants listed in the First Amended 12 Complaint (Doc. 17) as well as the claims and Defendants added in the 13 Supplemental Complaint as discussed herein. The Second Amended Complaint 14 shall not include Count IV, Defendant Headstream, or any other Counts or 15 Defendants that have previously been dismissed. Plaintiff shall serve the Second 16 Amended Complaint on Defendants Waszkiewicz, Hinkley, and Young, and 17 Defendants Waszkiewicz, Hinkley, and Young shall respond to the supplemental 18 allegations of Count Three of the Second Amended Complaint, pursuant to the 19 applicable Federal Rules of Civil Procedure. 20 Dated this 20th day of September, 2022. 21 22

Honorable Rostsiary □□□□□□□ 25 United States District □□□□□ 26 27 28

-9-