Gutierrez-Valencia 091102 v. Ryan

Opinion

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Luis Gutierrez-Valencia, No. CV 20-00376-PHX-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 14 Defendants.

15 16 On February 18, 2020, Plaintiff Luis Gutierrez-Valencia, who is confined in the 17 Arizona State Prison Complex-Eyman in Florence, Arizona, filed a “Request for 18 Acceptance of Non-Authorized Forms and/or Complaint and/or Waivers Requests for 19 Plaintiff,” lodged a pro se civil rights Complaint, and filed an Application to Proceed In 20 Forma Pauperis. In a February 26, 2020 Order, the Court denied the Request for 21 Acceptance, granted the Application to Proceed, and gave Plaintiff thirty days to file a 22 complaint on a court-approved form. 23 On March 26, 2020, Plaintiff filed his Complaint. In an April 8, 2020 Order, the 24 Court dismissed the Complaint because it did not comply with Rule 8 of the Federal Rules 25 of Civil Procedure. The Court gave Plaintiff thirty days to file an amended complaint that 26 cured the deficiencies identified in the Order.1 27

28 1 In a May 19, 2020 Order, the Court denied Plaintiff’s May 7, 2020 Objection to the Court’s April 8, 2020 Order. 1 Plaintiff requested and received an extension of time to file his first amended 2 complaint. On May 28, 2020, Plaintiff filed a First Amended Complaint (Doc. 16). The 3 Court will order Defendants Ryan, Shinn,2 Pratt, and Corizon to answer Count One of the 4 First Amended Complaint and will dismiss Defendant Smith and Count Two. 5 I. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 25

26 2 As to the claim against Defendant Ryan in his official capacity only, the Court will 27 substitute the current Director of the Arizona Department of Corrections, David Shinn. See Fed. R. Civ. P. 25(d) (permitting the court to order substitution of a public officer who is a 28 party in an official capacity when the party ceases to hold office while the action is pending). 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 6 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 7 U.S. 89, 94 (2007) (per curiam)). 8 II. First Amended Complaint 9 In his two-count First Amended Complaint, Plaintiff sues Defendants Corizon, 10 Arizona Department of Corrections (ADC) former Director Charles L. Ryan, Deputy 11 Director Richard Pratt, and Assistant Facility Health Care Administrator M. Smith in their 12 individual and official capacities. 13 In Count One, Plaintiff alleges a violation of the Eighth Amendment prohibition 14 against cruel and unusual punishment relating to his medical care. Plaintiff claims he was 15 diagnosed in 2018 with inguinal and ventral hernias that were causing severe pain and other 16 complications, but he had to wait more than five months to obtain any sort of hernia 17 aids. (Doc. 16 at 3, 6-7.)3 He alleges the hernia aids he eventually received did not correct 18 his condition. (Id. at 7.) Plaintiff contends “the medical standard of care for a patient with 19 a symptomatic hernia is surgical repair as soon as possible after detection,” but a physician 20 told him that him that due to Defendant Corizon’s policy, Plaintiff would not get a hernia 21 surgery, regardless of his pain and other symptoms, because his hernias were reducible 22 and, therefore, surgery was elective. (Id. at 3, 7, 11.) The physician allegedly told Plaintiff 23 that unless there was an emergency, Plaintiff would have to wait until the hernias became 24 non-reducible or “breaks/bursts through the wall.” (Id. at 11.) Plaintiff contends he 25 subsequently saw another physician, who told Plaintiff that she would recommend a 26 27

28 3 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 consultation with a hernia specialist even though Defendant Corizon “would more th[a]n 2 likely deny her request.” (Id.) 3 Plaintiff asserts that pursuant to Defendant Corizon’s policy, a hernia surgery is 4 considered elective if the hernia is reducible, regardless of whether a patient has other 5 symptoms or surgery will alleviate a serious medical need. (Id. at 6-7.) Plaintiff claims 6 that basing the decision to perform surgery on whether the hernia is reducible, irrespective 7 of other symptoms, falls far below the acceptable medical standard of care. (Id. at 7.) 8 Plaintiff claims Defendant Corizon’s policy prevented or delayed his surgery for almost 9 two years, during which he was in terrible pain, his condition worsened, his complications 10 and health risks increased, and his daily living was restricted. (Id. at 6-7, 11.) He alleges 11 that during this time, routine activities such as walking, running, lifting, coughing, 12 urinating, defecating, or sitting up “caused the tissue to bulge out of [his] abdom[inal] wall 13 and/or groin area[,] causing intense [and] excruciating pain.” (Id. at 7.) He also contends 14 “his stomach lin[]ing continued to rip both upper quadrant [and] right lower inguinal 15 hernias”; he had cramps, sharp pains, groin pain, a loss of sleep, and other complications; 16 his intestines “started going into his testicles”; and he had a bowel obstruction so severe 17 that an emergency medical Incident Command System was activated and he was taken to 18 the medical department on a stretcher. (Id. at 4, 7.) 19 Plaintiff contends Defendant Ryan had a non-delegable duty to provide 20 constitutionally adequate medical care to prisoners under his care, knew about Defendant 21 Corizon’s failure to provide adequate healthcare and its policy, but failed to act and allowed 22 Defendant Corizon’s misconduct to continue by repeatedly renewing Defendant Corizon’s 23 contract. (Id. at 3.) He alleges Defendant Ryan did this “because of a prison for profit 24 mentality [and] environment and [a] broken health care system within AD[]C.” (Id.) 25 Plaintiff also claims he wrote to Defendant Ryan directly for help, it was within Defendant 26 Ryan’s power to help him, but Defendant Ryan failed to respond or act, despite the fact 27 that Plaintiff was suffering extreme pain and Defendant Ryan knew that delaying or failing 28 to provide the hernia surgeries would leave Plaintiff in excruciating pain and at risk for 1 serious complications. (Id. at 3-4.) Plaintiff asserts that because of Defendant Ryan’s 2 inaction, he suffered daily as his condition worsened. (Id. at 4.) 3 Plaintiff contends Defendant Pratt also had a responsibility to provide adequate 4 medical care and to ensure Defendant Corizon’s performance, and had the knowledge, 5 power, and authority to “correct the wrong,” but failed to do so. (Id. at 4-5.) He claims 6 Defendant Pratt encouraged “wide-spread syst[e]mic failures” by continuing to renew 7 Defendant Corizon’s contract despite knowing, since 2013, that Defendant Corizon was 8 failing to provide adequate medical care. (Id. at 5.) Plaintiff alleges Defendant Pratt 9 neglected prisoner medical care for monetary gain, claiming Defendant Pratt stated that 10 although he was not satisfied with Defendant Corizon’s performance, he was afraid to lose 11 their business, he did not want to push Defendant Corizon too hard because he was 12 concerned Defendant Corizon might terminate its contract instead of providing adequate 13 medical care, and he felt it was a “smart business decision” to extend Defendant Corizon’s 14 contract. (Id.) 15 Plaintiff claims Defendant Smith is responsible for processing, responding to, and 16 resolving informal complaints and grievances, and had the power to approve Plaintiff’s 17 requested relief, but did not do so. (Id. at 8.) Plaintiff asserts that in a March 18, 2018 18 grievance response, Defendant Smith stated that based on current policy, hernia repair is 19 considered “elective” unless the hernias are non-reducible, extend into the scrotal sac, and 20 interfere with activities of daily living, and Plaintiff did not meet these criteria. (Id. at 8-9.) 21 Plaintiff contends this decision was made without Plaintiff being seen by Defendants and 22 without regard to Plaintiff’s other symptoms and severe pain. (Id. at 9.) 23 Plaintiff claims he filed inmate letters and grievances and wrote to ADC’s Central 24 Office. (Id. at 5.) He alleges Defendants “failed to correct the wrong” because they 25 delayed, denied, and failed to recommend, approve, or provide hernia surgery or a 26 consultation with a hernia specialist, without delay. (Id. at 8.) Plaintiff contends 27 Defendants, despite being aware of Plaintiff’s symptoms, pain and suffering, and serious 28 medical needs, acted with deliberate indifference, disregarded Plaintiff’s medical needs 1 and the physician’s recommendation, relied on Defendant Corizon’s unconstitutional 2 policy, and decided not to provide a workable pain management plan or recommend a 3 hernia consultation. (Id. at 4, 8.) He claims that as a result, he suffered with daily pain 4 from a double hernia that interfered with his daily activities. (Id. at 8.) 5 Plaintiff alleges ADC and Corizon have a policy, practice, and custom of failing to 6 provide adequate medical care, delaying or denying medical care, and acting with 7 negligence because they will not provide consultations and surgery for inmates suffering 8 from painful hernias, except in emergency situations, regardless of the inmate’s severe 9 daily pain. (Id. at 10.) Plaintiff claims these policies prevent medical professionals from 10 exercising their medical judgment, which has resulted in the delay or denial of a hernia 11 consultation, surgery, and special needs orders for Plaintiff. (Id.) He contends this left him 12 in severe pain, placed him at risk of serious complications, and prevented him from 13 participating in normal activities. (Id.) 14 Plaintiff contends Defendants allowed medical care to deteriorate so they could 15 reduce their costs and increase their profits. (Id.) He alleges Defendants based their 16 decisions on Defendant Corizon’s policy and put Defendant Corizon’s and ADC’s needs 17 and profits ahead of Plaintiff’s medical needs, without regard to Plaintiff’s symptoms, pain, 18 and risk of serious medical complications. (Id. at 9.) 19 In Count Two, Plaintiff contends the same allegations discussed in Count One also 20 constitute negligence and medical negligence in violation of the Ninth Amendment. 21 In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary 22 damages, and his costs of suit. 23 III. Discussion 24 The Court will dismiss Count Two because it is essentially duplicative of Plaintiff’s 25 better-pleaded allegations in Count One and because the Ninth Amendment “has never 26 been recognized as independently securing any constitutional right, for purposes of 27 pursuing a civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 28 1986). 1 The Court will dismiss Defendant Smith because Plaintiff’s claim against Defendant 2 Smith is duplicative of his claim against her in Gutierrez-Valencia v. Corizon Utilization 3 Management Unit, CV 18-03007-PHX-JAT (DMF).4 An in forma pauperis complaint that 4 merely repeats pending or previously litigated claims may be considered abusive and 5 dismissed under the authority of 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 6 1105 n.2 (9th Cir. 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). 7 Liberally construed, Plaintiff has stated an Eighth Amendment medical care claim 8 in Count One against the remaining Defendants. The Court will require Defendant Corizon 9 to answer Count One; require Defendant Pratt to answer Count One in his individual 10 capacity only;5 require Defendant Ryan to answer Count One in his individual capacity 11 only; and substitute current Arizona Department of Corrections Director David Shinn for 12 Defendant Ryan in his official capacity only and require Director Shinn to answer Count 13 One in his official capacity.6 See Fed. R. Civ. P. 25(d) (permitting the court to order 14 substitution of a public officer who is a party in an official capacity when the party ceases 15 to hold office while the action is pending). 16

17 4 In Count Five of his Complaint in CV 18-03007, Plaintiff alleged that “throughout [Plaintiff’s] entire medical jou[r]ney,” Defendant Smith “has continued to hinder [Plaintiff] 18 from securing a much[-]needed surgical procedure for a double hernia condition,” despite being aware of Plaintiff’s condition and pain. See Doc. 1 at 9 in CV 18-03007. Plaintiff 19 claimed Defendant Smith refused to aid or assist in remedying Plaintiff’s condition and deliberately “refuse[d] to offer any real resolution” of the issue, despite Plaintiff’s 20 “constant cr[ie]s for assistance.” Id. In a November 30, 2018 Order, the Court dismissed the claim against Defendant Smith because Plaintiff had failed to state a claim against her. 21 See Doc. 11 in CV 18-03007. 22 5 The Court will not require Defendant Pratt to answer in his official capacity because it would be redundant; the Court is already requiring Director Shinn to answer in 23 his official capacity. See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 n.55 (1978) (a claim against an individual in his or her official capacity is “only another 24 way of pleading an action against an entity of which an officer is an agent.”). 25 6 Plaintiff can only obtain prospective declaratory or injunctive relief, not damages or retrospective declaratory and injunctive relief against ADC employees in their official 26 capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officials sued for damages in their official capacity are not ‘persons’ for purposes of the suit because they assume the 27 identity of the government that employs them.”); Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (the Eleventh Amendment “does not . . . bar 28 actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law.”). 1 IV. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Copies 14 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 15 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 16 of every document he files or to submit an additional copy of every filing for use by the 17 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 18 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 19 including, with every document he files, a certificate of service stating that this case is 20 subject to General Order 14-17 and indicating the date the document was delivered to 21 prison officials for filing with the Court. 22 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 23 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 24 copy of every document that he files, and include a certificate stating that a copy of the 25 filing was served; and (b) submit an additional copy of every filing for use by the Court. 26 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 27 being stricken without further notice to Plaintiff. 28 . . . . 1 D. Possible Dismissal 2 If Plaintiff fails to timely comply with every provision of this Order, including these 3 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 5 to comply with any order of the Court). 6 IT IS ORDERED: 7 (1) The Clerk of Court shall update the docket to reflect that, pursuant to Rule 8 25(d) of the Federal Rules of Civil Procedure, Arizona Department of Corrections Director 9 David Shinn is substituted for Charles Ryan in his official capacity only. 10 (2) Count Two and Defendant Smith are dismissed without prejudice. 11 (3) Defendants Ryan, Shinn, Pratt, and Corizon must answer Count One. 12 Defendants Ryan and Pratt must answer in their individual capacities only; Defendant 13 Shinn must answer in his official capacity only. 14 (4) The Clerk of Court must send Plaintiff this Order, and a copy of the 15 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 16 for Waiver of Service of Summons form for Defendants Ryan, Shinn, Pratt, and Corizon. 17 (5) Plaintiff must complete7 and return the service packet to the Clerk of Court 18 within 21 days of the date of filing of this Order. The United States Marshal will not 19 provide service of process if Plaintiff fails to comply with this Order. 20 (6) If Plaintiff does not either obtain a waiver of service of the summons or 21 complete service of the Summons and First Amended Complaint on a Defendant within 90 22 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 23 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 24 LRCiv 16.2(b)(2)(B)(ii). 25 . . . . 26

27 7 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 28 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. 1 (7) The United States Marshal must retain the Summons, a copy of the First 2 Amended Complaint, and a copy of this Order for future use. 3 (8) The United States Marshal must notify Defendants of the commencement of 4 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 5 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 6 Order. 7 (9) A Defendant who agrees to waive service of the Summons and First 8 Amended Complaint must return the signed waiver forms to the United States Marshal, not 9 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 10 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 11 personal service. 12 (10) The Marshal must immediately file signed waivers of service of the 13 summons. If a waiver of service of summons is returned as undeliverable or is not returned 14 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 15 the Marshal must: 16 (a) personally serve copies of the Summons, First Amended Complaint, 17 and this Order upon Defendant pursuant to Rule 4(e)(2) and/or (h)(1) of the Federal 18 Rules of Civil Procedure; and 19 (b) within 10 days after personal service is effected, file the return of 20 service for Defendant, along with evidence of the attempt to secure a waiver of 21 service of the summons and of the costs subsequently incurred in effecting service 22 upon Defendant. The costs of service must be enumerated on the return of service 23 form (USM-285) and must include the costs incurred by the Marshal for 24 photocopying additional copies of the Summons, First Amended Complaint, or this 25 Order and for preparing new process receipt and return forms (USM-285), if 26 required. Costs of service will be taxed against the personally served Defendant 27 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 28 ordered by the Court. 1 (11) Defendants Ryan, Shinn, Pratt, and Corizon must answer Count One of the 2| First Amended Complaint or otherwise respond by appropriate motion within the time 3 | provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 4 (12) Any answer or response must state the specific Defendant by name on whose 5 | behalf itis filed. The Court may strike any answer, response, or other motion or paper that 6 | does not identify the specific Defendant by name on whose behalf it is filed. 7 (13) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to 8 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 9) authorized under 28 U.S.C. § 636(b)(1). 10 Dated this 23rd day of June, 2020. 11 12 A 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28