Henson v. Corizon Health LLC

Opinion

Case 2:19-cv-04396-MTL-DMF Document 225 Filed 09/16/21 Page 1 of 50

1 WO SH

2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher James Henson, No. CV 19-04396-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 Corizon Health LLC, et al., 13 Defendants. 14 15 Plaintiff Christopher James Henson, who is currently confined in Arizona State 16 Prison Complex (ASPC)-Florence, East Unit, brought this civil rights action pursuant to 17 42 U.S.C. § 1983. (Doc. 116.) Defendants move for summary judgment (Docs. 152, 161, 18 164). Although Plaintiff was informed of his right and obligation to respond to Defendants’ 19 Motions for Summary Judgment,1 and was granted several deadline extensions (Docs. 173, 20 178, 203, 210, 213), Plaintiff failed to respond, and the time to do so has expired.2 21 ... 22 ... 23 24 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 25 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Docs. 160, 167, 168.) 26 2 Because Plaintiff failed to file a response or controverting statement of facts, the 27 Court will consider Defendants’ facts undisputed unless they are clearly controverted by Plaintiff’s first-hand allegations in the verified Complaint or other evidence on the record. 28 Where the nonmovant is a pro se litigant, the Court must consider as evidence in opposition to summary judgment all the nonmovant’s contentions set forth in a verified complaint or motion. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Case 2:19-cv-04396-MTL-DMF Document 225 Filed 09/16/21 Page 2 of 50

1 I. Background 2 On screening of Plaintiff’s Second Amended Complaint (Doc. 116) pursuant to 28 3 U.S.C. § 1915A(a), the Court determined that Plaintiff stated constitutional claims against 4 Defendants Arizona Department of Corrections (ADC) Director David Shinn, Corizon 5 Health, Centurion of Arizona, Nurse Practitioner Dorothy Igwe, Contracting Monitoring 6 Bureau Director David Robertson, Supervisor Vanessa Headstream, Dr. Rodney Stewart, 7 Medical Director Thomas Lutz, Facility Health Administrators Adam Perkins and Trina 8 Randall, Nursing Supervisors Elizabeth Pontious and Phyllis Raney, and ADC Office of 9 Publication Review employees Tray Williams and Diane Miller and ordered them to 10 respond to the respective claims against them. (Docs. 70, 117.) The Court subsequently 11 dismissed Defendants Williams and Miller pursuant to Federal Rule of Civil Procedure 12 12(c). (Doc. 162.) The Court also dismissed Defendant Lutz for failure to timely serve. 13 (Doc. 179.) 14 In Count 1 of the Second Amended Complaint, Plaintiff alleges that he was 15 diagnosed with Hepatitis B and C while incarcerated in the ADC and that “ADC, Corizon, 16 and Centurion have a policy, practice, and custom of monitoring prisoners with HCV 17 [Hepatitis C] instead of providing treatment or cures.” Plaintiff alleges that they have failed 18 to monitor or treat his Hepatitis B and C “due to financial incentive.” (Doc. 116 at 6.) 19 Plaintiff claims that while confined in ASPC-Eyman in late 2017, he began noticing 20 that he was easily fatigued and had a loss of appetite, aching joints, pain in his lower back 21 around his kidneys, and pain in stomach and lower abdomen. Plaintiff submitted a health 22 needs request (HNR) form and was seen by a nurse practitioner who ordered blood 23 laboratory tests. The December 2017 blood test showed Plaintiff had “elevated AST & 24 ALT scores.” Plaintiff claims elevated AST & ALT levels are present in individuals who 25 have chronic Hepatitis C. In February, March, and September 2018, Plaintiff’s blood tests 26 also showed abnormally elevated AST & ALT levels. Plaintiff claims the nurse 27 practitioner ordered a “hepatitis panel” in May 2018 that confirmed that Plaintiff had been 28 recently infected with Hepatitis B. He contends his Hepatitis B is dormant but has the

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1 potential to “re-activate or flare-up.” Plaintiff alleges that having a Hepatitis B/C 2 coinfection can potentially put him at risk for liver disease progression, decompensated 3 liver disease, and “HCC.”3 He claims there are medications available that can cure 4 Hepatitis B and C. (Id. at 7.) 5 Plaintiff alleges he was transferred to ASPC-Florence in October 2018. He 6 submitted an HNR form on December 3, 2018, requesting Hepatitis B and C treatment, and 7 was seen by a nurse that day. Plaintiff requested information regarding his viral load, the 8 genotype for his Hepatitis C, and what forms of Hepatitis B he had been exposed to. The 9 nurse did not know and referred Plaintiff to the providers’ line. On December 15, 2018, 10 Plaintiff had a teleconference with a certified family nurse practitioner regarding his 11 chronic care. Plaintiff requested information regarding his viral load, enzyme levels, and 12 Hepatitis C genotype. The nurse practitioner indicated he did not know this information 13 because the prior providers had not ordered those types of tests, but the nurse practitioner 14 ordered a “full blood lab that included viral load, log-10, fibrosis screening and 15 inflammation screening” and explained that Defendant Corizon’s Hepatitis committee 16 would have to approve and order the genotype test. (Id. at 7–8.) 17 Plaintiff claims he was called to the medical department on December 17, 2018, to 18 see Defendant Igwe for chronic care. He states he had seen the nurse practitioner two days 19 earlier for chronic care and this demonstrates a lack of “centralized coordination.” Plaintiff 20 asserts Defendant Igwe would not address Plaintiff’s medical issues or concerns, would 21 not allow Plaintiff to take notes, and, when Plaintiff requested a liver biopsy and Hepatitis 22 B and C treatment or cures, Igwe said Plaintiff did not “get to dictate treatment or who 23 provides the treatment.” Plaintiff contends the results of the tests ordered by the nurse 24 practitioner showed Plaintiff had abnormally high AST, ALT, viral load, and “Log-10”; 25 minimal fibrosis,4 and significant liver inflammation. (Id. at 8–9.) 26 27 3 Presumably, Plaintiff is referring to hepatocellular carcinoma. 28 4 Plaintiff alleges fibrosis is the “first stages of scarring of the liver, which is irrevers[i]ble perm[a]nent long-term damage to [his] liver.” (Doc. 116 at 9.)

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1 Plaintiff asserts that he submitted an informal complaint on December 28, 2018, 2 regarding Hepatitis B and C treatment, but ADC and Defendant Corizon chose not to take 3 corrective action. He alleges he submitted a grievance on January 22, 2019, but Defendant 4 Perkins stated that Plaintiff’s “current APRI score [wa]s 0.871[,] which did not warrant 5 treatment.” Plaintiff claims the APRI method is “unreliable for testing conclusions” and 6 more than half of individuals with fibrosis or cirrhosis will not have APRI scores of 2.0 or 7 higher. He contends other methods, such as liver biopsies “reliably determine if a person 8 is suffering from fibrosis or cirrhosis and what stage of advancement it is at.” (Id. at 10.) 9 Plaintiff claims he was called to the medical department on January 29, 2019, but 10 Defendant Igwe refused to see Plaintiff because Plaintiff had allegedly cursed at her. 11 Plaintiff claims he submitted another HNR on February 11, 2019, seeking a liver biopsy 12 and Hepatitis B/C treatment and indicating, at the top of the form, that he was “begging for 13 [Defendant Igwe’s] help.” (Id. at 9.) 14 Plaintiff claims he saw Defendant Igwe on February 18, 2019, and the genotype test 15 was approved. Plaintiff claims the test was conducted three days later and showed that 16 Plaintiff had “genotype 3.” Plaintiff alleges that available data suggests that “fibrosis 17 progression occurs most rapidly in patients with genotype 3” and that it is recommended 18 that almost all individuals with chronic Hepatitis C receive direct acting antiviral drugs. 19 (Id.) 20 Plaintiff alleges that on May 12, 2019, he submitted an HNR to Defendants Igwe 21 and Stewart requesting Hepatitis B and C treatment. In response, Plaintiff was told that 22 the provider had explained the Hepatitis C treatment and criteria and that he could submit 23 an inmate letter. (Id.) 24 Plaintiff alleges that on July 1, 2019 and July 29, 2019, he submitted HNRs to 25 Defendant Centurion requesting Hepatitis C treatment. He had labs taken on August 13, 26 2019, which showed elevated AST and ALT levels. Plaintiff claims Defendant Igwe told 27 him “that monitoring is sufficient treatment.” (Id. at 12.) 28

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1 Plaintiff claims that at some unspecified time, he told Defendant Igwe he was 2 experiencing “unbearable” stomach pain and pain in his body. He had previously been 3 prescribed Excedrin, but Defendant Igwe “constantly removed/discontinued” the 4 prescription and has refused to provide [Plaintiff] with adequate pain management 5 medication. In February, April, June, and July 2019, Plaintiff requested pain management 6 medication from Defendant Igwe, and Defendant Igwe prescribed alpha lipoic acid, even 7 though she knew that does not relieve Plaintiff’s pain. Defendant Igwe told Plaintiff that 8 Defendants Stewart, Robertson, Corizon, and Centurion “ordered all employees not [to] 9 give pain medications that help.” (Id. at 11.) 10 Plaintiff alleges that Defendant Corizon is required by its “own contractual 11 agreement to the Performance Measure Stipulation[]s set forth in Parsons v. Ryan” to 12 develop treatment plans and document them in the medical record within 30 days of 13 identifying that an inmate has a chronic disease. Plaintiff claims that “monitoring” 14 Hepatitis C is not “treatment” and that ADC and Defendant Corizon have chosen to 15 “cherrypick [a] select few to receive [direct acting antivirals] . . . with fina[n]cial 16 incentive/cost/profit in mind.” Plaintiff claims Defendants completely disregarded his 17 medical concerns, took no action at all, and were deliberately indifferent. (Id. at 10.) 18 Plaintiff alleges he is a qualified individual under the Americans with Disabilities 19 Act (ADA) and Rehabilitation Act (RA) and that Defendants Corizon and Centurion have 20 “denied [him] the benefit of services by being subjected to discrimination.” 5 Plaintiff 21 22 5 Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the 23 services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To the extent Plaintiff intends to assert an ADA claim, 24 his claim fails because claims under the ADA cannot be based on medical treatment decisions. Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005). Moreover, Plaintiff’s 25 daily life activities do not count as services, programs, or activities under the ADA. Here, Plaintiff claims that he received inadequate treatment for his disability rather than 26 discrimination because of his disability. Although the ADA affords disabled persons legal rights regarding access to programs and activities enjoyed by all, it does not provide them 27 with a general federal cause of action for challenging the medical treatment of their underlying disabilities. Burger, 418 F.3d at 883 (holding that ADA claims cannot be based 28 on medical treatment decisions); Schiavo ex. Rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (finding that the ADA “was never intended to apply to decisions involving . . . medical treatment”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

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1 asserts that his Hepatitis C “substantially limits one or more of [his] major life activities” 2 including eating, bending over, and sleeping. (Id. at 13.) 3 Plaintiff alleges that as a result of these events, he has suffered liver scarring, 4 fatigue, dark urine, clay-colored stool, abdominal pain, rectal bleeding, loss of appetite, 5 nausea, and joint pain. (Id. at 6, 14.) 6 In Count 2, Plaintiff alleges that after noticing a cyst on the right side of his scrotum 7 in December 2017, he submitted an HNR and was seen by the nurse practitioner in 8 December 2017 or January 2018. The nurse practitioner examined the cyst and 9 recommended an ultrasound, which was approved by Utilization Management. He claims 10 he went to the ultrasound in February 2018 so a plan of treatment could be established, but 11 no further diagnostic testing has been “recommended/requested via [the Utilization 12 Management Team] to determine the cause of the [cyst] and whether it could be life 13 threatening with regard[] to testicular cancer.” (Id. at 15.) 14 Plaintiff alleges he submitted HNRs to Defendant Igwe in December 2018 and 15 February and March 2019 requesting that the cyst be removed and biopsied to test for 16 cancer and indicating that the cyst continued to increase in size and continued to cause 17 discomfort. He claims his requests were made “to no avail.” Plaintiff contends he was 18 called into the medical department, but he is “met with stonewalling” when he seeks “some 19 action” be taken regarding his cyst. He alleges that on February 20, 2019, Defendant Igwe 20 refused to request a biopsy, laughed at Plaintiff, and told him that Defendant “Corizon will 21 not pay for that[;] they already performed an ultrasound, and you[’]r[e] a prisoner; what 22 more do you want[?]” (Id. at 16, 17.) 23 24 25 1996) (concluding that the ADA “would not be violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners” and that the statute “does not create 26 a remedy for medical malpractice”). The failure to provide adequate medical treatment “does not fall within the provisions of the ADA[.]” Brown v. Baca, No. CV 07-819-CAS 27 (DTB), 2010 WL 316475, at *7 (C.D. Cal. Jan. 18, 2010). Accordingly, to the extent Plaintiff intended to bring an ADA claim in Count 1, this claim is dismissed. See 28 U.S.C. 28 § 1915(e)(2)(B) (under the Prisoner Litigation Reform Act (PLRA), the Court is required to dismiss an in forma pauperis case (or claim) at any time if the court concludes that the plaintiff has failed to state a claim).

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1 Plaintiff alleges he sent multiple inmate letters to Defendants Headstream and 2 Robertson and former ADC Director Ryan in February and April 2019. He claims he wrote 3 to them in February and April 2019 regarding his Hepatitis B and C and the cyst on his 4 scrotum. Plaintiff alleges Defendant Robertson did not respond. He claims Defendant 5 Headstream provided a “form” response that “countless other prisoners have received.” He 6 alleges she responded that “Responsibility and accountability for inmate health care is 7 demanded, now, as in the past,” but this was “no more than her window dressing for ADC 8 & Corizon.” Plaintiff also asserts Defendant Headstream responded on Ryan’s behalf, 9 again providing a form response and not taking any action regarding a biopsy or treatment. 10 (Id.) 11 Plaintiff asserts Defendants Robertson and Headstream are aware “that the 12 constitutional violation [and] gross lack of adequate health/medical care has been 13 ongoing.” Plaintiff claims Defendants Robertson and Headstream, as supervisors, have the 14 authority to remedy constitutional violations. (Id. at 17.) 15 In addition, Plaintiff claims he submitted an inmate informal complaint to 16 Defendant Perkins on March 29, 2019, but Defendant Perkins did not respond. Plaintiff 17 asserts that in denying him a biopsy, Defendants were acting in concert “due to a policy, 18 practice, [and] custom of ADC, Corizon, and Centurion that den[ies] prisoners in state 19 custody adequate medical care.” (Id. at 17, 18.) 20 Plaintiff alleges that “[o]n many occasions[,]” he told Defendant Igwe “that two 21 cysts in [his] scrotum are causing [him] pain that is unbearable.” On August 13, 2019, 22 Plaintiff had labs taken which showed “above high normal levels” of lymphocyte, ALT, 23 AST, GT7, GGT, and Gamma; Plaintiff’s neutrophils were below normal. Plaintiff 24 received no explanation for these lab results. Plaintiff claims Defendant Igwe told him that 25 she could not do anything except order an ultrasound, pursuant to instructions she received 26 from Defendant Stewart. (Id.) 27 In Count 3, Plaintiff alleges Defendants Corizon and Centurion, pursuant to their 28 contracts with ADC, agreed that ADC’s policies would supersede their own policies. He

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1 claims ADC’s health care directives require each facility to provide “planned care in a 2 comprehensive continuous fashion” and require “care to be ‘organized and consistent 3 across facility lines.’” Plaintiff contends, however, that Corizon and Centurion have 4 ignored this policy and have deliberately chosen a policy of not centrally coordinating 5 medical services for prisoners. He alleges he has received care from multiple providers, 6 but, “under [Defendant] Corizon[’s] policy choices, no one person was responsible for 7 coordinating his overall care.” Plaintiff asserts that he has “yet to arrive at a unit where the 8 health care provider has [his] medical file in front of [the provider]” to review “pas[t] 9 information from previous health care providers” and to “understand the clear scope of the 10 individual currently before [the provider].” (Id. at 20–21.) 11 Plaintiff also alleges that all Defendants have “impeded and delayed [his] ability to 12 have meaningful access to the courts.” Plaintiff claims former ADC Director Ryan 13 “changed ADC policy to give Corizon and Centurion the exclusive authority over the 14 medical grievance process” and that they have removed the ability to appeal which has 15 “rendere[ed] the grievance process unavailable.” (Id. at 23.) 16 In Count 4, Plaintiff alleges that the “ADC has no law libraries and the paralegal is 17 not allowed to assist inmates, except to p[er]form the function of reviewing documents.” 18 Plaintiff claims that he ordered a book titled, “An Inexplicable Deformity,” “which 19 discusses ADC and Corizon and cases that may be helpful.” (Id.) Plaintiff claims that on 20 September 25, 2019, former Defendants Williams and Miller told him he could not have 21 the book pursuant to ADC policy because the book “discusses cases that names [ADC] 22 employee’s [sic].” (Doc. 116-1 at 2.) 23 In Count 5, Plaintiff alleges that his asthma and Hepatitis C put him at increased 24 risk of contracting the Covid-19 virus, and Defendant Shinn has failed in his duties as ADC 25 Director to implement proper cleaning and screening policies to protect Plaintiff and other 26 prisoners from the disease. (Id. at 4.) 27 ... 28 ...

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1 II. Miscellaneous Motions 2 A. Defendants’ Motion for Ruling 3 Defendants move for summary disposition of their Motion for Summary Judgment 4 based on Plaintiff’s failure to file a response pursuant to Local Rule of Civil Procedure 5 7.2(i), which provides that the Court may deem a party’s failure to respond to a motion as 6 consent to the granting of the motion. 7 In Heinemann v. Satterberg, the Ninth Circuit clarified that a local rule permitting 8 a district court to treat the lack of a response as consent to granting a motion does not apply 9 to summary judgment motions. 731 F.3d 914, 917 (9th Cir. 2013) (finding that Western 10 District of Washington Local Rule 7(b)(2) conflicts with Federal Rule of Civil Procedure 11 56 and cannot provide a valid basis for granting a motion for summary judgment). 6 If a 12 summary judgment motion is unopposed, Rule 56 “authorizes the court to consider a fact 13 as undisputed,” but it does not permit the court to grant summary judgment by default. Id. 14 Indeed, under the summary judgment standard, if the moving party fails to meet its initial 15 burden of production, the opposing party need not produce anything. Nissan Fire & 16 Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). The Court 17 must therefore address Defendants’ Motion for Summary Judgment on the merits, and it 18 will deny Defendants’ Motion for Summary Disposition. 19 B. Plaintiff’s Motions to Disqualify Counsel 20 Plaintiff seeks to disqualify defense counsel based on District Judge Silver’s 21 observations about long-term compliance with the stipulation in Parsons v. Ryan, CV12- 22 00601-PHX-ROS. (See Doc. 215 at 1-2.) Plaintiff also moves to consolidate the ruling on 23 the pending Motion to Disqualify Counsel with the ruling on similar motions filed by other 24 prisoner plaintiffs in unrelated actions that are pending before this Court. (Doc. 217.) 25 26 27 6 Western District of Washington Local Rule 7(b)(2) states that “[i]f a party fails to 28 file papers in opposition to a motion, such a failure may be considered by the court as an admission that the motion has merit.” Heinemann, 731 F.3d at 916.

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1 As an initial matter, Federal Rule of Civil Procedure 42 provides that when actions 2 involving a common question of law or fact are pending before the Court, they may be 3 consolidated. Here, the cases Plaintiff seeks to consolidate all deal with different factual 4 matters, different plaintiffs, different defendants, and the cases are in different procedural 5 postures. Thus, it would not promote the conservation of judicial resources to consolidate 6 these cases at this time. See Fed. R. Civ. P. 42(a)(3) (consolidation of cases may be 7 warranted “to avoid unnecessary cost or delay”). Nor would consolidation secure a speedy 8 determination of the present action. See Fed. R. Civ. P. 1 (the procedural rules should be 9 “administered to secure the just, speedy, and inexpensive determination of every action”). 10 Accordingly, Plaintiff’s request to consolidate rulings will be denied. 11 The Court will also deny Plaintiff’s request to disqualify defense counsel. Federal 12 courts apply state law when determining matters of disqualification and must follow the 13 reasoned view of the state supreme court when it has spoken on an issue. In re Cnty. of 14 L.A., 223 F.2d 990, 995 (9th Cir. 2000). “This Court applies the Arizona ethical rules when 15 evaluating motions to disqualify counsel.” Roosevelt Irrig. Dist. v. Salt River Project 16 Agric. Improvement and Power Dist., 810 F.Supp.2d 929, 944 (D. Ariz. 2011). The 17 Arizona Rules of Professional Conduct warn that “the purpose of the Rules can be 18 subverted when they are invoked by opposing parties as procedural weapons.” Id. (citing 19 Pmbl. ¶ 20, Ariz. R. Prof’l Conduct). Pursuant to Arizona law, “[o]nly in extreme 20 circumstances should a party to a lawsuit be allowed to interfere with the attorney-client 21 relationship of his opponent.” Id. (citing Alexander v. Superior Ct., 685 P.2d 1309, 1313 22 (Ariz. 1984)). The party moving for disqualification has the burden of sufficiently showing 23 why the Court should disqualify an attorney from representing its client. Roosevelt, 810 24 F.Supp.2d at 944-945. 25 As noted by Defendants, Judge Silver’s observations regarding the Parsons case 26 have no bearing on Plaintiff’s claims in this case. Moreover, Plaintiff has not shown that 27 “extreme circumstances” exist in this case that would warrant the Court interfering with 28

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1 Defendants’ attorney-client relationship. Accordingly, the Motion to Disqualify Counsel 2 will be denied. 3 III. Summary Judgment Standard 4 A court must grant summary judgment “if the movant shows that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 6 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 7 movant bears the initial responsibility of presenting the basis for its motion and identifying 8 those portions of the record, together with affidavits, if any, that it believes demonstrate 9 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 10 If the movant fails to carry its initial burden of production, the nonmovant need not 11 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 12 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 13 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 14 contention is material, i.e., a fact that might affect the outcome of the suit under the 15 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 16 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 18 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 19 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 20 it must “come forward with specific facts showing that there is a genuine issue for trial.” 21 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 22 citation omitted); see Fed. R. Civ. P. 56(c)(1). 23 At summary judgment, the judge’s function is not to weigh the evidence and 24 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 25 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 26 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 27 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 28 ...

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1 IV. Medical Claims 2 A. Legal Standard 3 To support a § 1983 medical claim, a plaintiff must show (1) a “serious medical 4 need” by demonstrating that failure to treat the condition could result in further significant 5 injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response 6 was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 7 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 8 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 9 know of and disregard an excessive risk to inmate health; “the official must both be aware 10 of facts from which the inference could be drawn that a substantial risk of serious harm 11 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 12 Deliberate indifference in the medical context may be shown by a purposeful act or failure 13 to respond to a prisoner’s pain or possible medical need and harm caused by the 14 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 15 prison official intentionally denies, delays, or interferes with medical treatment or by the 16 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 17 97, 104-05 (1976); Jett, 439 F.3d at 1096. 18 Deliberate indifference is a higher standard than negligence or lack of ordinary due 19 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 20 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corrs., 220 F. 21 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 22 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 23 do not support a claim under § 1983). “A difference of opinion does not amount to 24 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 25 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 26 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 27 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 28

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1 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 2 Estelle, 429 U.S. at 105. 3 Moreover, to prove a claim under § 1983 against a private entity performing a 4 traditional public function, such as providing medical care to prisoners, a plaintiff must 5 satisfy the test articulated in Monell v. Department of Social Services of City of New York, 6 436 U.S. 658, 690-94 (1978), by presenting facts to support that his constitutional rights 7 were violated as a result of a policy, decision, or custom promulgated or endorsed by the 8 private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012). 9 In this case, Plaintiff must show: (1) that his constitutional rights were violated by an 10 employee or employees of Corizon and/or Centurion; (2) that Corizon and/or Centurion 11 has customs or policies that amount to deliberate indifference; and (3) that the policies or 12 customs were the moving force behind the violation of Plaintiff’s constitutional rights in 13 the sense that Corizon and/or Corizon could have prevented the violation with an 14 appropriate policy. See Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 15 2002). 16 B. Relevant Facts 17 1. ADC Hepatitis C Protocol 18 According to a Report published by Gilead Science, the challenges facing prisons 19 in treating the inmate population infected with Hepatitis C include budgetary constraints, 20 the high cost of treatment, and the fact that incarcerated individuals are up to 13 times more 21 likely to have detectible levels of Hepatitis C in the blood than in the general population. 22 (Doc. 153 (Corizon Defs.’ Statement of Facts) ¶ 85.) Recognizing these challenges, the 23 Federal Bureau of Prisons’ (BOP) Clinical Guidance manual for the Evaluation and 24 Management of Chronic Hepatitis C (HCV) Infection (adopted by ADC and Corizon 25 Health), contains a comprehensive framework for prioritizing prisoners for Hepatitis C 26 treatment so that those with the greatest need are identified and treated first. (Id. ¶ 86.) 27 According to the BOP manual, progression from chronic Hepatitis C infection to 28 fibrosis and eventually cirrhosis may take years in some patients and decades in others –

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1 or, in some cases, may not occur at all. (Id. ¶ 87.) Most complications from Hepatitis C 2 infection occur in people with cirrhosis. (Id. ¶ 88.) Therefore, assessing for cirrhosis is 3 important in prioritizing prisoners for Hepatitis C treatment. (Id. ¶ 89.) 4 To that end, the APRI score is the “BOP-preferred method for non-invasive 5 assessment of hepatic fibrosis and cirrhosis” and “APRI scores [greater than] 2.0 may be 6 used to predict the presence of cirrhosis.” (Id. ¶ 90.) The APRI score is calculated7 using 7 the results of two blood tests – the AST (aspartate aminotransferase) and the platelet count 8 – and is considered a less expensive and less invasive means of assessing liver fibrosis than 9 a liver biopsy. (Id. ¶ 91.) 10 The Gilead Report similarly recognizes that the severity of liver disease in people 11 with Hepatitis C can be estimated using formulas based on common laboratory tests. Two 12 common methods are the AST to platelet ratio (APRI) and the Fibrosis-4 Index. (Id. ¶ 92.) 13 According to the BOP standards, prisoners with “advanced hepatic fibrosis,” liver 14 transplant recipients, and those with comorbid medical conditions are the highest priority 15 (Priority Level One) for treatment. (Id. ¶ 93.) Advanced hepatic fibrosis is demonstrated 16 through either: (1) an APRI score [greater than] 2; (2) “Metavir or Batts/Ludwig stage 3 or 17 4 on liver biopsy;” or (3) known or suspected cirrhosis. (Id. ¶ 94.) Liver transplant 18 recipients, those with certain co-morbid medical conditions, immunosuppressed patients, 19 and those who were already started on treatment when they were incarcerated also fall into 20 the Priority Level One category. (Id. ¶ 95.) 21 Next, patients in the “intermediate” priority category (Priority Level 2) have an 22 APRI score greater than 1 and/or “stage 2 fibrosis” on a liver biopsy. Those with certain 23 comorbid conditions, including liver disease, diabetes and chronic kidney disease, also fall 24 into the Priority Level 2 category. (Id. ¶ 96.) 25 26 27 28 7 The formula for calculating the APRI score is [(AST/AST ULN) x 100] / platelet count (10⁹/L ). (Doc. 153 ¶ 91.)

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1 Finally, those with an APRI score less than 1 are the lowest priority (Priority Level 2 3) for treatment. Those with stage 0-1 fibrosis on a liver biopsy also fall into this category. 3 (Id. ¶ 97.) 4 Because APRI scores are used to predict the presence of cirrhosis, the standards no 5 longer require a liver biopsy. (Id. ¶ 98.) 6 A CTP score can also be useful in determining the severity of cirrhosis. It is utilized 7 to distinguish between compensated and decompensated liver disease in patients with 8 known or suspected cirrhosis. The CTP score includes five parameters (encephalopathy, 9 ascites, bilirubin, albumin, and international normalized ratio), with each given a score of 10 1, 2, or 3. The sum of the five parameters is the CTP score. A CTP score of 5 is considered 11 Class A. (Id. ¶ 99.) 12 If priority criteria for treatment are met, the Hepatitis C genotype can assist in 13 determining the most appropriate direct-acting antiviral (DAA) regimen. (Id. ¶ 100.) 14 The Gilead Report recognizes that other healthcare providers, such as Medicaid, use 15 similar parameters to determine treatment eligibility, such as fibrosis severity and patient 16 sobriety, in order to “manage cost and utilization of HCV therapy.” (Id. ¶ 101.) 17 In addition to the BOP manual, Corizon Health follows the ADC “Clinical Practice 18 Guidelines for the Prevention and Treatment for Viral Hepatitis C.” The Clinical Practice 19 Guidelines estimate that approximately 23% of ADC prisoners are infected with Hepatitis 20 C. (Id. ¶ 102.) The Clinical Practice Guidelines memorialize the high, intermediate, and 21 low Priority Levels contained within the BOP manual almost verbatim. (Id. ¶ 103.) The 22 Clinical Practice Guidelines also state that prisoners with an APRI score of 0.7 or above 23 and who have findings suggestive of advanced fibrosis (low albumin or platelets, elevated 24 bilirubin or International Normalized Ration (INR)) will be prioritized for treatment. (Id. 25 ¶ 104.) 26 Additionally, since January 1, 2010, the Corizon Hepatitis C Committee has based 27 its decision whether to treat individual Hepatitis C-infected prisoners on a number of 28

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1 factors, including but not limited to, absence of risky behavior as evidenced by no 2 disciplinary tickets for drug possession or tattoos for one year. (Id. at 105.) 3 Dr. Craig Hutchinson is a consultant for Corizon Health, Inc. and is board-certified 4 in internal medicine and infectious disease. Dr. Hutchinson evaluates and treats patients 5 with Hepatitis C. (Id. ¶ 106.) 6 Elevated APRI may indicate a high level of liver fibrosis, a high level of liver 7 inflammation, or a combination of the two. To help identify those patients with high 8 fibrosis (who are high priority for treatment), Dr. Hutchinson estimates adequacy of liver 9 function through the Child-Turcotte-Pugh (CTP) Classification. Similarly, the BOP also 10 recommends utilizing the CTP Classification. The Classification is based on five factors: 11 encephalopathy, ascites, bilirubin, albumin, and international normalized ratio. The first 12 two of those are based on physical examination and/or imaging, and the latter three are lab 13 tests. Each factor is assigned a point value from one to three, so entirely normal findings 14 generate a CTP score of five. Additional points reflect impairment of liver function, with 15 the worst possible score of 15. (Id. ¶ 107.) 16 On December 20, 2018, Plaintiff had no evidence of encephalopathy, which is 1 17 point. Plaintiff had no evidence of ascites, which is 1 point. Plaintiff’s bilirubin on 18 December 20, 2018 was 0.4, which is 1 point. Plaintiff’s albumin on December 20, 2018 19 was 4.8, which is 1 point. Plaintiff’s INR on December 15, 2017 was 1.06, and on May 20 30, 2019, was 1.04, which also yield 1 point for INR. Thus, Plaintiff’s total was 5 points, 21 which is the lowest score possible and is considered Class A. Among patients with 22 cirrhosis, which Plaintiff did not have, Class A reflects the best liver compensation. (Id.) 23 For patients with elevated APRI and normal CTP score, Dr. Hutchinson frequently 24 uses a blood test panel, such as the Fibrotest/Actitest, which gives independent fibrosis and 25 inflammation scores that predict reasonably well what a liver biopsy would show. Plaintiff 26 had the Fibrotest/Actitest on December 20, 2018, and it predicted fibrosis stage 1-2 of 4, 27 and significant inflammation. However, significant inflammation is not an indication for 28 priority of treatment. (Id. ¶ 108.)

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1 2. Plaintiff’s Medical Treatment under ADC/Corizon 2 Plaintiff is a prisoner in the custody of the ADC. (Doc. 153 ¶ 1.) On February 15, 3 2017, Plaintiff was transferred from ASPC-Lewis to ASPC-Eyman with his medical 4 records and active medication orders. (Id. ¶ 2.) On October 31, 2017, Plaintiff was 5 transferred from ASPC-Eyman to ASPC-Winslow with his medical chart and his keep-on- 6 person (KOP) medications. (Id. ¶ 3.) On November 2, 2017, Plaintiff was transferred from 7 ASPC-Winslow back to ASPC-Eyman with his medical chart and KOP medications. (Doc. 8 154-1 at 9 (Corizon Defs.’ Ex. 2).) 9 On November 3, 2017, Nurse Practitioner (NP) Betty Hahn ordered a diagnostic 10 panel and prothrombin time/INR test, but Plaintiff refused them. (Doc. 153 ¶ 4.) 11 On November 28, 2017, Plaintiff was transferred back to ASPC-Winslow with his 12 medications and chart. (Id. ¶ 5; see Doc. 154-1 at 18–23 (Corizon Defs.’ Ex. 4).) 13 At some point between November 28, 2017 and December 4, 2017, Plaintiff was 14 transferred back to ASPC-Eyman; Plaintiff’s medical records from December 4 and 5, 15 2017 indicate that his records were available to the ASPC-Eyman medical staff. (See Doc. 16 154-1 at 25–30 (Corizon Defs.’ Ex. 5), 34–38 (Corizon Defs.’ Ex. 7).) 17 On December 4, 2017, NP Siji Thomas ordered a diagnostic panel and an INR test. 18 (Doc. 153 ¶ 6.) The same day, Plaintiff submitted an HNR, asking for evaluation of a lump 19 on his scrotum, and he was referred to a provider. (Id. ¶ 7.) 20 On December 5, 2017, Plaintiff saw Nurse Barbra Gallant. Plaintiff was alert and 21 oriented and denied pain. Nurse Gallant performed a physical exam. She noted a small, 22 hardened, round pea-sized lump to his scrotum. The area was not red or warm and did not 23 move. She referred him to a provider. (Id. ¶ 8.) 24 On December 7, 2017, Plaintiff saw NP Thomas. He complained of a lump on his 25 scrotum for the past three weeks and reported minimal pain. Plaintiff reported no prior 26 history of cancer. NP Thomas completed a physical exam. Plaintiff was alert and oriented. 27 NP Thomas observed a pea shaped area on his scrotum about 2x2 centimeters. Plaintiff 28

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1 had no discharge from his urethra and had no urinary symptoms. NP Thomas submitted a 2 consult for an ultrasound to further evaluate the area. (Id. ¶ 9.) 3 On December 15, 2017, Plaintiff’s APRI score was 2.329. (Id. ¶ 10.) 4 On December 26, 2017, Plaintiff saw NP Thomas for chronic care. Plaintiff denied 5 nausea, vomiting, abdominal pain, muscle or joint pain, constipation, or diarrhea. NP 6 Thomas ordered a diagnostic panel and advised Plaintiff to avoid high risk behaviors and 7 exercise. (Id. ¶ 11.) 8 On February 1, 2018, Plaintiff underwent an ultrasound. Dr. Ross McArthur 9 assessed two right epididymal cysts but no evidence of testicular torsion or epididymitis. 10 (Id. ¶ 12.) 11 On February 9, 2018, Plaintiff saw Registered Nurse (RN) Matthew Fillicetti. 12 Plaintiff complained of blood in his stool. He denied abdominal pain, diarrhea, nausea, 13 and vomiting. RN Fillicetti completed a physical exam. Plaintiff was alert and oriented, 14 bowel sounds were present, and he had no guarding. RN Fillicetti provided Plaintiff with 15 hemoccult cards and referred him to a provider. (Id. ¶ 13.) 16 On February 13, 2018, Plaintiff saw NP Thomas. Plaintiff complained of blood in 17 his stool. He denied constipation, abdominal pain, and a history of hemorrhoids. NP 18 Thomas completed a physical exam. Plaintiff’s abdomen was soft, bowel sounds were 19 present, and he had tenderness in his left lower quadrant. NP Thomas ordered a diagnostic 20 panel and a hemoccult test. (Id. ¶ 14.) 21 On February 14, 2018, Plaintiff saw NP Thomas. Plaintiff reported his cyst was 22 increasing in size and causing pain. NP Thomas completed an examination. The area was 23 warm, pink, and dry. The cyst appeared to be 1-1.5 centimeters. NP Thomas prescribed 24 600 milligrams of Ibuprofen twice daily as needed, submitted a consult for urology, and 25 advised Plaintiff to avoid friction to the cyst. (Id. ¶ 15.) The same day, Plaintiff’s 26 hemoccult test returned positive. (Id. ¶ 16.) 27 On February 21, 2018, the urology consult was assigned an alternative treatment 28 plan (ATP) of conservative management of discomfort related to the epididymal cyst.

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1 Most epididymal cysts do not require surgical intervention and there was no evidence that 2 non-surgical management did not treat his pain. (Id. ¶ 17.) 3 On February 23, 2018, Plaintiff’s APRI score was 0.848 and 1.051 based upon two 4 separate laboratory results. (Id. ¶ 18.) 5 On March 2, 2018, Plaintiff saw NP Thomas. Plaintiff reported the blood in his 6 stool had ceased. Plaintiff denied any other complaints. NP Thomas completed an exam. 7 Plaintiff’s abdomen was soft, non-tender, and bowel sounds were present. NP Thomas 8 ordered a repeat stool test as Plaintiff’s prior test was positive. (Id. ¶ 19.) 9 On March 7, 2018, Plaintiff submitted an HNR, stating he had bloody stools and 10 lower stomach pain. (Id. ¶ 20.) 11 On March 8, 2018, Plaintiff saw RN Mary Marino. Plaintiff complained of blood 12 in his stool for the prior two days, an aching abdomen, and black and tarry stool. RN 13 Marino noted tenderness to the lower abdomen, but the abdomen was soft and non- 14 distended. She referred Plaintiff to a provider. (Id. ¶ 21.) 15 On March 13, 2018, Plaintiff saw NP Thomas. Plaintiff complained of a dull ache 16 in his abdomen, an empty stomach, and black, tarry, bloody stools. Plaintiff denied 17 hemorrhoids and denied taking NSAIDs or over-the-counter medications. NP Thomas 18 completed a physical exam. Plaintiff’s abdomen was soft, but tender in the right upper and 19 lower quadrants. NP Thomas ordered a diagnostic panel and submitted a consult for 20 gastroenterology. (Id. ¶ 22.) 21 On March 18, 2018, Plaintiff saw Nurse Barbra Gallant. Plaintiff complained of 22 abdominal pain with blood in his stool. Nurse Gallant completed a physical exam. 23 Abdominal bowel sounds were present, and Plaintiff was sensitive to palpation across the 24 upper abdomen. Plaintiff produced stool samples, which were positive for occult blood. 25 Nurse Gallant called the on-call provider, who ordered alcalack. Plaintiff stayed in the unit 26 to determine its efficacy. Plaintiff tolerated it well and was discharged. NP Linda Okafor 27 also prescribed Omeprazole and ordered a H. Pylori test. (Id. ¶ 23.) 28

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1 On March 21, 2018, Plaintiff saw NP Thomas. Plaintiff reported that he had 2 experienced cramping and blood in his stool a few days prior to the appointment. NP 3 Thomas conducted a physical exam. Bowel sounds were active, and Plaintiff was tender 4 in the left lower quadrant. NP Thomas advised Plaintiff a consult had already been 5 submitted for gastroenterology and to follow up with him as needed. NP Thomas also 6 renewed Omeprazole. (Id. ¶ 24.) 7 On March 23, 2018, Plaintiff’s H. Pylori test returned as negative. Plaintiff’s APRI 8 score was 0.964. (Id. ¶ 25.) 9 On April 4, 2018, Plaintiff saw NP Thomas. Plaintiff stated he had no bleeding for 10 the past two weeks, but he still had some abdominal pain. NP Thomas completed a physical 11 exam. Active bowel sounds were present, but Plaintiff had some left lower quadrant 12 tenderness. NP Thomas reviewed the recent laboratory results with Plaintiff. (Id. ¶ 26.) 13 On April 9, 2018, Plaintiff submitted an HNR, stating he had bloody stools, swollen 14 lymph nodes, painful joints, and headaches. (Id. ¶ 27.) 15 On April 10, 2018, Plaintiff saw Nurse Gallant. Plaintiff reported body aches and 16 bloody stools. Nurse Gallant completed a physical exam. Plaintiff’s abdomen was soft 17 and non-tender. Plaintiff reported pain to his upper mid-gastric area. Nurse Gallant 18 referred him to a provider. (Id. ¶ 28.) 19 On April 12, 2018, Plaintiff saw NP Thomas. Plaintiff reported swollen lymph 20 nodes, headaches, pinching sides, stomach pain, bloody stools, and throbbing testicles. NP 21 Thomas conducted a physical exam. Plaintiff’s abdomen was soft, non-tender, and bowel 22 sounds were present. Plaintiff’s nasal turbinates were non-erythematous. He had no 23 congestion, polyps, or cervical lymphadenopathy. His throat was clear, and his respirations 24 were even and unlabored. NP Thomas assessed migraines and prescribed Excedrin, which 25 was dispensed through October 8, 2018. NP Thomas noted the colonoscopy was pending. 26 (Id. ¶ 29.) 27 On April 13, 2018, the gastroenterology consult was assigned an ATP of a 28 colonoscopy to evaluate the bloody stools because a general gastroenterology consult was

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1 not indicated. (Id. ¶ 30.) On April 16, 2018, NP Thomas submitted a consult for a 2 colonoscopy in accordance with the ATP. (Id. ¶ 31.) 3 On April 19, 2018, NP Thomas ordered a Hepatitis profile. Plaintiff was abnormal 4 for Hepatitis A, B, and C. (Id. ¶ 32.) 5 On May 5, 2018, Plaintiff saw RN Matthew Fillicetti. Plaintiff reported dark stools. 6 Plaintiff denied abdominal pain, nausea, and vomiting. RN Fillicetti completed a physical 7 exam. Plaintiff had bowel sounds present, his posture was erect, and he had no guarding. 8 RN Fillicetti referred him to a provider. (Id. ¶ 33.) 9 On May 9, 2018, Plaintiff saw NP Thomas. Plaintiff complained of bloody stools 10 and stomach pain. Plaintiff denied nausea or vomiting. NP Thomas completed a physical 11 exam. Plaintiff’s abdomen was soft, bowel sounds were present, and there was mild 12 tenderness in the lower quadrant. NP Thomas noted the colonoscopy was still pending. 13 (Id. ¶ 34.) The same day, Plaintiff’s Hepatitis A test returned as negative. (Id. ¶ 35.) 14 On May 10, 2018, Dr. Sanjay Verma completed a colonoscopy. Dr. Verma assessed 15 two colonic polyps, diverticulosis, and hemorrhoids. Dr. Verma recommended a repeat 16 colonoscopy in three years, and CBC and iron studies in three months. (Id. ¶ 36.) 17 On May 15, 2018, Plaintiff saw NP Thomas. NP Thomas noted he was still waiting 18 on the colonoscopy report. Plaintiff reported bloody stools. He denied weight loss. NP 19 Thomas completed a physical exam. Plaintiff’s abdomen was soft, non-tender, and bowel 20 sounds were present. NP Thomas renewed Omeprazole. (Id. ¶ 37.) 21 The same day, Plaintiff saw RN Augustus Asenguah. Plaintiff reported abdominal 22 pain. RN Asenguah completed a physical exam. Plaintiff’s abdomen was soft, non-tender, 23 and bowel sounds were present. Plaintiff stated his pain was tolerable. RN Asenguah 24 reminded Plaintiff to take it easy and pace himself. (Id. ¶ 38.) 25 On June 19, 2018, Plaintiff saw NP Thomas for chronic care. Plaintiff had a history 26 of tattoos and intravenous drug use. Plaintiff reported being a current smoker and he was 27 167 pounds. He denied symptoms, a history of ascites, encephalopathy, and bleeding, and 28

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1 was immune to Hepatitis A. NP Thomas noted an APRI score of 0.9. NP Thomas ordered 2 the pneumococcal vaccine and another diagnostic panel. (Id. ¶ 39.) 3 On July 21, 2018, Plaintiff received the pneumococcal vaccine. (Id. ¶ 40.) 4 On August 23, 2018, Plaintiff submitted an HNR, stating he was losing weight and 5 muscle mass. (Id. ¶ 41.) The following day, Plaintiff saw RN Asenguah. Plaintiff reported 6 losing weight and muscle mass and feeling fatigued. He was referred to a provider. (Id. ¶ 7 42.) 8 On August 29, 2018, Plaintiff saw NP Thomas. Plaintiff reported a cyst on his 9 testicles that caused him pain. Plaintiff reported losing seven pounds since July. However, 10 he weighed just four pounds less at 163 pounds. NP Thomas completed a physical 11 examination. Plaintiff had tenderness upon palpation to his left testicle. NP Thomas 12 ordered a CEA, diagnostic panel, urine test, Hepatitis B test, and HIV test and submitted a 13 consult for an abdominal ultrasound. Plaintiff was negative for HIV, Chlamydia, 14 gonorrhea, and Hepatitis B. Plaintiff’s CEA was in the normal range for being a smoker. 15 On September 12, 2018, Plaintiff’s APRI score was 1.845 and 2.338 based upon 16 two laboratory tests. (Id. ¶ 44.) 17 On October 4, 2018, Plaintiff saw Dr. Christopher Johnson for his complaints of 18 weight loss. Plaintiff was 162 pounds. His laboratory work had returned as normal. Dr. 19 Johnson recommended continued exercise and eating meals. Dr. Johnson also renewed 20 Excedrin, which was dispensed through January 6, 2019. (Id. ¶ 45.) 21 On October 26, 2018, the abdominal ultrasound consult was assigned an ATP. 22 Medical necessity was not met as there was no evidence of weight loss, and his APRI score 23 and Fibrosis did not indicate cirrhosis. (Id. ¶ 46.) 24 That same day, Plaintiff was transferred from ASPC-Eyman to ASPC-Florence with 25 his medical file and medications. (Id. ¶ 47.) 26 On December 3, 2018, Plaintiff submitted an HNR, requesting treatment for his 27 scrotal cyst and Hepatitis C. (Id. ¶ 48.) The same day, Plaintiff saw RN Carrie Andrews. 28 Plaintiff reported that the cyst on his scrotum was painful, occasionally had drainage, and

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1 had increased in size. Plaintiff also requested Hepatitis B and C treatment. Nurse Andrews 2 completed a physical examination. Plaintiff weighed 165 pounds. The cyst was 3 approximately 0.5 centimeters and had tenderness upon palpation. However, there was no 4 drainage. RN Andrews referred him to a provider. (Id. ¶ 49.) 5 On December 15, 2018, Plaintiff saw NP Michael Brathwaite for chronic care. 6 Plaintiff weighed 168 pounds. During the appointment, Plaintiff became irate and 7 disrespectful. NP Brathwaite noted an APRI score of 1.7. NP Brathwaite ordered labs, 8 including a Fibrotest, RNA, diagnostic panel, and urinalysis, and rescheduled the chronic 9 care appointment due to Plaintiff’s behavior. Plaintiff’s urinalysis was negative. (Id. ¶ 10 50.) 11 On December 17, 2018, Plaintiff saw Defendant NP Dorothy Igwe. Plaintiff 12 requested Hepatitis B and C treatment, and removal and biopsy of his scrotal cyst. Plaintiff 13 reported he was diagnosed with Hepatitis C in 2008. He denied intravenous drug use since 14 2014, and his last tattoo was in 2015. Plaintiff reported smoking for 20 years and that he 15 had quit two weeks prior. Plaintiff reported he had the cyst on his scrotum for about a year. 16 He stated it created constant irritation that make it uncomfortable and had occasional 17 oozing. Defendant Igwe completed a physical exam. She noted a small palpable cyst that 18 was smaller than one centimeter. She noted the measurement of the area so that it could 19 be referenced for change in size at later evaluations. She observed no color change, 20 swelling, edema, lesions, or penile discharge. There was no indication that the cyst was 21 infected. (Id. ¶ 51.) 22 Defendant Igwe reviewed Plaintiff’s recent laboratory results and calculated his 23 APRI score. She noted his APRI score had increased. However, based upon his laboratory 24 results and her assessment, there was no evidence that Plaintiff had cirrhosis. Defendant 25 Igwe reviewed the ATP plan of the ultrasound and the colonoscopy report. She ensured 26 that both had been reviewed with Plaintiff. She then recommended an x-ray because she 27 suspected Plaintiff may be suffering from constipation. Defendant Igwe also ordered a 28 CBC, hemoccult test, iron studies, and a repeat colonoscopy in three years, pursuant to Dr.

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1 Verma’s recommendation. Defendant Igwe noted Plaintiff had an active prescription for 2 Excedrin. Defendant Igwe reminded Plaintiff to avoid high risk behaviors. Plaintiff was 3 very argumentative during the visit, and Defendant Igwe had to remind him to use 4 respectful language. Plaintiff’s iron was normal, but he had slightly high TIBC, which 5 indicated a possible minimal iron deficiency. Plaintiff’s CBC was also normal. Plaintiff’s 6 x-ray showed a large volume of stool, no free air, bowel obstruction, or pathologic 7 calcifications. The results indicated Plaintiff had constipation, but no other issues. (Id.) 8 The same day, Plaintiff submitted an HNR, requesting a biopsy of his scrotal cyst. (Id. ¶ 9 52.) 10 On December 20, 2018, Plaintiff’s APRI score was 0.897. (Id. ¶ 53.) Plaintiff’s 11 CTP total was 5 points, which is the lowest score possible and is considered Class A. (Id. 12 ¶ 107.) Among patients with cirrhosis, which Plaintiff did not have, Class A reflects the 13 best liver compensation. (Id. ¶ 7.) 14 On January 22, 2019, Plaintiff submitted a grievance and asked for Hepatitis B and 15 C treatment. (Id. ¶ 54.) 16 On January 29, 2019, Plaintiff saw Defendant Igwe regarding his gastroenterology 17 imaging. Plaintiff was disrespectful and stated, “You are not doing any shit for me.” 18 Plaintiff would not cooperate with her assessment. Therefore, Defendant Igwe informed 19 Plaintiff that she would end the visit if he continued not to cooperate. Plaintiff stated he 20 would tell his lawyer to sue her and then left. (Id. ¶ 55.) 21 The same day, Defendant Perkins responded to Plaintiff’s formal grievance dated 22 January 22, 2019. Perkins reviewed the medical record and grievance and responded that 23 based upon his review, providers had determined that Plaintiff did not have Hepatitis B. 24 Plaintiff was priority level 2 based upon clinical indications from providers, including his 25 APRI score. Defendant Perkins informed Plaintiff that Corizon followed the BOP 26 guidelines and the Health Services Technical Manual, and he was not the appropriate 27 priority level for treatment. As such, his providers would continue to monitor his Hepatitis 28 C. (Id. ¶ 56.)

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1 On February 11, 2019, Plaintiff submitted two HNRs with Defendant Igwe’s name 2 at the top, requesting a biopsy for his cyst and Hepatitis treatment. (Id. ¶ 57.) 3 On February 12, 2019, Plaintiff saw Nurse Andrews. Plaintiff requested a biopsy 4 of the cyst on his scrotum. Nurse Andrews completed a physical examination and observed 5 that the bump on his scrotum was 1 centimeter. Plaintiff denied pain and stated he was 6 concerned about cancer. He saw her again later that day. He requested a liver biopsy and 7 treatment of Hepatitis C. (Id. ¶ 58.) 8 On February 15, 2019, Plaintiff wrote two inmate letters. He requested Hepatitis B 9 and C treatment, and a biopsy of his scrotal cyst. (Id. ¶ 59.) 10 On February 18, 2019, Defendant Igwe ordered a Hepatitis C genotype test. (Id. ¶ 11 60.) 12 On February 20, 2019, Plaintiff saw Defendant Igwe and requested a biopsy of his 13 scrotal cyst. He reported pain and that the cyst had been splitting and bleeding 14 intermittently. Plaintiff reported the cyst was increasing in size and getting worse. Plaintiff 15 reported constipation and occasional bloody stools. Plaintiff stated his colonoscopy results 16 were not previously reviewed with him. Plaintiff denied dysuria, swelling, and penile 17 discharge. Plaintiff requested a liver biopsy and Hepatitis C treatment. Defendant Igwe 18 completed a physical examination and observed a cyst measuring 0.7 x 0.7 centimeters. 19 There was no bleeding, discharge, rash, edema, erythema, or lesions. Moreover, the cyst 20 did not appear to be bigger than at the last exam. There was no indication of infection. (Id. 21 ¶ 61.) 22 Based upon Plaintiff’s laboratory results and Defendant Igwe’s assessment, there 23 was still no indication that Plaintiff was suffering from cirrhosis. Plaintiff’s APRI score 24 had lowered, he had no symptoms, and his laboratory results did not indicate fibrosis or 25 decreased liver function. Therefore, Hepatitis C treatment was not indicated. Defendant 26 Igwe reviewed the previous ultrasound and colonoscopy results and explained the results 27 to Plaintiff. Defendant Igwe ordered a urinalysis and urine culture to completely rule out 28 infection of the scrotal cyst, and she ordered a hemoccult for any possible additional

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1 gastrointestinal issues. She prescribed Docusate and Lactulose to treat Plaintiff’s 2 constipation andemailed the Hepatitis C committee about possible treatment to reassure 3 Plaintiff that he was not eligible for treatment. Based upon her conversation with Plaintiff, 4 she believed he wanted a second opinion that he was not a priority for treatment. Defendant 5 Igwe renewed Excedrin. Plaintiff’s urinalysis and urine culture were negative, which ruled 6 out infection of the cyst. Therefore, there was no medical indication for biopsy or an 7 additional ultrasound. (Id.) 8 On February 21, 2019, Plaintiff had a Hepatitis C genotype test which reported 9 Hepatitis C genotype 3. This test also confirms ongoing Hepatitis C infection and is 10 important in selecting specific treatment. It does not correlate with severity of liver damage 11 and does not have a role in monitoring Hepatitis C or prioritizing treatment. Hepatitis C 12 genotype 3 is often associated with significant liver inflammation, which can elevate the 13 blood level of the AST enzyme from the liver. Since that enzyme level appears in the 14 numerator of the APRI, it can elevate the APRI in the absence of advanced liver fibrosis. 15 The Fibrotest/Actitest, or other more specific tests for liver fibrosis, can clarify the cause 16 of the elevated APRI, as occurred in Plaintiff’s case. Plaintiff’s Fibrotest/Actitest did not 17 indicate advanced (stage 3 or 4) liver fibrosis but did indicate significant inflammation. 18 Significant inflammation does not prioritize treatment as there was no evidence of 19 advanced fibrosis or inadequate liver function. (Id. ¶ 110.) 20 On February 27, 2019, Defendant Vanessa Headstream responded to Plaintiff’s 21 inmate letters. Defendant Headstream reviewed Plaintiff’s medical records. Based upon 22 her review, she informed Plaintiff that he would be notified if he was prioritized for 23 treatment based upon the BOP guidelines utilized by the contract healthcare vendor. She 24 further informed him that his Hepatitis B results reported negative test results. Finally, she 25 informed him that the biopsy of the scrotal cyst was a clinical decision, rather than an 26 administrative decision. Her responses were the same to Plaintiff’s letters because he 27 complained of the same issues in both letters. (Id. ¶ 62.) 28 On March 7, 2019, NP Hahn renewed Excedrin, Lactulose, and Docusate. (Id. ¶ 63.)

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1 On March 18, 2019, Plaintiff submitted an HNR regarding his scrotal cyst. Nurse 2 Andrews responded that his ultrasound showed no evidence of testicular torsion or 3 epididymitis. (Id. ¶ 64.) 4 On March 28, 2019, Plaintiff reported he had a bowel movement daily with no 5 concerns, and he denied nausea, vomiting, diarrhea, or constipation. Plaintiff did not 6 discuss his scrotal cyst or Hepatitis C with Defendant Igwe during this encounter. (Id. 7 ¶ 65.) 8 On April 17, 2019, Defendant Igwe renewed Docusate. (Id. ¶ 66.) 9 On May 12, 2019, Plaintiff submitted an HNR requesting treatment for Hepatitis B 10 and C. Nurse Rentz responded that a provider had explained the criteria for treatment and 11 that Plaintiff could submit an inmate letter. (Id. ¶ 67.) 12 On May 28, 2019, Defendant Igwe ordered a diagnostic panel and an INR test. (Id. 13 ¶ 68.) The following day, Defendant Igwe renewed Docusate. (Id. ¶ 69.) 14 On May 30, 2019, Plaintiff’s APRI score was 1.206. (Id. ¶ 70.) 15 On June 1, 2019, Defendant Dr. Rodney Stewart prescribed Ibuprofen 600 mg. (Id. 16 ¶ 71.) 17 On June 4, 2019, Defendant Igwe prescribed Ibuprofen 600 mg. (Id. ¶ 72.) 18 On June 8, 2019, Plaintiff submitted two HNRs requesting treatment for Hepatitis 19 B and C and a scrotal cyst biopsy. Nurse Cluff referred him to a provider. Plaintiff’s HNR 20 regarding Hepatitis B and C had Defendants Igwe and Stewart’s names at the top. (Id. 21 ¶ 73.) 22 On June 10, 2019, Plaintiff saw Defendant Igwe for chronic care. Plaintiff requested 23 Hepatitis C treatment and the Hepatitis B vaccine. Plaintiff reported abdominal discomfort 24 and stool leakage, but denied vomiting, abdominal pain, swelling, bleeding, bruising, 25 icterus, jaundice, cold intolerance, pruritus, fatigue, leg swelling, and appetite issues. 26 Plaintiff reported smoking seven cigarettes a day. Defendant Igwe reviewed his recent 27 APRI score, which had increased slightly. Defendant Igwe reviewed the Hepatitis C 28 committee denial of treatment with Plaintiff. The Hepatitis C committee reviewed

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1 Plaintiff’s APRI score, albumin, bilirubin, platelets, and CTP score and noted Plaintiff’s 2 albumin, bilirubin, and platelets were normal, and Defendant Igwe agreed these results 3 were normal. Plaintiff’s CTP score was 5, which is the lowest score. Plaintiff had no 4 history of encephalopathy, ascites, or esophageal bleed. Therefore, Plaintiff was 5 considered priority 3 and was not a priority for treatment. Defendant Igwe agreed with the 6 committee’s determination and advised Plaintiff to avoid high risk behaviors, quit 7 smoking, and continued monitoring of Hepatitis C. Defendant Igwe offered pain 8 medication, but Plaintiff declined, and Defendant Igwe ordered a stool culture and 9 hemoccult test to evaluate his gastrointestinal symptoms. His hemoccult and stool culture 10 were negative. Therefore, there was no indication of infection or presence of blood, and 11 no further treatment was indicated. (Id. ¶ 74.) 12 On June 12, 2019, Plaintiff saw Defendant Igwe. Plaintiff stated he had a cyst on 13 his scrotum that made him uncomfortable, made it difficult to walk, and it had increased in 14 size. Plaintiff requested pain medication for back and joint pain. Defendant Igwe 15 completed a physical examination and observed a cyst that had no significant change from 16 4 months prior. There was no bleeding, discharge, rash, edema, erythema, or skin lesion. 17 Defendant Igwe also noted his urine culture had no growth. Therefore, there was no 18 indication that his cyst was infected. Defendant Igwe requested a urology consult to rule 19 out other causes of Plaintiff’s cyst. Defendant Igwe reviewed Plaintiff’s Hepatitis B 20 testing, noting Plaintiff was negative for Hepatitis B, and therefore ordered a Hepatitis B 21 vaccine. Finally, Defendant Igwe prescribed alpha lipoic acid, Ibuprofen, and a Ketorolac 22 injection for Plaintiff’s pain. (Id. ¶ 75.) 23 On August 10, 2019, Plaintiff underwent another ultrasound. Dr. Shane Bezzant 24 assessed multiple bilateral epididymal cysts, but no sign of torsion or testicular mass. (Id. 25 ¶ 76.) 26 3. Plaintiff’s Medical Treatment under ADC/Centurion 27 Centurion took over as ADC’s healthcare contractor on July 1, 2019. (Doc. 165 28 (Centurion Defs.’ Statement of Facts) ¶ 1.) Plaintiff has chronic care visits every 6 months

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1 to check on the status of his Hepatitis C. (Id. ¶ 2.) Plaintiff had chronic care visit on 2 December 2, 2019 and a follow-up appointment on December 10, 2019. (Id. ¶¶ 2, 3.) 3 Plaintiff is HIV and Hepatitis B negative. (Id. ¶ 8.) 4 As of December 19, 2019, Plaintiff’s records indicate that he did not meet the 5 criteria for Hepatitis C treatment. (Id. ¶ 5.) Plaintiff has not met the criteria for Hepatitis 6 C treatment for several reasons. As of December 2019, Plaintiff’s Fibrotest/Actitest 7 showed he had scores of F1 and F2 (minimal fibrosis), and his APRI score was 0.762. (Id. 8 ¶¶ 6, 7.) 9 For these reasons, and the fact that he has no indication of cirrhosis—Plaintiff has 10 been placed in a lower priority level (which means that those patients scoring higher or 11 with more complicating conditions would be priority for treatment first). With a Fibrosis 12 score of F1-F2, absence of any co-infection and absence of any evidence of liver cirrhosis, 13 Plaintiff is not in a priority group for treatment under Centurion’s policies. 14 Centurion does not rely only on APRI scores in determining treatment priority. 15 Centurion prioritizes those with fibrosis scores of F3 and F4 for treatment. Centurion will 16 consider an F2 if there is co-infection such as Hepatitis B or HIV or another co-morbid 17 condition that increases the health risks. (Id. ¶ 11.) 18 Centurion’s process is very similar to the triaging of patients for treatment in the 19 community and matches the most recent Hepatitis C Guidelines as published in May 2018 20 by the AASLD (American Association for the Study of Liver Diseases), and by IDSA 21 (Infectious Diseases Society of America); the process is also consistent with the latest 22 November 2019 AASLD/ISLD guidelines that center on testing, evaluation and monitoring 23 recommendations for those for whom treatment is deferred (like in the prison setting for 24 those with lower fibrosis scores or who are in the phases of counseling, assessment and 25 workup), as well as ADC’s policy regarding Hepatitis C. (Id. ¶ 12.) 26 Centurion has a specialist in Hepatitis C who advises regarding testing and 27 treatment, including reviewing all patients that reach a priority level for treatment. (Id. ¶ 28 13.) Further, under Centurion’s policies, patients who are positive for Hepatitis C, but are

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1 not progressing to a higher priority, continue to be followed every 6 months with laboratory 2 testing. (Id. ¶ 14.) If Plaintiff’s results show he has progressed to F3 or F4, his case will 3 be re-evaluated by the Hepatitis C specialist at that time to determine if he has become a 4 candidate for direct acting antivirals. (Id. ¶ 15.) 5 Defendant Igwe has seen and treated Plaintiff to address his concerns regarding his 6 scrotal cysts, as well as other complaints regarding shoulder pain, stomach pain, and 7 hemorrhoids to include having ultrasound and x-rays performed, requesting approval of a 8 colonoscopy, referring for outside gastroenterology and urology appointments, and 9 offering pain medications. (Id. ¶ 16.) 10 On January 7, 2020, Defendant Igwe saw Plaintiff to discuss x-rays and cortisone 11 injections and advised him regarding his Hepatitis C and again emailed the Hepatitis C 12 Committee regarding Plaintiff’s latest test results. (Id. ¶ 19.) The next day, Defendant 13 Igwe gave Plaintiff cortisone injections in his shoulder. (Id. ¶ 20.) 14 Following the December chronic care visit, Plaintiff received another appointment 15 regarding his Hepatitis C in January 2020, and he was notified that his test results 16 confirmed he still had a fibrosis score of F1, which indicates minimal fibrosis, and no 17 finding of cirrhosis; Defendant Igwe sent follow-up emails to the Hepatitis C Committee 18 regarding the test results and any further recommendations for his Hepatitis C. (Id. ¶ 21.) 19 On January 17, 2020, Plaintiff was sent to an off-site consultation with urologist 20 Peter Niemczyk, who recommended Plaintiff undergo a spermatocelectomy in order to 21 remove sperm-filled cysts inside his scrotum. (Id. ¶ 22.) 22 On February 4, 2020, Defendant RN Pontious entered a prescription order for 23 Montelukast per direction from Defendant Igwe. (Id. ¶ 24.) 24 Centurion approved the surgical procedure and Plaintiff underwent the 25 spermatocelectomy on February 13, 2020, without incident and with instructions to follow 26 up with Dr. Niemczyk as soon as possible. (Id. ¶ 25.) In addition to being seen by a nurse 27 upon his return from the surgical procedure and having an order put in for pain medication, 28 a Centurion nurse followed up with Plaintiff the next day to evaluate his scrotal incisions

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1 and educate him on proper postsurgical care which included medical ice, wearing scrotal 2 support, and monitoring the surgical site for infection; Plaintiff indicated he did not want 3 to take any pain medications. (Id. ¶ 26.) 4 By February 24, 2020, Centurion providers noted the surgical incision was well- 5 healed with no sign of infection, and they continued to monitor him for infection while a 6 follow-up appointment with Dr. Niemczyk was scheduled. (Id. ¶ 27.) 7 On May 25, 2020, Plaintiff presented for a health services encounter with Defendant 8 Igwe for his Hepatitis C, but denied any symptoms including abdominal pain/swelling, 9 bleeding, bruising problems, jaundice, leg swelling, temperature intolerance, or fatigue, 10 and Defendant Igwe went over diagnostic panel results as well; Plaintiff remained stable, 11 and Defendant Igwe also followed up regarding scheduling of the post-operative 12 examination. (Id. ¶ 28.) 13 Plaintiff attended a post-operative urology consult on July 18, 2020, and Dr. 14 Niemczyk noted that no follow-up was needed, other than ordering a sperm count test to 15 be done by an off-site provider in April of 2021; he also did not note any infection or any 16 other injury of the surgical site. (Id. ¶ 29.) Defendant Pontius reviewed Dr. Niemczyk’s 17 recommendations and determined no follow-up scheduling was necessary. (Id. ¶ 30.) 18 Other than reviewing the July 18, 2020 urology specialist notes regarding no need 19 for follow-up, and ordering the prescription for Plaintiff on February 4, 2020, per the 20 direction of Defendant Igwe, the only other interaction or role in Plaintiff’s care that 21 Defendant Pontious had was to renew other medications at the direction Defendant Igwe 22 (no encounter with Plaintiff), and one immunization/flu vaccination (mass vaccination— 23 prisoners lined up and no substantive interaction). (Id. ¶ 33.) 24 C. Discussion 25 1. Hepatitis C and Scrotal Cyst (Counts 1 and 2) 26 Defendants do not dispute that Plaintiff’s Hepatitis C and scrotal cyst constitute 27 serious medical needs, and the evidence that Plaintiff’s providers thought his Hepatitis C 28 and scrotal cyst were worthy of comment and monitoring through chronic care visits,

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1 regular lab tests, and ultrasound testing is sufficient to make this showing. The Court’s 2 analysis therefore turns on whether Defendants were deliberately indifferent to Plaintiff’s 3 serious medical needs. This inquiry “must be individualized and focus on the duties and 4 responsibilities of each individual defendant whose acts or omissions are alleged to have 5 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); 6 see Rizzo v. Goode, 423 U.S. 362, 370–71, 375–77 (1976). 7 a. Defendants Stewart, Robertson, Headstream, and Perkins 8 The record shows that Defendants Stewart, Robertson, and Headstream had minimal 9 involvement in Plaintiff’s medical care. 10 In response to Plaintiff’s January 22, 2019 grievance asking for Hepatitis B and C 11 treatment, Defendant Perkins reviewed Plaintiff’s medical record and informed Plaintiff 12 that his providers had determined that he did not have Hepatitis B and that he was priority 13 level 2 for Hepatitis C treatment based upon clinical indications, including his APRI score. 14 (Doc. 153 ¶ 54, 56.) Defendant Perkins informed Plaintiff that Corizon followed the BOP 15 guidelines and the Health Services Technical Manual, that he was not the appropriate 16 priority level for treatment based on these guidelines, and that his providers would continue 17 to monitor his Hepatitis C. (Id. ¶¶ 56.) 18 On February 27, 2019, Defendant Vanessa Headstream responded to Plaintiff’s 19 inmate letters regarding Hepatitis C treatment, stating that she had reviewed Plaintiff’s 20 medical records, and she informed Plaintiff that he would be notified if he was prioritized 21 for treatment based upon the BOP guidelines utilized by the contract healthcare vendor. 22 (Id. 153 ¶ 62.) She further informed Plaintiff that his Hepatitis B test results were negative 23 and that the biopsy of the scrotal cyst was a clinical decision, rather than an administrative 24 decision. (Id.) Defendant Headstrem is a registered nurse, but she serves in an 25 administrative capacity only and does not personally provide medical treatment to 26 prisoners, nor does she have authority to order medical providers to provide certain 27 treatments. (Id. ¶ 78.) 28

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1 On June 1, 2019, Defendant Stewart prescribed Ibuprofen 600 mg. (Id. ¶ 71.) On 2 June 8, 2019, Plaintiff submitted two HNRs—with Defendant Igwe and Stewart’s names 3 at the top—requesting treatment for Hepatitis B and C and a scrotal cyst biopsy. (Id. ¶ 73.) 4 In response, Nurse Cluff referred him to a provider, and Plaintiff was seen by Defendant 5 Igwe for chronic care two days later. (Id. ¶ 74.) 6 The record does not show that Defendant Robertson had any direct interaction with 7 Plaintiff. 8 On these facts, the record does not support a finding that Defendants Stewart, 9 Robertson, and Headstream’s limited involvement in Plaintiff’s medical treatment 10 amounted to deliberate indifference, and Plaintiff’s statements regarding their involvement 11 in the Second Amended Complaint fail to create a genuine issue of fact for trial. 12 Specifically, Plaintiff asserts that he submitted a grievance on January 22, 2019 13 regarding his Hepatitis C, and Defendant Perkins responded that Plaintiff’s “current APRI 14 score [wa]s 0.871[,] which did not warrant treatment.” (Doc. 116 at 10.) In addition, 15 Plaintiff asserts that he submitted an informal complaint to Defendant Perkins on March 16 29, 2019, but Defendant Perkins did not respond. (Id. at 17.) Plaintiff also asserts that he 17 sent multiple inmate letters to Defendants Headstream and Robertson in February and April 18 2019 regarding his Hepatitis C and the cyst on his scrotum. (Id. at 16–17.) Plaintiff asserts 19 that Defendant Robertson did not respond, and that Defendant Headstream provided a 20 “form” response that “countless other prisoners have received.” (Id.) Plaintiff states that 21 on May 12, 2019, he submitted an HNR to Defendant Stewart requesting Hepatitis B and 22 C treatment, and in response, Plaintiff was told that the provider had explained the Hepatitis 23 C treatment and criteria and that he could submit an inmate letter. (Id. at 9.) Plaintiff also 24 asserts that Defendant Igwe told him that Defendants Stewart and Robertson ordered 25 employees not to give patients pain medications. (Id. at 11.) 26 However, these assertions, many of which are refuted by Plaintiff’s medical records, 27 are insufficient to create a genuine issue of material fact for trial that Defendants Stewart, 28

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1 Robertson, and Headstream were deliberately indifferent to Plaintiff’s serious medical 2 needs. 3 First, the record shows that when he responded to Plaintiff’s January 2019 4 grievance, Defendant Perkins was a Facility Health Administrator, whose duties included 5 reviewing and responding to formal grievances. (Id. ¶ 82.) Defendant Perkins’ duties did 6 not include personally providing medical care to prisoners, and he was not authorized to 7 make clinical decisions or direct Corizon medical providers to provide particular treatment 8 to prisoners. (Id.) When responding to grievances, Defendant Perkins reviewed prisoners’ 9 medical charts, conferred with providers, and escalated any issues to Corizon officials with 10 review authority, including the Site Medical Director or Regional Medical Director, when 11 appropriate. (Id.) Similarly, the record shows that Defendant Headstream responded to 12 Plaintiff’s February 2019 inmate letter and informed him that he was negative for Hepatitis 13 B and that he would be notified if he was prioritized for Hepatitis C treatment. (Id. ¶ 62.) 14 There is no evidence that Defendants Headstream and Perkins were authorized to 15 dictate Plaintiff’s treatment or that either of them was authorized to order Hepatitis C 16 treatment for Plaintiff or any other prisoners. In fact, the evidence shows that authorizing 17 Hepatitis C treatment was the responsibility of the Corizon Hepatitis C Committee and 18 Centurion’s Hepatitis C specialist. (Doc. 153 ¶ 105; Doc. 165 ¶¶ 13–15.) Even if 19 Defendant Headstream’s responses to subsequent inmate letters mirrored her February 20 2019 inmate letter response, this is not sufficient to show that she deliberately disregarded 21 Plaintiff’s serious medical needs where Plaintiff’s medical records showed that his priority 22 for Hepatitis C treatment had not changed and that cirrhosis and infection of the scrotal 23 cyst had recently been ruled out. (See id. ¶¶ 61, 110.) 24 Additionally, even if Plaintiff addressed inmate letters to Defendants Perkins and 25 Robertson that went unanswered, these letters have not been provided in the record. 26 Defendant Robertson asserts that he never received any inmate letters from Plaintiff. (Id. 27 ¶ 79.) Absent evidence additional facts regarding the specific contents of the letters or 28 evidence showing that Defendants Perkins and Robertson received the letters and

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1 disregarded them, Plaintiff’s unsupported assertions are insufficient to create a genuine 2 issue of fact to survive summary judgment. 3 Lastly, Plaintiff’s statement that Defendants Stewart and Robertson ordered Corizon 4 employees not to prescribe pain medication is belied by evidence in the record showing 5 that Plaintiff was prescribed Ibuprofen, Excedrin, and a Ketorolac injection to manage his 6 pain, including a June 1, 2019 prescription for Ibuprofen that was ordered by Defendant 7 Stewart. (Id. ¶¶ 15, 29, 51, 71–72, 75.) 8 Defendants Perkins and Headstream’s responses to Plaintiff’s administrative 9 complaints do not show that these Defendants ignored any serious medical needs or 10 “knowingly fail[ed] to respond to [Plaintiff’s] requests for help.” Peralta v. Dillard, 744 11 F.3d 1076, 1086 (9th Cir. 2014). Instead, they reviewed Plaintiff’s medical records and 12 verified that his medical providers made their treatment decisions based on their 13 monitoring of Plaintiff’s lab results and symptomology, and they confirmed that, based on 14 the relevant policies and guidelines for treating Hepatitis C at the time, Plaintiff was 15 receiving appropriate care. 16 On these facts, the record does not support a finding that Defendants Stewart, 17 Robertson, Headstream, and Perkins’ minimal involvement in the treatment of Plaintiff’s 18 Hepatitis C and scrotal cyst amounted to deliberate indifference, and Plaintiff has failed to 19 create a genuine issue of fact as to these issues. Accordingly, Plaintiff’s Eighth 20 Amendment claims against Defendants Stewart, Robertson, Headstream, and Perkins 21 regarding treatment of his Hepatitis C and scrotal cyst will be dismissed. 22 b. Defendant Igwe 23 The record does not support a finding that Defendant Igwe’s response to Plaintiff’s 24 serious medical needs amounted to deliberate indifference. 25 Plaintiff asserts that during his December 17, 2018 appointment, Defendant Igwe 26 would not address Plaintiff’s medical issues or concerns, would not allow Plaintiff to take 27 notes, and, when Plaintiff requested a liver biopsy and Hepatitis B and C treatment or cures, 28 Igwe said that Plaintiff did not “get to dictate treatment or who provides the treatment.”

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1 (Doc. 116 at 8–9.) Plaintiff contends that his recent test results showed he had abnormally 2 high AST, ALT, viral load, and “Log-10”; minimal fibrosis, and significant liver 3 inflammation. (Id.) 4 Plaintiff’s assertion that Defendant Igwe refused to address his medical concerns on 5 December 17, 2018 is not supported by his medical records, which show that on December 6 17, 2018, Plaintiff saw Defendant Igwe and requested Hepatitis B and C treatment, and 7 removal and biopsy of his scrotal cyst. (Doc. 153 ¶ 51.) Upon physical examination, 8 Defendant Igwe noted a small palpable cyst that was smaller than one centimeter but 9 observed no color change, swelling, edema, lesions, or penile discharge, and there was no 10 indication that the cyst was infected. (Id.) Defendant Igwe reviewed Plaintiff’s recent 11 laboratory results and calculated his APRI score and noted his APRI score had increased. 12 (Id.) However, based upon Plaintiff’s laboratory results and her assessment, there was no 13 evidence that Plaintiff had cirrhosis. Defendant Igwe reviewed the ATP for an ultrasound 14 and the colonoscopy report and ensured that both had been reviewed with Plaintiff. (Id.) 15 She recommended an x-ray because she suspected Plaintiff may be suffering from 16 constipation. (Id.) Defendant Igwe also ordered a CBC, hemoccult test, iron studies, and 17 a repeat colonoscopy in three years, pursuant to Dr. Verma’s recommendation. (Id.) 18 Defendant Igwe noted Plaintiff had an active prescription for Excedrin and reminded 19 Plaintiff to avoid high risk behaviors. (Id.) Plaintiff’s iron was normal, but he had slightly 20 high TIBC, which indicated a possible minimal iron deficiency, and his CBC was also 21 normal. Plaintiff’s x-ray showed a large volume of stool with no free air, bowel 22 obstruction, or pathologic calcifications, which indicated Plaintiff had constipation, but no 23 other issues. (Id.) 24 Plaintiff states that he was called to the medical department on January 29, 2019, 25 but Defendant Igwe refused to see him because Plaintiff had allegedly cursed at her. (Doc. 26 116 at 9.) However, Plaintiff’s medical records show that he saw Defendant Igwe on 27 January 29, 2019 regarding his gastroenterology imaging. (Doc. 153 ¶ 55.) Defendant 28 Igwe noted that Plaintiff was being disrespectful, and that Plaintiff told her, “You are not

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1 doing any shit for me.” (Id.) Defendant Igwe noted that Plaintiff would not cooperate 2 during the assessment, and Defendant Igwe informed Plaintiff that she would end the visit 3 if he continued not to cooperate. (Id.) Plaintiff stated he would tell his lawyer to sue her 4 and then left. (Id.) Construing the facts in Plaintiff’s favor, even if Defendant Igwe ended 5 the appointment early, Plaintiff does not deny that he cursed at her, and it was not 6 deliberately indifferent to cut short an appointment with a patient who had become 7 aggressive and disruptive. 8 On February 11, 2019, Plaintiff submitted two HNRs with Defendant Igwe’s name 9 at the top, requesting a biopsy for his cyst and Hepatitis treatment. (Id. ¶ 57.) On February 10 18, 2019, Defendant Igwe ordered a Hepatitis C genotype test. (Id. ¶ 60.) 11 Plaintiff asserts he submitted HNRs to Defendant Igwe in December 2018 and 12 February and March 2019 requesting that the cyst on his scrotum be removed and biopsied 13 to test for cancer and indicating that the cyst continued to increase in size and continued to 14 cause discomfort. (Doc. 116 at 16–17.) Plaintiff asserts that on February 20, 2019, 15 Defendant Igwe refused to request a biopsy, laughed at Plaintiff, and told him that 16 Defendant “Corizon will not pay for that[;] they already performed an ultrasound, and 17 you[’]r[e] a prisoner; what more do you want[?]” (Id.) 18 Plaintiff’s medical records show that on February 20, 2019, he saw Defendant Igwe 19 and requested a biopsy of his scrotal cyst. (Doc. 153 ¶ 61.) Plaintiff reported pain and that 20 the cyst had been splitting and bleeding intermittently, was increasing in size, and getting 21 worse. (Id.) Plaintiff reported constipation and occasional bloody stools and that his 22 colonoscopy results were not previously reviewed with him. (Id.) Plaintiff denied dysuria, 23 swelling, and penile discharge. (Id.) Plaintiff requested a liver biopsy and Hepatitis C 24 treatment. (Id.) Defendant Igwe completed a physical examination and observed a cyst 25 measuring 0.7 x 0.7 centimeters but did not observe any bleeding, discharge, rash, edema, 26 erythema, or lesions. (Id.) Moreover, the cyst did not appear to be bigger than her last 27 exam, and there was no indication of infection. (Id.) Based upon Plaintiff’s laboratory 28 results and Defendant Igwe’s assessment, there was still no indication that Plaintiff was

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1 suffering from cirrhosis. (Id.) Plaintiff’s APRI score had lowered, he had no symptoms 2 of advanced fibrosis, and his laboratory results did not indicate fibrosis or decreased liver 3 function. (Id.) Therefore, Hepatitis C treatment was not indicated. (Id.) Defendant Igwe 4 reviewed the previous ultrasound and colonoscopy results and explained the results to 5 Plaintiff, ordered a urinalysis and urine culture to completely rule out infection of the 6 scrotal cyst, and ordered a hemoccult for any possible additional gastrointestinal issues. 7 (Id.) She prescribed Docusate and Lactulose to treat Plaintiff’s constipation and emailed 8 the Hepatitis C Committee about possible treatment to reassure Plaintiff that he was not 9 eligible for treatment. (Id.) Based upon her conversation with Plaintiff, Defendant Igwe 10 believed he wanted a second opinion that he was not a priority for treatment. (Id.) 11 Defendant Igwe renewed Excedrin. Plaintiff’s urinalysis and urine culture were negative, 12 which ruled out infection of the cyst. (Id.) Based on her assessment and professional 13 judgment, Defendant Igwe determined there was no medical indication for biopsy or an 14 additional ultrasound. (Id.) 15 During his March 28, 2019 appointment with Defendant Igwe, Plaintiff reported he 16 had a bowel movement daily with no concerns, and he denied nausea, vomiting, diarrhea, 17 or constipation. (Id. ¶ 65.) Plaintiff did not discuss his scrotal cyst or Hepatitis C with 18 Defendant Igwe during this encounter. (Id.) 19 On April 17, 2019, Defendant Igwe renewed Docusate. (Id. ¶ 66.) On May 28, 20 2019, Defendant Igwe ordered a diagnostic panel and an INR test. (Id. ¶ 68.) The 21 following day, Defendant Igwe renewed Docusate. (Id. ¶ 69.) On June 4, 2019, Defendant 22 Igwe prescribed Ibuprofen 600 mg. (Id. ¶ 72.) 23 On June 8, 2019, Plaintiff submitted two HNRs requesting treatment for Hepatitis 24 B and C and a scrotal cyst biopsy. (Id. ¶ 73.) Plaintiff’s HNR regarding Hepatitis B and 25 C had Defendants Igwe and Stewart’s names at the top. (Id.) Plaintiff was seen by 26 Defendant Igwe 2 days later on June 10, 2019 for a chronic care appointment. (Id. ¶ 74.) 27 Plaintiff requested Hepatitis C treatment and the Hepatitis B vaccine and reported 28 abdominal discomfort and stool leakage, but denied vomiting, abdominal pain, swelling,

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1 bleeding, bruising, icterus, jaundice, cold intolerance, pruritus, fatigue, leg swelling, and 2 appetite issues. (Id.) Defendant Igwe reviewed Plaintiff’s recent APRI score, which had 3 increased slightly, and reviewed the Hepatitis C Committee denial of treatment with 4 Plaintiff. (Id.) The Hepatitis C Committee reported reviewing Plaintiff’s APRI score, 5 albumin, bilirubin, platelets, and CTP score and noted that his albumin, bilirubin, and 6 platelets were normal. (Id.) Defendant Igwe agreed these results were normal. (Id.) 7 Plaintiff’s CTP score was 5, which is the lowest score. (Id.) Plaintiff had no history of 8 encephalopathy, ascites, or esophageal bleed. (Id.) Therefore, Plaintiff was considered 9 priority 3 and was not a priority for treatment. (Id.) Defendant Igwe agreed with this 10 determination. (Id.) Defendant Igwe advised Plaintiff to avoid high risk behaviors, quit 11 smoking, and continued monitoring of Hepatitis C. (Id.) Defendant Igwe offered pain 12 medication, but Plaintiff declined. (Id.) Defendant Igwe further ordered a stool culture 13 and hemoccult test to evaluate his gastrointestinal symptoms. (Id.) Plaintiff’s hemoccult 14 and stool culture were negative, and there was no indication of infection or presence of 15 blood, and no further treatment was indicated. (Id.) 16 On June 12, 2019, Plaintiff saw Defendant Igwe and reported he had a cyst on his 17 scrotum that made him uncomfortable, made it difficult to walk, and it had increased in 18 size. (Id. ¶ 75.) Plaintiff requested pain medication for back and joint pain. (Id.) Upon 19 physical examination, Defendant Igwe observed a cyst that had no significant change from 20 four months prior. (Id.) There was no bleeding, discharge, rash, edema, erythema, or skin 21 lesion. (Id.) Defendant Igwe also noted Plaintiff’s urine culture had no growth. (Id.) 22 Therefore, there was no indication that the cyst was infected. (Id.) Defendant Igwe 23 requested a urology consult to rule out other causes of Plaintiff’s cyst. (Id.) Defendant 24 Igwe reviewed Plaintiff’s Hepatitis B testing and noted Plaintiff was negative for Hepatitis 25 B. (Id.) Therefore, Defendant Igwe ordered a Hepatitis B vaccine. (Id.) Finally, 26 Defendant Igwe prescribed alpha lipoic acid, Ibuprofen, and a Ketorolac injection for 27 Plaintiff’s pain. (Id.) 28

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1 On January 7, 2020, Defendant Igwe saw Plaintiff to discuss x-rays and cortisone 2 injections and again advised him regarding his Hepatitis C. (Doc. 165 ¶ 19.) Defendant 3 Igwe notified Plaintiff that his test results confirmed he still had a fibrosis score of F1, 4 which indicates minimal fibrosis, and no finding of cirrhosis; Defendant Igwe sent follow- 5 up emails to the Hepatitis C Committee regarding the test results and any further 6 recommendations for his Hepatitis C. (Id. ¶¶ 19, 21.) The next day, Defendant Igwe gave 7 Plaintiff cortisone injections in his shoulder. (Id. ¶ 20.) 8 On May 25, 2020, Plaintiff had an appointment with Defendant Igwe for his 9 Hepatitis C, and he denied any symptoms including abdominal pain/swelling, bleeding, 10 bruising problems, jaundice, leg swelling, temperature intolerance, or fatigue, and 11 Defendant Igwe went over diagnostic panel results as well; Plaintiff remained stable, and 12 Defendant Igwe also followed up regarding scheduling of the post-operative examination. 13 (Id. ¶ 28.) 14 Plaintiff asserts that at some unspecified time, he told Defendant Igwe he was 15 experiencing “unbearable” stomach pain and pain in his body and that he had previously 16 been prescribed Excedrin, but Defendant Igwe “constantly removed/discontinued” the 17 prescription and has refused to provide Plaintiff with adequate pain management 18 medication. (Doc. 116 at 11.) Plaintiff also states that in February, April, June, and July 19 2019, Plaintiff requested pain management medication from Defendant Igwe, and 20 Defendant Igwe prescribed alpha lipoic acid, even though she knew that does not relieve 21 Plaintiff’s pain. (Id.) But Plaintiff’s medical records show that on various occasions during 22 her treatment of Plaintiff, Defendant Igwe prescribed pain management medications 23 including Excedrin, Ibuprofen, a cortisone injection, and a Ketorolac injection. (Doc. 153 24 ¶¶ 61, 72, 75; Doc. 165 ¶ 20.) 25 Plaintiff also contends that “[o]n many occasions[,]” he told Defendant Igwe “that 26 two cysts in [his] scrotum are causing [him] pain that is unbearable” and that Defendant 27 Igwe told him “that monitoring is sufficient treatment” and that she could not do anything 28 except order an ultrasound. (Doc. 116 at 12, 17–18.) But again, Plaintiff’s statements are

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1 contradicted by his medical records which show that Defendant Igwe consistently 2 responded to his complaints regarding his scrotal cyst including ordering an ultrasound, 3 urinalysis and urine cultures (which were negative), and referring him to a urologist. 4 Plaintiff may have preferred a biopsy or to have the cyst surgically removed, but his mere 5 disagreement with Defendant Igwe’s chosen treatment plan does not support an Eighth 6 Amendment claim, especially where the record shows that Defendant Igwe made such 7 determinations based on her medial training and professional judgment. Sanchez, 891 F.2d 8 at 242. 9 On these facts, Defendants have met their burden at summary judgment of showing 10 that Defendant Igwe responded appropriately to Plaintiff’s serious medical needs. 11 Plaintiff’s medical records show that Defendant Igwe consistently examined him in 12 response to his medical complaints, monitored his conditions, ordered appropriate testing 13 when necessary, forwarded Plaintiff’s results to the Hepatitis C Committee, reviewed the 14 results with Plaintiff, and prescribed medication when necessary. Plaintiff’s statements in 15 the Second Amended Complaint fail to refute the ample evidence in his medical records 16 that shows Defendant Igwe’s responses to his medical complaints and to his serious 17 medical needs were based on her judgment and training and not made with deliberate 18 indifference. 19 Accordingly, Plaintiff’s medical care claims against Defendant Igwe will be 20 dismissed. 21 c. Defendant Corizon 22 The facts do not show that Plaintiff suffered a constitutional violation with respect 23 to his scrotal cyst while under Corizon’s care. The available evidence shows that Corizon 24 providers closely monitored the cyst on Plaintiff’s scrotum. Plaintiff underwent an 25 ultrasound in February 2018, which showed epididymal cyst but no torsion or epididymitis. 26 Plaintiff’s medical records show that the cyst remained small and did not grow 27 significantly. Conservative management was initially chosen as the course of treatment, 28 and Plaintiff’s providers continued to note that there was no bleeding, rash, drainage,

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1 swelling, edema, or discharge. Based on their assessments, Plaintiff’s providers 2 determined that there was no indication that the cyst was infected or that a biopsy was 3 medically necessary. On these facts, the record does not support a finding that the 4 Corizon’s staff’s treatment of Plaintiff’s scrotal cyst amounted to deliberate indifference. 5 On the other hand, construing the facts in Plaintiff’s favor, the record contains 6 sufficient evidence to create a genuine issue of material fact that Plaintiff suffered a 7 constitutional deprivation with respect to his Hepatitis C care under Corizon. Despite 8 having a standard of care under which prisoners with APRI scores of 2.0 or greater are 9 given top priority for Hepatitis C treatment, it does not appear that Plaintiff was considered 10 for treatment when his APRI score was 2.329 on December 15, 2017 or when his APRI 11 score was 2.338 on September 12, 2018 according to one of two lab tests. (Doc. 153 ¶¶ 12 10, 44.) Under the BOP Manual and under the ADC’s Clinical Practice Guidelines, 13 patients with APRI score of 2.0 or greater are prioritized for treatment. Yet, in Plaintiff’s 14 case, there is no evidence that he was prioritized for treatment when his APRI score rose 15 above 2.0 in December 2017 and in September 2018, even though Plaintiff made multiple 16 requests for treatment during that time. There is also no evidence that Corizon developed 17 a treatment plan for Plaintiff or took any actions to prepare him for treatment when his 18 APRI score placed him in the top priority for treatment. On this record, a reasonable jury 19 could conclude that Corizon showed deliberate indifference to Plaintiff’s serious medical 20 needs. 21 There are also genuine issues of material fact whether Plaintiff experienced harm as 22 a result of this indifference, where he made multiple complaints of abdominal and body 23 pain and bloody stools. Even if there is no objective data of worsening health or liver 24 inflammation due to Hepatitis C, Plaintiff is competent to describe his own symptoms. See 25 Fed. R. Civ. P. 56(c)(4); S. Cal. Housing Rights Ctr. v. Los Feliz Towers Homeowners 26 Ass’n, 426 F. Supp. 2d 1061, 1070 (C.D. Cal. 2005) (declarant has personal knowledge of 27 her own symptoms); see also Thomas v. Garcia, 1:08-cv-00689-JLT (PC), 2013 WL 28 3773861, at *11 (E.D. Cal. July 17, 2013) (a party may testify as to what he felt when

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1 injured, how the injury affects him now and impacts his life, and any other information 2 within his own personal knowledge based upon his own perceptions). A reasonable jury 3 could infer from Plaintiff’s abdominal pain and other symptoms that occurred in 4 conjunction with his elevated APRI score that these symptoms resulted from the 5 progression of his Hepatitis while Corizon continued to deny treatment. On this record, 6 there are genuine issues of material fact whether Plaintiff suffered a constitutional 7 deprivation while under Corizon’s care. 8 In addition to showing a constitutional deprivation, Plaintiff must be able to show 9 that Corizon had a policy or custom, the policy or custom was deliberately indifferent to 10 his serious medical needs, and the deliberately indifferent policy or custom was the 11 “moving force” behind the constitutional deprivation. Mabe v. San Bernardino Cnty., 12 Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 13 Here, it is undisputed that Corizon had specific, established policies for monitoring, 14 assessing, and prioritizing treatment for prisoners with Hepatitis C. The relevant analysis 15 therefore hinges on whether these policies were deliberately indifferent to Plaintiff’s 16 serious medical needs and were the “moving force” behind Plaintiff’s asserted injuries. 17 Defendants have presented evidence Corizon’s Hepatitis treatment policies are 18 based on parameters published by the BOP, ratified by ADC, and supported by third-party 19 research. Defendants point to the Gilead Report’s recognition that Medicaid providers also 20 use parameters such as fibrosis levels to assess treatment eligibility. The undisputed 21 evidence also shows that Hepatitis C is a slowly progressing disease and that progression 22 from Hepatitis C infection to fibrosis and eventually cirrhosis may take years in some 23 patients, decades in others, or may not occur at all. Incarcerated individuals are also 24 thirteen times more likely to test positive for Hepatitis C, and according to the ADC 25 Guidelines, 23% of ADC prisoners are infected with Hepatitis C. Under these facts, 26 monitoring Hepatitis C-infected prisoners for indications that the disease is progressing or 27 has developed to a point that puts them at risk of serious liver damage before instituting 28 drug therapies is reasonable, and Defendants have met their initial burden of showing that

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1 Corizon’s Hepatitis C treatment policies within ADC were not deliberately indifferent. 2 Moreover, under these circumstances, Plaintiff’s desire for earlier or automatic Hepatitis 3 C treatment in lieu of regular lab tests and monitoring represents only a difference of 4 opinion as to the appropriate plan of care, which is insufficient to show that Corizon’s 5 Hepatitis C treatment policies were deliberately indifferent. 6 Because Plaintiff cannot show that Corizon implemented or observed policies or 7 regular practices that were deliberately indifferent or that any such policies or practices 8 were the moving force behind Plaintiff’s asserted injuries, Plaintiff’s Monell liability claim 9 against Corizon fails as a matter of law, and the Court will grant summary judgment to 10 Corizon and dismiss it from this action with prejudice. 11 Moreover, even if Plaintiff could show that Corizon’s Hepatitis C treatment policies 12 were deliberately indifferent, the record evidence does not support that these policies were 13 the “moving force” behind Plaintiff’s asserted injuries. At most, the evidence shows that 14 Plaintiff suffered various indeterminate symptoms, including abdominal pain and bloody 15 stools, during times when his APRI score was greater than 2.0, and during which Plaintiff 16 remained in Corizon’s care without Hepatitis C treatment. But any injuries Plaintiff may 17 have suffered from not being prioritized for Hepatitis C treatment when his APRI score 18 prioritized him for treatment can only be attributed to the apparent failure of medical staff 19 to follow the relevant policies. Such failures, whether due to inadvertence or deliberate 20 indifference, cannot support a Monell liability claim where the failure to prioritize Plaintiff 21 for more immediate treatment cannot be attributed to Corizon’s policies and there is no 22 evidence that Corizon had a widespread practice or custom of ignoring elevated fibrosis 23 levels. 24 Because Plaintiff cannot show that Corizon implemented or observed policies or 25 regular practices that were deliberately indifferent or that any such policies or practices 26 were the moving force behind Plaintiff’s asserted injuries, Plaintiff’s Monell liability 27 claims in Counts 1 and 2 against Corizon fail as a matter of law, and the Court will dismiss 28 those claims.

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1 d. Defendant Centurion 2 The available record does not support a deliberate indifference claim against 3 Centurion with respect to Plaintiff’s scrotal cyst. The facts show that after he came under 4 Centurion’s care, Plaintiff underwent another ultrasound in August 2019 and was assessed 5 multiple bilateral epididymal cysts, but no sign of torsion or testicular mass. 6 Centurion also sent Plaintiff to an off-site consultation with a urologist in January 7 2020, and the urologist recommended that Plaintiff undergo a spermatocelectomy in order 8 to remove sperm-filled cysts inside his scrotum. Centurion approved the surgical 9 procedure and Plaintiff underwent the spermatocelectomy in 2020 and attended a post- 10 operative urology consult in July 2020. These facts do not show that the Centurion staff’s 11 treatment of Plaintiff’s scrotal cyst amounted to deliberate indifference. 12 Moreover, the facts also do not support that Plaintiff suffered a constitutional 13 violation while under Centurion’s care regarding his Hepatitis C or that Centurion 14 maintained policies regarding Hepatitis C treatment that denied Plaintiff appropriate 15 medical care. 16 When Centurion assumed responsibility for prisoner healthcare within ADC, 17 Centurion implemented standard Hepatitis C treatment guidelines, which focused on 18 prisoners’ fibrosis scores and consultation with a Hepatitis C specialist. The evidence also 19 shows that during the time Plaintiff has been under Centurion’s care, his records indicate 20 that he did not meet the criteria for Hepatitis C treatment. Plaintiff’s December 2019 21 Fibrotest/Actitest showed he had scores of F1 and F2, indicating minimal fibrosis, and his 22 APRI score was 0.762. For these reasons, and the fact that he had no indication of cirrhosis 23 or co-infections—Plaintiff was placed in a lower priority level. These facts are sufficient 24 to show that Plaintiff has not suffered a constitutional deprivation with regard to his 25 Hepatitis C while under Centurion’s care. Instead, his Hepatitis C continued to be 26 monitored through regular chronic care visits and laboratory tests, and his APRI and 27 fibrosis levels remained low. 28 Plaintiff did not refute Defendants’ evidence or present any additional facts or

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1 evidence that would create a genuine issue of material fact that he suffered a constitutional 2 deprivation under Centurion’s care. Absent a showing of a constitutional deprivation, the 3 Court need not address the remaining Monell factors regarding the Hepatitis C treatment 4 he received while under Centurion’s care. 5 Based on the foregoing, Plaintiff’s Monell liability claims in Counts 1 and 2 against 6 Centurion fail as a matter of law, and the Court will dismiss those claims. 7 2. “Centralized Coordination” Policy Claim (Count 3) 8 In Count 3, Plaintiff asserts that Defendants Corizon and Centurion have 9 deliberately chosen a policy of not centrally coordinating medical services for prisoners. 10 (Doc. 116 at 20.) Plaintiff states that he has received care from multiple providers, but 11 under Corizon and Centurion’s policies, none of the providers “were responsible for 12 coordinating his overall care.” (Id. at 20.) Plaintiff asserts that he has “yet to arrive at a 13 unit where the health care provider has [his] medical file in front of [the provider]” to 14 review “pas[t] information from previous health care providers” and to “understand the 15 clear scope of the individual currently before [the provider].” (Id. at 21.) 16 As previously stated, to succeed on an Eighth Amendment policy claim against 17 Corizon and Centurion, Plaintiff must show that Defendants Shinn, Corizon, and Centurion 18 promulgated policies or customs that amounted to deliberate indifference and that were the 19 moving force behind a violation of Plaintiff’s constitutional rights. Monell, 436 U.S. at 20 690-94. 21 As an initial matter, although the Court ordered Defendant Shinn to answer Count 22 3 of the Second Amended Complaint (see Doc. 117 at 6), Plaintiff does not make any 23 allegations against Defendant Shinn regarding his “centralized coordination” policy claim 24 in Count 3. (See Doc. 116 at 20–23.) Accordingly, Defendant Shinn will be dismissed 25 from this portion of Count 3. See 8 U.S.C. § 1915(e)(2)(B). 26 Moreover, the available evidence does not show that Corizon and Centurion have 27 implemented a policy of failing to centrally coordinate prisoners’ medical records. Instead, 28 the evidence shows that each time Plaintiff was transferred between ADC facilities, his

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1 medical files and medications were transferred with him and were used by the medical staff 2 at the new facilities to continue Plaintiff’s medical treatment. (Doc. 153 ¶¶ 2–3, 5, 47; 3 Doc. 154-1 at 9, 18–23, 25–30, 34–38.) These facts do not suggest that Centurion and 4 Corizon had a policy or custom of not centralizing or coordinating medical records or 5 services. The record also does not show that Centurion and Corizon’s medical coordination 6 policies led to a violation of Plaintiff’s constitutional rights where the evidence indicates 7 that the medical staff at each ADC facility had access to Plaintiff’s medical files and were 8 able to access these files during Plaintiff’s various appointments. Plaintiff’s assertion that 9 he had “yet to arrive at a unit where the provider had access” to his medical files is clearly 10 contradicted by the evidence that shows his medical chart and continuity-of-care 11 information was available to, and used by, the medical staff and providers throughout his 12 many healthcare encounters at various ADC facilities. Even if Plaintiff encountered 13 providers who did not have his records “in front of” them, there are no facts in the record 14 to suggest that this occurred as a result of a Corizon or Centurion policy or custom. 15 Accordingly, Plaintiff’s claim in Count 3 regarding Corizon and Centurion’s failure 16 to centrally coordinate medical services will be dismissed. 17 3. Covid-19 Claim (Count 5) 18 Defendant Shinn did not file a dispositive motion regarding Plaintiff’s claim in 19 Count 5. The Court will give Defendant Shinn additional time to file a dispositive motion 20 limited to this claim. 21 V. Access-to-Courts Claim (Counts 3 and 4) 22 In Count 3, Plaintiff asserts that Defendants Corizon, Centurion, Igwe, Stewart, 23 Pontious, Perkins, Randall, and Raney have “impeded and delayed [his] ability to have 24 meaningful access to the courts.” (Doc. 116 at 23.) Plaintiff states that former ADC 25 Director Ryan “changed ADC policy to give Corizon and Centurion the exclusive authority 26 over the medical grievance process” and that they have removed the ability to appeal which 27 has “rendere[ed] the grievance process unavailable.” (Id.) 28

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1 In Count 4, Plaintiff alleges that the “ADC has no law libraries and the paralegal is 2 not allowed to assist inmates, except to p[er]form the function of reviewing documents.” 3 (Doc. 116-1 at 2.) Plaintiff claims that he ordered a book titled, “An Inexplicable 4 Deformity,” “which discusses ADC and Corizon and cases that may be helpful.” (Id.) 5 Plaintiff claims that on September 25, 2019, former Defendants Williams and Miller told 6 him he could not have the book pursuant to ADC policy because the book “discusses cases 7 that names [ADC] employee’s [sic].” (Id.) 8 A. Legal Standard 9 The right of meaningful access to the courts prohibits officials from actively 10 interfering with inmates’ attempts to prepare or file legal documents. Lewis v. Casey, 518 11 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or 12 complaints to federal court and not a right to discover such claims or even to ligate them 13 effectively once filed with a court. Id. at 354. The right “guarantees no particular 14 methodology but rather the conferral of a capability–the capability of bringing 15 contemplated challenges to sentences or conditions of confinement before the courts.” Id. 16 at 356. 17 As a matter of standing, for an access-to-courts claim, a plaintiff must show that he 18 suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show 19 actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the 20 defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous claim 21 that he wished to present. Id. at 352-53. 22 “[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” 23 Id. at 354. The right of access to the courts “does not guarantee inmates the wherewithal 24 to transform themselves into litigating engines capable of filing everything from 25 shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous claim 26 must be a direct or collateral attack on the inmate’s sentence or a challenge to the conditions 27 of his confinement. Id. “Impairment of any other litigating capacity is simply one of the 28

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1 incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. 2 (emphasis in original). 3 B. Discussion 4 On this record, there is no evidence that Plaintiff suffered an “actual injury” to 5 support an access-to-courts claim. The record shows that Plaintiff had access to the 6 prisoner administrative grievance process through filing inmate letters and grievances. 7 Moreover, Plaintiff has failed to specify a nonfrivolous claim that Defendants have 8 hindered him from pursuing. With respect to Plaintiff’s claim in Count 3, he vaguely 9 asserts that Defendants Corizon, Centurion, Igwe, Stewart, Pontious, Perkins, Randall, and 10 Raney “impeded and delayed” his meaningful access to the courts without providing 11 specific examples of how they did so. (See Doc. 116 at 23.) Likewise, in Count 4, Plaintiff 12 states in conclusory fashion that he ordered a book “that may have been helpful” but was 13 denied the book pursuant to ADC policy. (Doc. 116-1 at 2.) However, Plaintiff does not 14 specify how the book would have helped him, what case it would have helped him with, 15 or the nonfrivolous claim he was prevented or hindered in pursuing as a result of not having 16 access to the book. Plaintiff has not presented any evidence to defeat summary judgment, 17 and the vague assertions in his Second Amended Complaint are insufficient to establish 18 standing in an access-to-court claim. Additionally, the denial of access to a paralegal or 19 use of a law library is not actionable if there is no claim of prejudice to an existing or future 20 legal action. Lewis, 518 U.S. at 351-53. Therefore, Plaintiff’s statement regarding the lack 21 of a law library and the inadequacy of the prison paralegal is insufficient to create a triable 22 issue of fact on his access-to-court claim. 23 Accordingly, Plaintiff’s access-to-courts claims in Counts 3 and 4 will be dismissed. 24 IT IS ORDERED: 25 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 26 Motions for Summary Judgment (Doc. 152, 161, 164), Defendants’ Motion for Ruling 27 (Doc. 214), and Plaintiff’s Motions to Disqualify Counsel (Docs. 215, 217). 28 (2) Defendants’ Motion for Ruling (Doc. 214) is denied.

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1 (3) Plaintiff’s Motions to Disqualify Counsel (Docs. 215, 217) are denied. 2 (4) Defendants’ Motions for Summary Judgment (Doc. 152, 161, 164) are 3 granted. 4 (5) Counts 1, 2, 3, and 4 of the Second Amended Complaint are dismissed with 5 prejudice. 6 (6) Defendants Corizon, Centurion, Igwe, Stewart, Perkins, Robertson, 7 Headstream, Pontious, Randall, and Raney are dismissed with prejudice. 8 (7) The only claim remaining in this action is Plaintiff’s claim against Defendant 9 Shinn in Count 5 regarding Covid-19 protocols. 10 (8) Defendant Shinn may file a motion for summary judgment limited to 11 Plaintiff’s sole remaining claim in Count 5 within 30 days of this Order. 12 Dated this 16th day of September, 2021. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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