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.) Defendant Shinn moves for summary judgment. (Doc. 18 231.) Although Plaintiff was informed of his right and obligation to respond to Defendant’s 19 Motion for Summary Judgment, Plaintiff did not respond, and the time to do so has 20 expired.1 21 I. Background 22 On screening of Plaintiff’s Second Amended Complaint (Doc. 116) pursuant to 28 23 U.S.C. § 1915A(a), the Court determined that Plaintiff stated constitutional claims against 24 Defendants Arizona Department of Corrections (ADC) Director David Shinn (in his 25 official capacity only), Corizon Health, Centurion of Arizona, Nurse Practitioner Dorothy 26 Igwe, Contracting Monitoring Bureau Director David Robertson, Supervisor Vanessa 27
28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 233.) 1 Headstream, Dr. Rodney Stewart, Medical Director Thomas Lutz, Facility Health 2 Administrators Adam Perkins and Trina Randall, Nursing Supervisors Elizabeth Pontious 3 and Phyllis Raney, and ADC Office of Publication Review employees Tray Williams and 4 Diane Miller and ordered them to respond to the respective claims against them. (Docs. 5 70, 117.) The Court subsequently dismissed Defendants Williams and Miller pursuant to 6 Federal Rule of Civil Procedure 12(c). (Doc. 162.) The Court also dismissed Defendant 7 Lutz for failure to timely serve. (Doc. 179.) 8 On September 16, 2021, the Court granted summary judgment to Defendants 9 Corizon, Centurion, Igwe, Stewart, Perkins, Robertson, Headstream, Pontious, Randall, 10 and Raney and dismissed them from the action with prejudice. (Doc. 225.) 11 Plaintiff’s sole remaining claim is Count 5 in which he alleges that Defendant Shinn 12 violated his Eighth Amendment rights by failing to implement proper cleaning and 13 screening policies to protect him and other prisoners from Covid-19. Defendant Shinn now 14 moves for summary judgment as to Plaintiff’s claim regarding ADC’s Covid-19 protocols. 15 (Doc. 231.) 16 II. Summary Judgment Standard 17 A court must grant summary judgment “if the movant shows that there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 19 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 20 movant bears the initial responsibility of presenting the basis for its motion and identifying 21 those portions of the record, together with affidavits, if any, that it believes demonstrate 22 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 23 If the movant fails to carry its initial burden of production, the nonmovant need not 24 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 25 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 26 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 27 contention is material, i.e., a fact that might affect the outcome of the suit under the 28 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 1 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 3 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 4 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 5 it must “come forward with specific facts showing that there is a genuine issue for trial.” 6 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 7 citation omitted); see Fed. R. Civ. P. 56(c)(1). 8 At summary judgment, the judge’s function is not to weigh the evidence and 9 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 10 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 11 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 12 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 13 III. Exhaustion 14 Defendant Shinn first argues that Plaintiff did not exhaust the available 15 administrative remedy with respect to his claim regarding ADC’s Covid-19 protocols. 16 A. Exhaustion Standard 17 Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 18 administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 19 Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 20 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 21 accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 22 Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 23 (2002), regardless of the type of relief offered through the administrative process, Booth v. 24 Churner, 532 U.S. 731, 741 (2001). 25 The defendant bears the initial burden to show that there was an available 26 administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 27 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 28 demonstrate that applicable relief remained available in the grievance process). Once that 1 showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 2 fact, exhausted administrative remedies or “come forward with evidence showing that there 3 is something in his particular case that made the existing and generally available 4 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 5 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 6 if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 7 failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 8 If summary judgment is denied, disputed factual questions relevant to exhaustion 9 should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 10 exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted 11 administrative remedies, that administrative remedies were not available, or that the failure 12 to exhaust administrative remedies should be excused, the case proceeds to the merits. Id. 13 at 1171. 14 B. Discussion 15 In the “Administrative Remedies” section of his Second Amended Complaint, 16 Plaintiff did not check any of the boxes indicating whether he had exhausted his claim 17 against Defendant Shinn. (Doc. 116-1 at 4.) Instead, Plaintiff asserted that there were 18 “[n]o available remedies within the meaning of [the] PLRA, [Corrections Officer] CO IV 19 Bohuszewics destroy[]s all inmate grievance documents as a matter of ADOC practice and 20 Director refuses to address it.” (Id.) 21 Defendant Shinn argues that the administrative grievance process was available to 22 Plaintiff as evidenced by his exhaustion of his claims in Counts 1–4 of the Second 23 Amended Complaint. (Doc. 231 at 8.) Defendant did not provide a copy of the ADC 24 grievance procedure as an exhibit and instead included a link to the grievance procedure. 25 (Doc. 231 at n.1.) However, the destination for the link Defendant provided is no longer 26 available, and the current version of the ADC grievance procedure was not in effect at the 27 time Plaintiff’s claim against Defendant Shinn arose.2 Defendant has not presented any
28 2 See ADC Department Order 802, Inmate Grievance Procedure (effective March 2, 1 other evidence regarding the ADC administrative remedy process or Plaintiff’s ADC 2 grievance history. Moreover, Plaintiff’s ability to exhaust some of his claims does not 3 mean that CO IV Bohuszewics did not hinder or thwart Plaintiff’s ability to exhaust his 4 claim against Defendant Shinn. See e.g., McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 5 2015) (threat of retaliation can render grievance process effectively unavailable and excuse 6 a prisoner’s failure to exhaust); Nunez v. Duncan, 591 F.3d 1217, 1224– 26 (9th Cir. 2010) 7 (warden’s mistake rendered administrative remedies “ effectively unavailable”); Marella 8 v. Terhune, 568 F.3d 1024, 1027– 28 (9th Cir. 2009) (per curiam) (remedies unavailable if 9 prisoner does not have access to the necessary grievance forms). 10 As such, Defendant has not met his initial burden at summary judgment of showing 11 there was an administrative remedy available to Plaintiff and that Plaintiff did not exhaust 12 the administrative remedy process. See Albino, 747 F.3d at 1169, 1172 (defendant bears 13 the initial burden of showing that there was an available administrative remedy). 14 Accordingly, Defendant’s Motion for Summary Judgment will be denied as to the issue of 15 exhaustion, and the Court will move on to the merits of Plaintiff’s claim. 16 IV. Medical Claim 17 In his remaining claim, Plaintiff asserts that his asthma and Hepatitis C put him at 18 increased risk of contracting the Covid-19 virus, and Defendant Shinn has failed in his 19 duties as ADC Director to implement proper cleaning and screening policies to protect 20 Plaintiff and other prisoners from the disease. 21 A. Legal Standard 22 To support a § 1983 medical claim, a plaintiff must show (1) a “serious medical 23 need” by demonstrating that failure to treat the condition could result in further significant 24 injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response 25 was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 26 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 27 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both
28 2022), https://corrections.az.gov/sites/default/files/policies/800/0802.pdf (last visited Mar. 17, 2022). 1 know of and disregard an excessive risk to inmate health; “the official must both be aware 2 of facts from which the inference could be drawn that a substantial risk of serious harm 3 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 4 Deliberate indifference in the medical context may be shown by a purposeful act or failure 5 to respond to a prisoner’s pain or possible medical need and harm caused by the 6 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 7 prison official intentionally denies, delays, or interferes with medical treatment or by the 8 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 9 97, 104-05 (1976); Jett, 439 F.3d at 1096. 10 Deliberate indifference is a higher standard than negligence or lack of ordinary due 11 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 12 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corrs., 220 F. 13 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 14 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 15 do not support a claim under § 1983). “A difference of opinion does not amount to 16 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 17 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 18 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 19 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 20 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 21 Estelle, 429 U.S. at 105. 22 Moreover, to prove a claim under § 1983 against Defendant Shinn in his official 23 capacity, Plaintiff must satisfy the test articulated in Monell v. Department of Social 24 Services of City of New York, 436 U.S. 658, 690-94 (1978), by presenting facts to support 25 that his constitutional rights were violated as a result of a policy, decision, or custom 26 promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 27 1128, 1138-39 (9th Cir. 2012). In this case, Plaintiff must show: (1) a constitutional 28 violation; (2) that Defendant Shinn implemented a policy or custom that amounted to 1 deliberate indifference; and (3) that the policies or customs were the moving force behind 2 the violation of Plaintiff’s constitutional rights in the sense that Defendant Shinn could 3 have prevented the violation with an appropriate policy. See Gibson v. Cnty. of Washoe, 4 290 F.3d 1175, 1193-94 (9th Cir. 2002). 5 B. Relevant Facts3 6 On March 13, 2020, in response to the expectation of additional cases of the Covid- 7 19 virus within the civilian population of Arizona, ADC suspended visitation at all Arizona 8 prison complexes for 30 days subject to re-evaluation at that time in order to mitigate the 9 potential introduction and spread of the virus within the prison system and its impact on 10 staff and prisoners, as well as to ensure the continued effective operation of the state 11 correctional system, and to be proactive. (Doc. 232 (Def.’s Statement of Facts) ¶ 1.) As 12 of that date, ADC did not have any confirmed Covid-19 cases. (Id.) 13 During the visitation suspension period, ADC allowed prisoners two 15-minute 14 phone calls per week free of charge. (Id. ¶ 2.) ADC also continued to inform both staff 15 and prisoners about how they could reduce the risk of contracting the virus by washing 16 hands, sanitizing surfaces, covering coughs and sneezes and encouraging employees to stay 17 home if they were sick. (Id.) 18 On March 18, 2020, consistent with CDC guidelines, ADC waived the $4.00 co- 19 pay for health care services for prisoners experiencing flu or cold-like symptoms and 20 provided free hand soap to all prisoners upon request as recommended by the Arizona 21 Department of Health Services (ADHS). (Id. ¶ 4.) ADC also stopped all routine internal 22 movement of prisoners across all prison complexes, suspended all classes provided by local 23 community colleges, initiated a weekly deep cleaning of all facilities, and increased the 24 25
26 3 Because Plaintiff failed to file a response or controverting statement of facts, the Court will consider Defendant’s facts undisputed unless they are clearly controverted by 27 Plaintiff’s first-hand allegations in the verified Second Amended Complaint or other evidence in the record. Where the nonmovant is a pro se litigant, the Court must consider 28 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). 1 availability of soap, paper towels, hygiene items and cleaning agents for both prisoners and 2 staff. (Id.) 3 ADC also required all employees entering a prison complex to undergo an 4 Infectious Disease Symptoms Check including a series of health questions. (Id. ¶ 5.) In 5 conjunction with ADC’s prisoner healthcare vendor, Centurion, ADC staff were checked 6 for symptoms of the virus continuously as they entered each facility. (Id.) Prisoner work 7 crews were screened as they departed and re-entered all prison complex facilities. (Id.) 8 As of March 20, 2020, ADC had no known cases of the virus and continued to 9 follow the mandatory industry standards set forth by the American Correctional 10 Association and the guidelines of the National Commission of Correctional Health Care. 11 (Id. ¶ 6.) Centurion continued to work to ensure it followed the established guidance of 12 the CDC and public health officials, including ADHS, as well as providing training to staff, 13 updated information, and adopting other additional precautions as necessary. (Id.) 14 On March 23, 2020, ADC had no confirmed cases of the virus. (Id. ¶ 7.) Six 15 prisoners were tested for the virus with the results still pending while they were being 16 monitored and cared for in a separate area to reduce the risk of transmission. (Id.) By that 17 date, ADC had significantly reduced the number and frequency of prisoner work crews and 18 required temperature checks upon return to the prison complexes. (Id.) 19 By March 25, ADC pulled back all off-site work crews until such time as the 20 national and local public health experts considered the virus no longer a threat. (Id. ¶ 8.) 21 In March 2020, ADC reached a collective agreement with sheriffs in all 15 Arizona 22 counties to temporarily suspend admissions of convicted persons from county jails for 21 23 days, followed by subsequent 21-day cycles of prudent admissions. (Id. ¶ 9.) As of March 24 30, 2020, there were no known virus cases at any of ADC’s prison complexes. (Id.) 25 By April 1, 2020, there were no known cases of the virus in ADC; 34 prisoners had 26 been tested for the virus, 29 were negative, and 5 test results were pending. (Id. ¶ 10.) In 27 April 2020, there were limited personal protective equipment (“PPE”) supplies across the 28 country for law enforcement, first responders, and healthcare providers. (Id. ¶ 11.) At this 1 point in the pandemic, ADC continued to focus on presentation of symptoms which had 2 been effective in managing the situation to this point. (Id.) According to CDC 3 recommendations at the time, masks should be worn by patients with active virus 4 symptoms during transportation to monitoring sites and by those providers at healthcare 5 facilities directly treating those patients. (Id.) As the situation dictated, PPE was available 6 for all employees to appropriately respond. (Id.) This procedure and protocol matched 7 ADC’s direction for meeting all infectious disease threats encountered in the correctional 8 environment. (Id.) The best advice by the CDC and ADHS was to wash hands frequently 9 and wipe down common areas with properly mixed disinfectant spray. (Id.) As CDC 10 guidelines changed, ADC adapted its procedures to meet the new directives. (Id.) During 11 this time period, ADC was actively engaged in finalizing measures to strategically control 12 admissions to the entire state correctional system. (Id.) 13 By April 3, 2020, to promptly implement the most recent CDC guidance, ADC 14 recommended employees wear a non-medical (non-PPE) cloth face covering to reduce the 15 risk of transmission of the virus while conducting essential business. (Id. ¶ 12.) This 16 recommendation included employees reporting for duty across ADC. (Id.) Additionally, 17 ADC continued to follow the recommendations by the CDC regarding PPE for 18 incarcerated/detained individuals and staff in a correctional facility. (Id.) ADC continued 19 to provide medical masks for healthcare workers and employees in direct contact with 20 individuals who exhibited active flu-like or Covid-19 symptoms. (Id.) ADC also 21 continued to separate any prisoner who was exhibiting flu-like symptoms from the general 22 population for monitoring and appropriate follow-up care. (Id.) 23 By April 7, 2020, as part of ADC’s response to the evolving CDC guidelines 24 regarding face coverings, ADC began distributing fabric face coverings to all employees. 25 (Id. ¶ 13.) The CDC recommended that essential staff wear non-medical (non-PPE) cloth 26 face coverings to reduce the risk of transmission of the virus. (Id.) 27 On April 7, 2020, ADC was notified that two prisoners had tested positive for the 28 virus. (Id. ¶ 14.) The first prisoner had been housed at a community hospital since March 1 27, 2020 due to other non-virus related symptoms. (Id.) The prisoner was found positive 2 for Covid-19 after having been previously tested twice with negative results at the same 3 community hospital. (Id.) ADC was also notified of a prisoner who tested positive for the 4 virus at the Marana Community Correctional Treatment Facility operated by Management 5 and Training Corporation. (Id.) As of that date, 60 prisoners had been tested, 48 had tested 6 negative, 10 were pending, and 2 tested positive. (Id.) Consistent with CDC guidance and 7 ADC Infectious Disease Protocols, ADC continued to separate any prisoners who exhibited 8 flu-like symptoms from the general population, for monitoring and appropriate follow-up 9 care. (Id.) 10 On April 9, 2020, ADC was notified that a prisoner had tested positive for the virus 11 at ASPC-Florence. (Id. ¶ 15.) As of that date, 68 prisoners had been tested, 58 had tested 12 negative, 3 were confirmed positive, and 7 were pending. (Id.) 13 On May 28, 2020, ADC announced the start of enhanced Covid-19 testing at ASPC- 14 Yuma for all correctional officers and prison employees. (Id. ¶ 16.) 15 On June 12, 2020, ADC commenced enhanced virus testing at ASPC-Florence as 16 part of a statewide plan to provide testing to all correctional officers and prison employees. 17 (Id. ¶ 17.) All prison complex staff members were required to wear cloth face coverings 18 beginning June 15, 2020. (Id.) 19 By July 2, 2020, ADC had distributed fabric face coverings to all prisoners for their 20 use. (Id. ¶ 18.) This included ADC’s third-party operated prison complexes and prisoners 21 arriving at ADC’s intake facility in Phoenix. (Id.) 22 On August 4, 2020, 517 prisoners housed at the ASPC-Tucson, Whetstone Unit 23 tested positive for the virus. (Id. ¶ 19.) Prisoners who tested positive were housed as a 24 cohort together in separate areas and received appropriate medical care. (Id.) They were 25 not allowed back into the general population until they were medically cleared. (Id.) In 26 addition to measures that were already in place, all prisoners at the Whetstone Unit received 27 meals, all required medications, and medical services in their housing units. (Id.) All ADC 28 1 prison staff were required to wear cloth face coverings since June 15, 2020, and suspended 2 visitation was continued through November 2020. (Id.) 3 On December 8, 2020, testing was conducted at the ASPC-Florence, Globe Unit 4 and the ASPC-Yuma, La Paz Unit, with 655 of those tests at La Paz coming back positive. 5 (Id. ¶ 20.) The testing of the populations at these units allowed ADC to swiftly cohort, 6 compartmentalize, and provide medical care. (Id.) The La Paz Unit housed a total of 1,066 7 prisoners. (Id.) Each prison facility had an onsite survey completed by the ADHS Infection 8 Control Assessment and Response team which continued to be available to offer assistance. 9 (Id.) Prisoners who tested positive were housed separately from the rest of the unit. (Id.) 10 Comprehensive prisoner services, including meals, required medications, and 11 medical services were brought directly to the infected prisoners’ housing location. (Id.) 12 They were not allowed back into the general population until they were medically cleared. 13 (Id.) Per CDC guidance for correctional facilities, all ADC prisoners were provided face 14 coverings. (Id.) Prisoners were required to wear their face coverings upon leaving their 15 immediate living area. (Id.) All prison complex staff was also required to wear cloth face 16 coverings. (Id.) 17 By December 2020, ADC was preparing for the approval and distribution of a 18 Covid-19 vaccine. (Id. ¶ 21.) The health care professionals who provide medical services 19 to ADC’s prisoner population were in the process of being certified to administer Covid- 20 19 vaccines as soon as supplies were available. (Id.) All employees entering any ADC 21 prison complex continued to undergo required temperature and symptom checks. (Id.) All 22 incoming admissions were tested at intake facilities such as ASPC-Phoenix, where ADC 23 receives new prisoners admissions from the county jails and where the new prisoners are 24 cohorted and monitored for 14 days prior to intra-system movement. (Id.) 25 ADC, in collaboration with ADHS, conducted onsite PCR testing of prisoners at all 26 of its statewide facilities. (Id. ¶ 23.) ADC continued to isolate and test prisoners with flu- 27 like symptoms and continued to re-test as needed. (Id.) If necessary, prisoners were 28 transported to the hospital if they required higher levels of care. (Id.) 1 Between March and late December 2020, ADC received more than 6,850 intakes 2 from Arizona’s 15 counties. (Id. ¶ 24.) To accommodate the influx of new admissions and 3 to maintain the health and safety of the existing prisoner population, ADC opened 4 additional intake centers at the ASPC-Lewis, Morey Unit and the ASPC-Tucson, Rincon 5 Unit. (Id.) These additional intake centers allowed ADC to isolate incoming prisoners who 6 tested positive for the virus so that they could receive appropriate care and medical 7 clearance before entering the general population. (Id.) 8 During this same time period, more than 85,000 tests were conducted at ADC prison 9 complexes and contract prison facilities. (Id. ¶ 25.) The second round of prisoner testing 10 began in January 2021 in collaboration with ADHS, and rapid testing for staff was 11 deployed on an as-needed basis. (Id.) ADHS provided ADC with 4,000 BinaxNOW™ 12 COVID-19 Card Rapid Antigen tests produced by Abbott. (Id.) 13 In August 2020, ADC became one of only a handful of state correctional agencies 14 in the nation to mass test its entire prisoner population. (Id.) Mass testing allowed ADC 15 to identify asymptomatic spread and then isolate and group prisoners as needed to mitigate 16 Covid-19 spread in its facilities. (Id.) Each test was then recorded in the prisoner’s 17 medical record. (Id.) 18 In January 2021, Covid-19 vaccinations began at ASPC-Perryville for correctional 19 officers who were part of the 1B protective services personnel group. (Id. ¶ 26.) The 20 officers began receiving the Moderna Covid-19 vaccination on a voluntary basis. (Id.) The 21 next week, vaccinations were provided at Perryville for Centurion healthcare workers who 22 were part of the 1A frontline healthcare group. (Id.) As ADC acquired additional vaccines, 23 distribution expanded to the same groups at other complexes. (Id.) 24 Also in January 2021, ADC began offering a second round of PCR testing to its 25 prisoner population. (Id.) This testing was conducted in collaboration with ADHS at all 26 10 ADC complexes as well as at ADC’s private prison facilities. (Id.) As ADC acquired 27 additional vaccines, distribution expanded to the same groups of employees at other 28 complexes. (Id.) 1 In March 2021, ADC began offering Covid-19 vaccines to prisoners at its 10 state 2 complexes as well as private prison facilities. (Id. ¶ 27.) As of March 2021, ADC had 3 received 3,940 doses from ADHS and had administered 3,337 total vaccines. (Id.) 4 Additionally, the private prisons had administered 1,034 vaccines. (Id.) At that time, ADC 5 had a prisoner population of 36,768. (Id.) ADC offered the vaccines as they were allocated 6 to the Department. (Id.) 7 By early April 2021, ADC had received 6,540 doses from ADHS and had 8 administered 5,499 vaccines. (Id. ¶ 28.) Additionally, the private prisons had administered 9 1,361 vaccines. (Id.) By April 9, 2021, ADC had received 11,690 doses from ADHS and 10 had administered 10,091 vaccines. (Id.) The private prisons had administered 1,964 11 vaccines. (Id.) 12 By April 16, 2021, ADC had received 19,980 doses from ADHS and had 13 administered 13,903 vaccines. (Id.) The private prisons had administered 4,233 vaccines. 14 (Id.) 15 By April 23, 2021, ADC had received 27,980 doses from ADHS and administered 16 21,193 vaccines. (Id. ¶ 29.) The private prisons had administered 4,511 vaccines. (Id.) 17 By April 30, 2021, ADC had received 31,180 doses from ADHS and administered 18 22,575 vaccines. (Id.) The private prisons had administered 5,079 vaccines. (Id.) 19 By May 7, 2021, ADC had received 31,580 doses from ADHS and had administered 20 22,795 vaccines. (Id.) The private prisons had administered 5,179 vaccines. (Id.) 21 By May 14, 2021, ADC had received 43,580 doses from ADHS and had 22 administered 36,494 vaccines. (Id.) The private prisons had administered 8,095 vaccines. 23 (Id.) 24 By May 21, 2021, ADC had received 43,580 doses from ADHS and had 25 administered a total of 43,587 first and second dose vaccines at its ten state prison 26 complexes. (Id.) The private prisons had administered a total of 9,792 vaccines. (Id.) 27 By May 28, 2021, ADC had vaccinated more than 25,000 prisoners, or 70.4% of the 28 prisoner population. (Id. ¶ 31.) ADC had received 44,880 doses from ADHS and had 1 administered 44,215 first and second vaccines. (Id.) The private prisons had administered 2 10,273 vaccines. (Id.) 3 By June 4, 2021, nearly 26,000 prisoners, or 71.3% of the prisoner population, was 4 fully vaccinated. (Id.) ADC had received 44,880 doses from ADHS and had administered 5 44,452 first and second vaccines. (Id.) The private prisons had administered 10,357 6 vaccines. (Id.) 7 By June 11, 2021, more than 26,000 prisoners, or 72.52% of the prisoner population 8 was fully vaccinated. (Id.) 9 Plaintiff was fully vaccinated against Covid-19 on June 28, 2021. (Id. ¶ 37.) 10 Effective August 24, 2021, an entire comprehensive section dedicated to Covid-19 11 was added to the Medical Services Technical Manual at Chapter 2, Sec. 5.1 as part of ADC 12 Department Order 1102, Communicable Disease and Infection Control. (Id. ¶ 35.) The 13 Covid-19 section at ¶ 2.0 provides a comprehensive overview of symptom presentations 14 and defines the procedures the Contract Health Providers (“CHP”) shall have in place to 15 comprehensively address the variety of topics related to the management of Covid-19. (Id. 16 ¶ 36.) The Covid-19 section at ¶ 3.0 provides procedures for clinical testing of both 17 symptomatic and asymptomatic patients, strategic surveillance testing, and testing after 18 vaccination. (Id.) The Covid-19 section at ¶ 4.0 provides procedures for vaccination 19 protocols for both ADC staff and prisoners and procedures related to adverse events 20 resulting from vaccination. (Id.) 21 Plaintiff asserts the following facts in his Second Amended Complaint: 22 As I have asthma and have been hospitalized in the past over it, compounded with my Hepatitis C . . . I am placed at an 23 extremely elevated risk of death from Covid-19 as it attacks the 24 [respiratory] system as shown in the question[n]aire p[er]formed by medical in their screening of me for Covid-19. 25 Having said underlying health issues decreases my chances of 26 survivability should I be infected. The Director of ADOC, Shinn, has failed in his duties to protect myself and others by 27 their lack of proper cleaning, screening of staff and it is not to 28 be left to happen stance [sic]. This recklessness placed not only myself but the population in total at unnecessary risk of infection. The Govern[o]r has determined prisoners are not a 1 vulnerable group. 2 (Doc. 116-1 at 4.) 3 C. Discussion 4 Here, the record does not support a claim against Defendant Shinn. First, the facts 5 do not show that Plaintiff suffered a constitutional violation. The available evidence shows 6 that with the onset of the Covid-19 pandemic, ADC implemented masking, testing, and 7 isolation protocols in line with guidance from the CDC and that ADC updated its masking, 8 testing, and isolation policies to remain in compliance with the CDC’s evolving guidelines. 9 Moreover, the record shows that when Covid-19 vaccines became available, ADC 10 promptly began vaccinating staff and prisoners as the vaccines were allocated to the 11 department. Plaintiff was fully vaccinated as of June 28, 2021. These facts do not support 12 a finding of deliberate indifference to Plaintiff’s serious medical needs, and Plaintiff does 13 not present any specific evidence that would indicate he received constitutionally deficient 14 medical care. Plaintiff’s vague and unsupported statements in the Second Amended 15 Complaint are insufficient to create a genuine issue of material fact that his Eighth 16 Amendment rights were violated. 17 Additionally, Plaintiff has not presented any facts to refute Defendant’s evidence 18 regarding ADC’s Covid-19 policies or to show that ADC’s Covid-19 policies were 19 deliberately indifferent or medically unacceptable. Because the facts do not show that 20 Plaintiff suffered a constitutional violation or that Defendant Shinn implemented a 21 deliberately indifferent policy, summary judgment will be granted to Defendant Shinn. 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 1 | IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to 2 | Defendant’s Motion for Summary Judgment (Doc. 231), and the Motion is granted. The 3 | Clerk of Court must terminate the action and enter judgment accordingly. 4 | Dated this 18th day of March, 2022.
Michal T. df burde Michael T. Liburdi 8 | United States District Judge
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