Ochoa 122052 v. Ryan

Opinion

1 SKC 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juan Daniel Ochoa, No. CV 17-3270-PHX-DGC (CDB) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants.

14 15 Plaintiff Juan Daniel Ochoa, who is currently confined in the Arizona State Prison 16 Complex (ASPC)-Eyman in Florence, Arizona, brought this civil rights action pursuant to 17 42 U.S.C. § 1983. Defendants Arizona Department of Corrections (ADC) Director Charles 18 L. Ryan, Subodh Shroff, M.D., Corizon Health, Inc. (“Corizon”), and Corizon’s HCV 19 Treatment Review Committee move for summary judgment. (Doc. 47.) Plaintiff was 20 informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 21 952, 962 (9th Cir. 1998) (en banc) (Doc. 51), and he opposes the Motion. (Doc. 57.) The 22 Court will grant the Motion for Summary Judgment. 23 I. Background 24 On screening of Plaintiff’s two-count Complaint under 28 U.S.C. § 1915A(a), the 25 Court determined that Plaintiff stated Eighth Amendment, Americans with Disabilities Act 26 (ADA), and Rehabilitation Act (RA) claims based on Defendants’ alleged failure to treat 27 his Hepatitis C (“Hep C” or “HCV”) and their establishment of an “HCV protocol,” which 28 1 Plaintiff alleges is designed to delay HCV treatment for cost-savings and administrative 2 convenience. (Doc. 6.) The Court directed Defendants to answer these claims. (Id.) 3 II. 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 . . . . 1 III. Facts 2 A. HCV Treatment within ADC 3 According to a Gilead Sciences report, incarcerated individuals are thirteen times 4 more likely to have detectable levels of HCV in their blood than those in the general 5 population. (Doc. 48 (Defs. Statement of Facts) ¶ 14, Ex. N.)1 These elevated rates present 6 challenges to prisons due to budgetary constraints and the high cost of HCV treatment. 7 (Id.) As a result, the Federal Bureau of Prisons (BOP) developed a Clinical Guidance 8 Manual for the Evaluation and Management of Chronic Hepatitis C (HCV) Infection 9 (hereinafter, the “BOP Manual”), which contains a comprehensive framework for 10 prioritizing prisoners for HCV treatment so that those with the greatest need are treated 11 first. (Id. ¶ 15, Ex. O.) ADC and Corizon have adopted the BOP Manual. (Id.) 12 According to the BOP Manual, progression from chronic HCV infection to fibrosis 13 and eventually cirrhosis may take years in some patients, decades in others, or may not 14 occur at all. (Id. ¶ 16.) Most complications from HCV infection occur in people who 15 develop cirrhosis. Therefore, assessing for cirrhosis is important when prioritizing patients 16 for treatment. (Id. ¶ 18.) The BOP’s preferred method for non-invasive assessment of 17 fibrosis and cirrhosis is the APRI score, which is calculated using the results of two blood 18 tests that measure the aspartate aminotransferase (ATP) and the platelet count. (Id. 19 ¶¶ 19−20.) 20 The BOP Manual establishes priority levels for HCV treatment, according to which 21 prisoners with “advanced hepatic fibrosis,” liver transplant recipients, those with certain 22 comorbid conditions, immunosuppressed patients, or those who already started treatment 23 prior to incarceration are considered the highest priority (Priority Level One) for treatment. 24

25 1 Based on information publicly available online, Gilead Sciences is a 26 biopharmaceutical company that produces treatments for HIV, liver diseases, cancer, and 27 inflammatory and respiratory diseases. See “About Gilead,” Year in Review 2018, p. 100, available at https://www.gilead.com/-/media/files/pdfs/yir-2018-pdfs/year-in-review- 28 2018_desktop.pdf?d=0502&la=en&hash=7375E850483FE0FB3BDA351D70AAA4FF (last visited July 19, 2019). 1 (Id. ¶¶ 22, 24, Ex. O at 8.) Advanced hepatic fibrosis is indicated by an APRI score greater 2 than 2.0, “Metavir or Batts/Ludwig” stage 3 or 4 on a liver biopsy, or known or suspected 3 cirrhosis. (Id.) The intermediate priority for treatment (Priority Level Two) includes 4 patients who have an APRI score greater than 1.0 or “stage 2 fibrosis” on a liver biopsy, 5 and those with certain comorbid conditions including liver disease, diabetes, and chronic 6 kidney disease. (Id. ¶ 25.) The lowest priority for treatment (Priority Level Three) includes 7 patients with an APRI score less than 1.0 or those who have stage 0−1 fibrosis on a liver 8 biopsy. (Id. ¶ 26.) Because APRI scores are used to predict cirrhosis, liver biopsies are no 9 longer required. (Id. ¶ 27, Ex. O at 6.) 10 In addition to the BOP Manual, Corizon follows the ADC “Clinical Practice 11 Guidelines for the Prevention and Treatment for Viral Hepatitis C (2017)” (“the 12 Guidelines”). (Id. ¶ 30.) The Guidelines estimate that 23 per cent of ADC prisoners are 13 infected with HCV. (Id.) The Guidelines incorporate the high, intermediate, and low 14 Priority Levels from the BOP Manual. (Id. ¶ 31.) The Guidelines also provide that 15 prisoners with APRI scores of 0.7 or higher or with advanced fibrosis will be prioritized 16 for HCV treatment. (Id. ¶ 32, Ex. P at 8.) 17 Corizon’s Hepatitis C Committee bases its decision on whether to treat prisoners 18 with HCV on additional factors, including the absence of risky behavior as evidenced by 19 no disciplinary tickets for drug possession or tattoos for one year. (Id. ¶ 34.)2 20 21 2 In his Separate Statement of Facts, Plaintiff provides several paragraphs containing lengthy summaries of information about HCV and the history of HCV treatment, including 22 the development of direct-acting antiviral (DAA) medications, which he cites as coming 23 from “www.hcvguidelines.org.” (Doc. 62 ¶¶ 41−54.) Plaintiff has not, however, set forth specific, relevant facts to this lawsuit in separate paragraphs as required under Local Rule 24 56.1(b). Nor has he attached a copy of the cited material or cited to specific page numbers 25 in support of specific asserted facts. The Court was able to locate portions of Plaintiff’s intended evidence at https://www. hcvguidelines.org/unique-populations/correctional (last 26 visited June 19, 2019); however, because the Court was not able readily to identify specific 27 controverting or additional facts in Plaintiff’s lengthy summaries or find support for specific factual propositions, it has not included this material. General summaries and 28 citations to lengthy documents, without specific page numbers, are insufficient to create a question of fact at summary judgment. See Southern Cal. Gas Co. v. City of Santa Ana, 1 B. Plaintiff’s HCV Care 2 On March 11, 2015, Plaintiff was seen by Dr. Bertram for a chronic care 3 appointment. (Doc. 67 (Defs. Supplemental Statement of Facts) ¶ 1.) Dr. Bertram noted 4 that Plaintiff had been diagnosed with HCV in 2004 or 2005. (Doc. 67 at 10.) He also 5 noted that he was unaware of how Plaintiff had acquired HCV, but that Plaintiff had tattoos. 6 (Id.) Plaintiff reported no active symptoms, and Dr. Bertram noted that Plaintiff’s March 7 2014 labs were normal, and ordered new labs. (Id.) Dr. Bertram also noted no indications 8 of liver disease and planned to monitor Plaintiff’s liver function and follow up in six 9 months. (Id. at 13−15.) 10 On May 13, 2015, Plaintiff had labs taken, and his APRI score was 0.40. (Id. ¶ 2; 11 Doc. 67 at 20; Doc. 68, Ex. Y (Hutchinson Decl.) ¶ 5(e).) On May 3, 2016, Plaintiff had 12 labs taken, and his APRI score was 0.40. (Id. ¶ 2; Doc. 67 at 27; Doc. 68, Hutchinson Decl. 13 ¶ 5(f).) On May 31, 2016, Plaintiff saw Defendant Dr. Shroff for a chronic care 14 appointment for his HCV, and presented no symptoms. (Doc. 67 at 32.) Dr. Shroff noted 15 that Plaintiff’s HCV was stable, ordered a diagnostic panel prior to the next chronic care 16 visit, and made a plan to monitor liver functions and follow up in 6 months. (Id. at 36−38.) 17 According to Plaintiff, Dr. Shroff told Plaintiff that starting DAA treatment for his HCV 18 would do more harm than good. (Doc. 62 ¶ 57; Doc. 62, Ex. A (Pl. Decl.) ¶ 13.) 19 On November 8, 2016, Plaintiff filed a grievance alleging he had not been receiving 20 proper laboratory tests and treatment for his HCV for two decades. (Doc. 67 ¶ 6; Doc 67 21 at 47.) He requested “preventive health care,” alleging that that there was no medical 22 reason to deny him this care. (Doc. 67 at 47.) On November 15, 2016, Plaintiff had labs 23 taken, and his APRI score was 0.65. (Doc. 67 ¶ 5; Doc. 67 at 40−41; Doc. 68, Ex. Y 24 (Hutchinson Decl.) ¶ 5(g).) 25 336 F.3d 885, 889 (9th Cir. 2003) (in summary judgment briefing “[g]eneral references 26 without page or line numbers are not sufficiently specific”); see also Orr v. Bank of 27 America, 285 F.3d 764, 775 (9th Cir. 2002) (internal quotation omitted) (“Judges need not paw over the files without assistance from the parties.”). 28 1 On December 13, 2016, Assistant Facility Health Administrator (AFHA) Maureen 2 Johnson responded to Plaintiff’s November 8, 2016 grievance as follows: 3 Upon review of your medical record I am able to confirm labs were drawn on November 15, 2016 and a chronic care health 4 service encounter is scheduled within the chronic condition 5 monitoring guidelines. Chronic care health service encounters including diagnostics will continue to be completed according 6 to the schedule set by the medical provider within the chronic 7 condition monitoring guidelines. Please be advised, inmates will receive HCV treatment once they meet the following 8 criteria. Patient will be prioritized based on stage of the liver 9 disease (APRI score); patients must meet all of the preliminary criteria like labs and mental health assessment; patients who 10 are determined to be appropriate for treatment will be sent to 11 the Corizon Health HCV Treatment Review Committee to determine overall timing and priority of initiation of treatment, 12 based on relevant clinical criteria. (Doc. 67 at 50.) 13 14 On December 15, 2016, Plaintiff saw Christina Boryczka for his scheduled chronic 15 care appointment. He reported having HCV since May 2004, with no prior treatment. (Id. 16 at 52.) He stated that he may have acquired the infection from getting street tattoos, but he 17 denied intravenous or intranasal drug use, blood transfusions, or known sexual contacts. 18 (Id. at 52.) He denied abdominal pain/swelling, bleeding, bruising, icterus or jaundice, leg 19 swelling, cold intolerance, pruritus, or fatigue, and reported his appetite was good. (Id.) 20 Boryczka noted that Plaintiff was “[n]ot a candidate for [HCV] treatment based on most 21 recent APRI score of 0.55,” and she ordered new lab tests. (Id. at 53−54.) Boryczka told 22 Plaintiff that DAA treatment for his HCV would do more harm than good. (Pl. Decl. ¶ 57.) 23 On August 4, 2017, Plaintiff had a chronic care telemedicine visit with Dr. James 24 W. Baird. (Id. at 56−57.) Plaintiff stated he was diagnosed with HCV in 2004, which he 25 thought he got from using razors in ADC, and he complained of occasional stomach pain 26 and occasional swelling of the lower legs near the ankle. (Id. at 56.) Dr. Baird did not 27 physically examine Plaintiff. (Doc. 62 (Pl. Statement of Facts) ¶ 9; Doc. 62, Ex. A (Pl. 28 Decl.) ¶ 1.) Notes from the visit show that per “nursing evaluation,” Plaintiff’s abdomen 1 was non-tender, and he had no peripheral edema. (Doc. 67 at 56.) Dr. Baird noted that 2 Plaintiff’s HCV was “likely stable,” ordered new lab tests, and asked for nursing to 3 schedule Plaintiff for his next chronic care appointment for HCV in 6 months. (Id.) 4 On September 20, 2017, Plaintiff filed this action. (Doc. 1) 5 On November 7, 2017, Plaintiff was seen in sick call by Dr. Chris Johnson for 6 complaints of frequent urination. (Doc. 62 at 41.) On November 16, 2017, Plaintiff was 7 seen in sick call by Registered Nurse (RN) Barbara Floyd for complaints of a growing rash 8 on the back of his head and a toenail fungus. (Id. at 39.) On November 22, 2017, Plaintiff 9 was seen in sick call by Dr. Chris Johnson for complaints of a rash on the back of his head. 10 (Id. at 37.) On December 26, 2017, Plaintiff had labs taken, and his APRI score was 11 0.62. (Doc. 67 ¶ 10; Doc. 67 at 61; Doc. 68, Ex. Y (Hutchinson Decl.) ¶ 5(h).) 12 On January 27, 2018, Plaintiff saw NP Michael Brathwaite for his scheduled chronic 13 care appointment, and the objective notes from that visit show Plaintiff’s abdomen was soft 14 and nontender with no masses, and he had no edema or sensory deficits. (Id. at 67−69.) 15 NP Brathwaite noted that Plaintiff’s HCV was “asymptomatic” with an APRI score of 0.62 16 and ordered labs and follow up in 6 months. (Id. at 71.) Plaintiff testifies in his declaration 17 that “NP Brathwaite assured me he would take note of the swelling of my ankles, chills 18 that I have, my back hurting, thoughts being harder to remember, pain and pressure in [my] 19 stomach/liver area.” (Doc. 62 ¶ 11; Pl. Decl. ¶ 2.) 20 On July 5, 2018, Plaintiff had labs taken, and his APRI score was 0.98. (Doc. 67 ¶ 21 12; Doc. 67 at 76−77; Doc. 68, Ex. Y (Hutchinson Decl.) ¶ 5(i).) On July 14, 2018, 22 Plaintiff saw Dr. Michael Minev for his scheduled chronic care appointment, and Dr. 23 Minev indicated under “subjective notes” that Plaintiff denied chest pain, shortness of 24 breath, dizziness, exercise intolerance, fever, chills, recent illness, abdominal pain, changes 25 in stools, jaundice, weight loss, failure to thrive, ascites, or changes in mentation. (Doc. 67 26 at 83.) Dr. Minev reviewed Plaintiff’s lab results with Plaintiff, noted his APRI score was 27 0.98, and ordered routine labs for continued monitoring as well as a drug abuse screening, 28 and a fibrotest, which are both initial tests to determine whether Plaintiff is a candidate for 1 HCV treatment, if it becomes appropriate. (Id. at 89; Doc. 48, Ex. Q. (Minev Decl.) ¶ 5.) 2 Dr. Minev believed, based on Plaintiff’s lack of symptoms and APRI score of 0.98 that 3 Plaintiff was not at risk of serious harm or in substantial pain, and that the most reasonable 4 and appropriate plan of treatment was to continue routine monitoring of Plaintiff’s labs and 5 symptoms. (Minev Decl ¶¶ 6−9.) Plaintiff testifies that Dr. Minev “assured Plaintiff’s 6 complaints were properly documented, i.e. swelling of ankles, chills, back hurting, 7 thoughts being harder to remember, pain and pressure in [my] stomach/liver area.” 8 (Doc. 62 ¶ 13; Pl. Decl. ¶ 3.) This was a telemedicine visit, and Dr. Minev did not perform 9 a physical examination. (Id.) 10 Plaintiff has never had a liver biopsy or been screened for liver cancer. (Pl. Decl. 11 ¶¶ 14, 15.) 12 IV. Discussion 13 Defendants argue that they are entitled to summary judgment on the merits and 14 because Plaintiff’s claims are time-barred by the applicable statute of limitations. (Doc. 47 15 at 8−18.) 16 A. Statute of Limitations 17 Title 42 U.S.C. § 1983 does not include its own statute of limitations. TwoRivers v. 18 Lewis, 174 F.3d 987, 991 (1999). Federal courts apply the statute of limitations governing 19 personal injury claims in the forum state, “along with the forum state’s law regarding 20 tolling, including equitable tolling, except to the extent any of these laws is inconsistent 21 with federal law.” Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th 22 Cir. 2014) (citation omitted). In Arizona, the limitations period for personal injury claims 23 is two years. TwoRivers, 174 F.3d at 991; see also Ariz. Rev. Stat. § 12-542 (providing 24 that actions for personal injury must be commenced within two years after the cause of 25 action accrues). “If the defendant establishes a prima facie case that the statute was 26 applicable, the burden of going forward shifts to the plaintiff to show [his] claims fall 27 within a recognized exception to the statute.” Kiley v. Jennings, Strouss & Salmon, 927 28 P.2d 796, 799 (Ariz. Ct. App. 1996). 1 Although the statute of limitations applicable to § 1983 claims is borrowed from 2 state law, federal law continues to govern when a § 1983 claim accrues. Wallace v. Kato, 3 549 U.S. 384, 388 (2007); TwoRivers, 174 F.3d at 991. Under federal law, a claim accrues 4 “when the plaintiff knows or has reason to know of the injury which is the basis of the 5 action.” TwoRivers, 174 F.3d at 991; Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). 6 Additionally, the statute of limitations is tolled while a prisoner plaintiff pursues the 7 mandatory exhaustion process. Soto v. Sweetman, 882 F.3d 865, 871 (9th Cir. 2018). 8 Defendants assert that Plaintiff’s claims are time-barred because he alleges he that 9 was diagnosed with HCV in 2004 or 2005, and that he has been denied treatment since that 10 time, but did not file his complaint until September 27, 2017. (Doc. 47 at 8.) Defendants 11 appear to maintain that Plaintiff’s claims accrued as soon as he became aware that he had 12 HCV, and was required to file this action with two years. But Defendants do not point to 13 any evidence to show when Plaintiff became aware of any injuries he suffered due to his 14 alleged lack of proper HCV treatment. They fail to make a prima facie showing that 15 Plaintiff did not file this action within two years of when his claims accrued—meaning 16 when he first knew or had reason to know of his alleged injuries underlying his claims. See 17 TwoRivers, 174 F.3d at 991. Because Defendants fail to make this initial showing, Plaintiff 18 need not show anything, and the Court will deny summary judgment to Defendants on 19 statute of limitations grounds. 20 B. Eighth Amendment Claims 21 Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 22 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 23 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two 24 prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 25 First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 26 omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could 27 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 28 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds 1 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 2 citation omitted). 3 Second, a prisoner must show that the defendant’s response to that need was 4 deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference 5 if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the 6 knowledge component, the official must both be aware of facts from which the inference 7 could be drawn that a substantial risk of serious harm exists, and he must also draw the 8 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 9 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 10 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 11 Cir. 2002) (internal citations and quotation marks omitted), or when they fail to respond to 12 a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. Deliberate indifference 13 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. 14 Farmer, 511 U.S. at 835. “Neither negligence nor gross negligence will constitute 15 deliberate indifference.” Clement v. California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105 16 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980). 17 “A difference of opinion does not amount to deliberate indifference to [a plaintiff’s] serious 18 medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in 19 medical care, without more, is insufficient to state a claim against prison officials for 20 deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 21 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level 22 of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. And even if 23 deliberate indifference is shown, a prisoner must demonstrate harm caused by the 24 indifference. Jett, 439 F.3d at 1096; see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 25 1989). 26 1. Individual Capacity Claims 27 Plaintiff purports to sue all Defendants in both their individual and official 28 capacities. (Doc. 1 ¶¶ 20−23.) A claim against an individual in his or her official capacity 1 is “only another way of pleading an action against an entity of which an officer is an agent.” 2 Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 n.55 (1978). Because 3 Defendants Shroff and the members of the Corizon Treatment Review Committee are 4 Corizon employees, any official capacity claims against them are necessarily duplicative 5 of Plaintiff’s claims against Corizon. Thus, the Court will dismiss as duplicative Plaintiff’s 6 official capacity claims against these Defendants and address only Plaintiff’s individual- 7 capacity claims against them. 8 A suit against a defendant in his or her individual capacity seeks to impose personal 9 liability upon the official. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). “A plaintiff 10 must allege facts, not simply conclusions, that show that the individual was personally 11 involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 12 (9th Cir. 1998). 13 a. Dr. Shroff 14 Defendants do not dispute that Plaintiff’s HCV constitutes a serious medical need. 15 Summary judgment therefore hinges on the second prong of the Eighth Amendment 16 analysis – whether any Defendants were deliberately indifferent to that need. Defendants 17 argue that Plaintiff cannot make this showing as to Dr. Shroff because Dr. Shroff saw 18 Plaintiff only one time, on May 31, 2016, and he was not deliberately indifferent to 19 Plaintiff’s HCV. (Doc. 47 at 16.) 20 The medical record evidence pertaining to Plaintiff’s May 31, 2016 chronic care 21 visit with Dr. Shroff shows that Plaintiff presented no symptoms and that Dr. Shroff 22 assessed Plaintiff’s HCV as stable, ordered a diagnostic panel prior to Plaintiff’s next 23 chronic care visit, and planned to monitor Plaintiff’s liver functions and to follow up in 6 24 months. (Doc. 67 at 32, 36−38.) Plaintiff also testifies in his declaration that Dr. Shroff 25 told him that starting AAD treatment for his HCV would do more harm than good. 26 (Doc. 62 ¶ 57; Doc. 62, Ex. A (Pl. Decl.) ¶ 13.) 27 These facts do not establish that Dr. Shroff was deliberately indifferent. Dr. Shroff 28 noted that Plaintiff did not have any symptoms at that time and planned to continue 1 monitoring Plaintiff’s condition through laboratory tests and follow-up chronic care visits, 2 which Dr. Shroff ordered. Plaintiff does not argue or present evidence that he was suffering 3 from any HCV symptoms of which Dr. Shroff was made aware; nor does he dispute 4 Defendants’ facts that progression from chronic HCV infection to fibrosis and eventually 5 cirrhosis may take years in some patients, decades in others, or may not occur at all. (See 6 Doc. 48 ¶ 16; Doc. 62 ¶ 16.) The evidence also shows that Plaintiff’s most recent APRI 7 score was 0.40, putting him in the lowest priority level for HCV treatment absent any other 8 indications that he needed more immediate care. (See Doc. 48 ¶ 46; Doc. 67 at 27; Doc. 68, 9 Hutchinson Decl. ¶ 5(f).) 10 On these facts, Dr. Shroff’s decision to continue monitoring Plaintiff and his 11 expressed opinion that starting Plaintiff on antiviral drugs would do more harm than good 12 was not deliberately indifferent. The Court will grant Defendants’ Motion for Summary 13 Judgement as to Dr. Shroff. 14 b. Other Defendants 15 Plaintiff’s claims against all other Defendants in their individual capacities fail as a 16 matter of law for lack of personal involvement in Plaintiff’s HCV care. Defendants argue 17 that there is no evidence Ryan was ever subjectively aware of and showed deliberate 18 indifference to Plaintiff’s HCV. (Doc. 47 ¶ 16.) Plaintiff does not dispute this argument, 19 nor does he point to any evidence that would create a genuine issue of material fact that 20 Ryan − or any member of the Corizon HCV Treatment Review Committee − was 21 personally involved in his medical care or was otherwise made subjectively aware of his 22 HCV and showed deliberate indifference to his serious medical needs. To the extent 23 Plaintiff seeks to sue Ryan and members of the Corizon HCV Treatment Review 24 Committee in their individual capacities, these claims fail as a matter of law. The Court 25 will grant summary judgment to these Defendants on these claims. 26 2. Monell Liability Claims 27 To prevail on a claim against Ryan in his official capacity or against Corizon as a 28 private entity serving a traditional public function, Plaintiff must meet the test articulated 1 in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-94 2 (1978). See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying 3 Monell to private entities acting under color of state law). Plaintiff must show that an 4 official policy or custom caused the constitutional violation. Monell, 436 U.S. at 694. To 5 make this showing, he must demonstrate that (1) he was deprived of a constitutional right; 6 (2) Ryan or Corizon had a policy or custom; (3) the policy or custom amounted to deliberate 7 indifference to Plaintiff’s constitutional right; and (4) the policy or custom was the moving 8 force behind the constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. 9 Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). Further, if the policy or custom in 10 question is unwritten, the plaintiff must show that it is so “persistent and widespread” that 11 it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting 12 Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). 13 Defendants argue that Plaintiff cannot show that Ryan’s/Corizon’s HCV treatment 14 policies deprived him of his right to receive proper medical care or that any policy, custom, 15 or practice of these Defendants was the “moving force” behind a constitutional violation. 16 (Doc. 47 at 17.) In support, they argue in summary fashion that Corizon follows the BOP 17 guidelines for HCV treatment, and they claim, without specific support, that these 18 treatment policies “are supported by third party medical research.” (Id.) 19 Defendants have minimally met their burden of showing that Ryan’s/Corizon’s 20 HCV treatment policies are not deliberately indifferent. As noted, Plaintiff does not dispute 21 the facts from the BOP Manual that most complications from HCV infection occur in 22 people who develop cirrhosis, and that progression from chronic HCV infection to fibrosis 23 and eventually cirrhosis may take years in some patients, decades in others, or may not 24 occur at all. Under these facts, continued monitoring and the use of APRI scores and 25 physical symptoms to assess whether a prisoner needs treatment is reasonable. 26 It is also undisputed that, under Ryan’s/Corizon’s policies, Plaintiff received regular 27 chronic care appointments and lab tests to assess whether his APRI scores or physical 28 symptoms indicated a need for treatment. Plaintiff’s medical records show that between 1 May 2015 and July 2018 Plaintiff’s APRI scores fluctuated between 0.40 and 0.98, placing 2 him at the lowest priority for treatment, and that his medical providers consistently found 3 that his HCV was “stable” and “asymptomatic.” (See Doc. 67 ¶¶ 2, 3, 4, 5, 8, 9, 10, 11, 4 12.) Dr. Minev, who assessed Plaintiff’s symptoms and APRI scores on July 14, 2018, 5 also opined that, based on Plaintiff’s APRI of 0.98 and lack of symptoms, “the reasonable 6 and appropriate plan of treatment was to continue routine surveillance of Plaintiff’s labs 7 and symptoms.” (Minev Decl. ¶6.) These facts and medical opinion evidence additionally 8 support Defendants’ initial showing that Ryan’s/Corizon’s HCV policies and practices of 9 continued monitoring in lieu of immediate treatment with antiviral drugs were not 10 deliberately indifferent to Plaintiff’s serious medical needs. 11 Plaintiff fails to point to evidence that would create a genuine issue of material fact 12 that these policies and practices were deliberately indifferent. He argues generally that 13 there is “clear agreement in the medical community that all persons with chronic HCV 14 should be treated with DAA drugs,” and he claims that Ryan’s/Corizon’s policies of not 15 providing these drugs to all HCV prisoners is “in contravention of the prevailing standard 16 of care.” (Doc. 57 at 16.) But Plaintiff relies solely on his own lengthy summaries of 17 recent HCV treatment developments for which he fails to set forth discrete facts or cite to 18 specific evidence in support of his sweeping claims. (Id.) Absent more direct evidence to 19 controvert Defendants’ facts, a reasonable jury could not conclude from Plaintiff’s general 20 assertions about what constitutes proper HCV care that Ryan’s/Corizon’s HCV treatment 21 policies deprived Plaintiff of appropriate HCV treatment and were deliberately indifferent 22 to his serious medical needs. 23 In the alternative, even if Plaintiff could point to specific evidence to create a 24 genuine issue of material fact that Ryan’s/Corizon’s HCV treatment policies were 25 deliberately indifferent, Defendants argue that Plaintiff fails to show he suffered any injury 26 or that these policies were the “moving force” behind that injury. (Doc. 47 at 17.) They 27 rely on the records from Plaintiff’s chronic care visits to argue that there is “no objective 28 1 data indicating Plaintiff has suffered a decline in health or interference with daily activities” 2 due to a lack of HCV treatment. (Doc. 47 at 17−18.) 3 The medical records from Plaintiff’s chronic care visits largely support that Plaintiff 4 did not suffer any HCV-related injuries from March, 11, 2015, when Dr. Bertram noted he 5 reported “no symptoms” and had “no evidence of liver disease” (Doc. 67 at 10, 13), 6 through September 20, 2017, when Plaintiff filed this action. Only the medical notes from 7 Plaintiff’s August 4, 2017 chronic care visit with Dr. Baird show that Plaintiff complained 8 of occasional stomach pain and swelling of lower legs, but per the nursing evaluation at 9 that time, Plaintiff’s abdomen was non-tender and he had no peripheral edema, and Dr. 10 Baird assessed his HCV as “likely stable.” (Id. at 56−57.) 11 Thereafter, there is no evidence Plaintiff sought care for his reported stomach pain 12 and/or leg swelling or made any additional complaints about these issues until his next 13 chronic care visits with NP Braithwaite on January 27, 2018 and Dr. Minev on July 14, 14 2018, both of which occurred after Plaintiff filed his Complaint. The medical records from 15 these visits do not themselves document that Plaintiff had any symptoms or raised any such 16 complaints. They show, instead, that on January 27, 2018, NP Braithwaite noted that 17 Plaintiff’s abdomen was soft and nontender with no masses and Plaintiff had no edema or 18 sensory deficits. (Doc. 67 at 67−69.) On July 14, 2018, Dr. Minev noted that Plaintiff 19 denied chest pain, shortness of breath, dizziness, exercise intolerance, fever, chills, recent 20 illness, abdominal pain, changes in stools, jaundice, weight loss, failure to thrive, ascites, 21 or changes in mentation. (Id. at 83.) Plaintiff provides declaration evidence, however, that 22 he complained to both NP Braithwaite and Dr. Minev of swelling in his ankles, chills, back 23 pain, thoughts being harder to remember, and pain and pressure in his stomach/liver area, 24 and they each assured him they would document these issues. (Pl. Decl. ¶¶ 2−3.) 25 Taking Plaintiff’s testimony as true, as the Court must, these facts demonstrate that 26 Plaintiff complained to two separate chronic care providers of various symptoms, including 27 pain and pressure in the liver area, which he believed were caused by his HCV, and both 28 providers failed to address his complaints or include them in their medical notes and 1 treatment recommendations. Apart from being outside the relevant time of the Complaint, 2 however, these two incidents − while concerning − are insufficient to create a genuine issue 3 of material fact that Ryan/Corizon had either a written policy of ignoring prisoners’ 4 possible HCV symptoms or that Corizon medical providers had an unwritten practice of 5 doing so that was “so persistent and widespread” as to constitute a “permanent and well 6 settled” practice. Monell, 436 U.S. at 691. 7 In addition to these two chronic care visits, Plaintiff declares more generally that he 8 complained to Corizon personnel “verbationly [sic] and through the Inmate Grievance 9 Procedure” of having “chills, pain and pressure in [his] stomach/liver area at times, 10 thoughts becoming more and more harder to remember, swelling of body parts, and other 11 ailments.” (Id. ¶ 11.) But absent any facts or supporting evidence showing when and to 12 whom Plaintiff made these complaints and what responses he received, this general 13 assertion also does not create a genuine issue of material fact that any policy or regular 14 practice attributable to Ryan/Corizon caused Plaintiff harm or was “the moving force” 15 behind his alleged injuries. Plaintiff’s policy-based claims against Defendants Ryan and 16 Corizon therefore fail as a matter of law, and the Court will grant summary judgment to 17 these Defendants on these claims. 18 C. ADA and RA Claims 19 Under Title II of the ADA, “no qualified individual with a disability shall, by reason 20 of such disability, be excluded from participation in or be denied the benefits of the 21 services, programs, or activities of a public entity, or be subjected to discrimination by any 22 such entity.” 42 U.S.C. § 12132. A “public entity” is “any State or local government; [or] 23 (B) any department, agency, special purpose district, or other instrumentality of a State or 24 States or local government. . . .” 42 U.S.C. § 12131. Individuals, however, may be sued 25 under the ADA only in their official, rather than their individual, capacities. Vinson v. 26 Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (plaintiff cannot sue state officials in their 27 individual capacities to vindicate rights created by Title II of the ADA). 28 1 To prevail on an ADA claim, a plaintiff must show that he: “(1) is a handicapped 2 person; (2) that he is otherwise qualified; and that [prison officials’] actions either 3 (3) excluded his participation in or denied him the benefits of a service, program, or 4 activity; or (4) otherwise subjected him to discrimination on the basis of his physical 5 handicap.” Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996). The term “qualified 6 individual with a disability” includes “an individual with a disability who, with or without 7 . . . the provision of auxiliary aids and services, meets the essential eligibility requirements 8 for the receipt of services or participation in programs or activities provided by a public 9 entity.” 42 U.S.C. § 12131(2). 10 “The Rehabilitation Act is materially identical to and the model for the ADA, except 11 that it is limited to programs that receive federal financial assistance[.]” Armstrong v. 12 Davis, 275 F.3d 849, 862 n.17 (9th Cir. 2001) (internal quotations omitted). Title II of the 13 ADA was expressly modeled after § 504 of the RA. Zuckle v. Regents of the Univ. of Cal., 14 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (“there is no significant difference in analysis of 15 the rights and obligations created by the ADA and the Rehabilitation Act”). 16 Defendants argue that they are entitled to summary judgment on Plaintiff’s ADA 17 claim because Plaintiff cannot show that he has a disability within the meaning of the ADA, 18 or, even if his HCV qualifies as a disability, he cannot show that he has been denied 19 participation in any program, activity, or benefit because of his disability. (Doc. 47 at 20 10−11.) They further argue that they are entitled to summary judgment on Plaintiff’s RA 21 claim because the RA applies only to programs that receive federal funding, and Plaintiff 22 cannot show that that ADC or ASPC-Eyman, where Plaintiff is housed, receive federal 23 assistance. (Id.) 24 Plaintiff argues in his Response that his HCV qualifies as a disability under the ADA 25 because it is an impairment that limits one or more major life activities. (Doc. 57 at 10−12.) 26 He also argues that he is being denied medical services equal to those with other disabilities 27 and is therefore being discriminated against on the basis of his HCV. (Id. at 12−13.) 28 1 The Court need not determine whether or under what circumstances Plaintiff's HCV 2| may be regarded as a disability under the ADA because Plaintiff cannot show that he has | been excluded from participation in or denied the benefits of a service, program, or activity 4| for which he would otherwise qualify, or that he has been subjected to discrimination, 5 | because of his HCV. As Defendants point out, any such argument is circular because 6| Plaintiff is essentially arguing that he is being denied HCV treatment, for which he would otherwise qualify, because he has HCV. (Doc. 47 at 11, 12-13.) In fact, the evidence 8 | shows that Plaintiff is being treated for his HCV through regular chronic care visits and monitoring of his APRI scores. He is not being denied medical treatment because he has 10| HCV. To the extent Plaintiff argues he is being denied proper treatment with antiviral 11 | medications, this also is not a proper basis for an ADA or RA claim. The evidence shows that Plaintiff has not been approved for antiviral treatment because he does not meet the 13 | standards to be prioritized for such treatment under Ryan’s/Corizon’s HCV treatment policies, not because he has HCV. Absent this necessary showing, Plaintiff's ADA and RA claims fail as a matter of law, and the Court will grant summary judgment to Defendants on these claims. 17 IT IS ORDERED: 18 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 19 | Motion for Summary Judgment (Doc. 47). 20 (2) Defendants’ Motion for Summary Judgment (Doc. 47) is granted, and the 21 action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. 22 Dated this 13th day of August, 2019. 23 24 . Vana € Coup □□□ 26 David G. Campbell 27 Senior United States District Judge 28