Shores 325025 v. Centurion Incorporated

• Court: District Court, D. Arizona
• Decided: June 3, 2020
• Docket: 2:20-cv-00759
• Status: Unknown

Opinion

1 MH 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Heath Shores, No. CV 20-00759-PHX-DGC (CDB) 10 Plaintiff, 11 v. ORDER 12 Centurion Incorporated, et al., 13 Defendants.

14 15 On April 16, 2020, Plaintiff Robert Heath Shores, who is confined in the Arizona 16 State Prison Complex (ASPC)-Eyman, filed a pro se civil rights Complaint pursuant to 42 17 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). On 18 April 27, 2020, he filed a Motion for Appointment of Counsel (Doc. 6). The Court will 19 order Defendant Thomas to answer Counts One and Two of the Complaint and will dismiss 20 the remaining claims and Defendant without prejudice. Plaintiff’s Motion for Appointment 21 of Counsel will be denied without prejudice. 22 I. Application to Proceed In Forma Pauperis and Filing Fee 23 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 24 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 25 § 1915(b)(1). The Court will assess an initial partial filing fee of $69.16. The remainder 26 of the fee will be collected monthly in payments of 20% of the previous month’s income 27 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 1 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 2 government agency to collect and forward the fees according to the statutory formula. 3 II. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 8 relief may be granted, or that seek monetary relief from a defendant who is immune from 9 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the- 13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 28 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89, 94 (2007) (per curiam)). 3 III. Complaint 4 In his three-count Complaint, Plaintiff alleges that his Eighth Amendment rights 5 were violated when he was denied adequate medical care. Plaintiff names Centurion Inc. 6 and Centurion provider Siji Thomas as Defendants.1 He is seeking monetary damages, an 7 injunction requiring Centurion to send him to a cancer specialist for necessary medical 8 treatment,2 and a declaration that Defendants violated his Eighth Amendment rights. 9 Plaintiff’s claims are based on the following allegations: 10 On August 30, 2018, a pelvic ultrasound revealed that Plaintiff had a 1.5 inch nodule 11 on his prostate. (Doc. 1 at 3.)3 In response to this finding, a non-party provider, Dr. 12 Thompson, ordered an endorectal ultrasound on September 11, 2018.4 (Id.) 13 On May 2, 2019, Plaintiff was transferred to ASPC-Eyman, where he immediately 14 submitted a Health Needs Request (HNR) advising of his condition and requesting that 15 ASPC-Eyman’s medical unit assume treatment. (Id.) On or about August 26, 2019, 16 Defendant Thomas submitted a request for an endorectal ultrasound. (Id.) The ultrasound 17 was not performed, and on November 5, 2019, Plaintiff submitted a second HNR reporting 18 that significant prostate pain was preventing him from sleeping or attending classes. (Id.) 19

20 1 On July 1, 2019, Centurion of Arizona, L.L.C., assumed responsibility for 21 providing medical care to Arizona Department of Corrections (ADC) prisoners under a contract with ADC. Prior to that time, Corizon Health L.L.C. (“Corizon”) served as the 22 private health care provider for ADC. Although some of Plaintiff’s allegations relate to events that occurred before July 1, 2019, his failure to name Corizon as a Defendant 23 indicates that he is not seeking relief based on those events. 24 2 If Plaintiff seeks injunctive relief during the pendency of this case, he must file a motion for a temporary restraining order and/or preliminary injunction pursuant to Rule 65 25 of the Federal Rules of Civil Procedure. 26 3 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 27 4 Plaintiff states that his pelvic ultrasound was conducted “at another prison” (Doc. 1 28 at 3), but he does not identify the facility or indicate whether he was in ADC custody at the time. 1 He received a response stating that he was scheduled to see a provider on November 15, 2 2019. (Id.) 3 Plaintiff did not see a provider until December 6, 2019, when he was seen by 4 Defendant Thomas.5 (Id. at 3, 4.) At that appointment, Thomas called clinical coordinator 5 Terri Espinosa, who stated that Plaintiff had been scheduled for an endorectal ultrasound 6 at “M.M.G.,” but M.M.G. could not perform the procedure. (Id. at 4.) Espinosa indicated 7 that she would schedule the procedure with Banner Health, which had advised that it could 8 perform the ultrasound. (Id.) In her notes from this appointment, Defendant Thomas stated 9 that Plaintiff had reported ongoing prostate pain; that a prior ultrasound of Plaintiff’s 10 scrotum “showed trace R hydrocele”; that Plaintiff was experiencing painful urination, 11 painful bowel movements, testicular pain and swelling, and difficulty with sexual arousal; 12 and that approval for an endorectal ultrasound had been obtained but no appointment had 13 been scheduled. (Id.) Thomas also stated that she had “offered to increase Flomax, but 14 Patient declined.” (Id.) 15 On December 29, 2019, Thomas called Espinosa to inquire about the status of 16 Plaintiff’s endorectal ultrasound and was told by Espinosa that Banner did not perform the 17 procedure. (Id.) Defendant Thomas then canceled Plaintiff’s endorectal ultrasound and 18 advised Plaintiff that he would receive an “urgent” urology consult within 30 days. (Id. at 19 4, 5.) Thomas did not submit the request for a urology consultation until January 24, 2020. 20 (Id. at 5.) Thomas stated in this request that she was seeking authorization for “evaluation 21 and management or possible prostate biopsy by urologist” for a 34-year-old male who had 22 a history of nodular prostate, was experiencing difficulty urinating, had been diagnosed 23 with a nodular prostate in October 2018,6 and had a family history of prostate cancer. (Id.) 24 Thomas also stated that Plaintiff was supposed to have had a “TRUS”—presumably 25 referring to the requested rectal ultrasound—but the TRUS, which had been ordered in

26 5 Trainee Pamela Olmstead was also in attendance. (Doc. 1 at 4.) 27 6 Plaintiff states that he showed Defendant Thomas his August 30, 2018 ultrasound 28 results and the September 11, 2018 endorectal ultrasound order, but he does not identify when these materials were shown to Thomas. (Doc. 1 at 5.) 1 August 2019, had never been performed. (Id.) Thomas noted that Plaintiff had reportedly 2 lost ten pounds in one month. (Id.) 3 Defendant Thomas’s request for a urology consultation was authorized on 4 January 31, 2020, but no consultation has taken place. (Id. at 5, 6.) And although Plaintiff 5 was informed by M.P. Burns and Defendant Thomas on January 29, 2020, that he would 6 be seen weekly “to monitor his condition and inform [him] o[f] the status of his consult,” 7 he has not been advised of the status of his urology consultation or been seen by a provider 8 since that time. (Id. at 6.) As a result of Defendants’ conduct, Plaintiff’s medical condition 9 has deteriorated and he has been placed on psychiatric medication. 10 In Count One, Plaintiff appears to assert a claim based on events that occurred 11 between July 1, 2019,7 and December 29, 2019, including the cancellation of Plaintiff’s 12 endorectal ultrasound. Count Two appears to be based on Defendant Thomas’s purported 13 delay in requesting a urology consultation following Plaintiff’s December 29, 2019 14 appointment and Plaintiff’s failure to receive that consultation. Count Three is premised 15 on Plaintiff’s failure to be seen weekly on the provider line and updated on the status of his 16 urology consultation. 17 IV. Failure to State a Claim 18 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 19 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 20 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 21 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 22 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 23 as a result of the conduct of a particular defendant and he must allege an affirmative link 24 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 25 72, 377 (1976). 26 . . . . 27 . . . .

28 7 See n.1, supra. 1 A. Defendant Centurion 2 To state a claim under § 1983 against a private entity performing a traditional public 3 function, such as providing medical or dental care to prisoners, a plaintiff must allege facts 4 to support that his constitutional rights were violated as a result of a policy, decision, or 5 custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 6 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 7 1997). A plaintiff must allege the specific policy or custom and how it violated his 8 constitutional rights. A private entity is not liable simply because it employed individuals 9 who allegedly violated a plaintiff’ s constitutional rights. See Tsao, 698 F.3d at 1139. 10 Plaintiff does not allege that his injuries occurred as the result of a policy or custom of 11 Defendant Centurion. Accordingly, Plaintiff has failed to state a claim against Centurion, 12 and this Defendant will be dismissed. 13 B. Count Three 14 Not every claim by a prisoner relating to inadequate medical treatment states a 15 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 16 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 17 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 18 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 19 Cir. 2006). 20 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 21 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 22 know of and disregard an excessive risk to inmate health; “the official must both be aware 23 of facts from which the inference could be drawn that a substantial risk of serious harm 24 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 25 Deliberate indifference in the medical context may be shown by a purposeful act or failure 26 to respond to a prisoner’s pain or possible medical need and harm caused by the 27 indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a 28 prison official intentionally denies, delays, or interferes with medical treatment or by the 1 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 2 97, 104-05 (1976); Jett, 439 F.3d at 1096. 3 Deliberate indifference is a higher standard than negligence or lack of ordinary due 4 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 5 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 6 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 7 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 8 do not support a claim under § 1983). “A difference of opinion does not amount to 9 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 10 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 11 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 12 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 13 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 14 Estelle, 429 U.S. at 105. 15 Plaintiff alleges in Count Three that he has not received the weekly appointments 16 he was promised or been advised of the status of his authorized urology consultation. 17 While he alleges that Defendant Thomas promised he would be seen on the provider line 18 weekly, he does not allege any facts to show that his failure to receive these appointments 19 and updates was a result of deliberately indifferent conduct on the part of Thomas. Indeed, 20 it is not even clear that Thomas is aware of this failing. Accordingly, Plaintiff has failed 21 to state a claim against Defendant Thomas in Count Three, and this count will be dismissed 22 without prejudice. 23 V. Claims for Which an Answer Will be Required 24 Liberally construed, Plaintiff has stated a claim against Defendant Thomas in 25 Counts One and Two, and this Defendant will be required to respond to the Complaint. 26 VI. Motion for Appointment of Counsel 27 Plaintiff requests that counsel be appointed to represented him because his current 28 incarceration renders him unable to investigate his claims, collect evidence, or “argue this 1 matter.” Plaintiff also states that his psychological medication hinders his thinking, 2 memory, and “other functions,” and he implies that he lacks education and adequate law 3 library access. 4 There is no constitutional right to the appointment of counsel in a civil case. See 5 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 6 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 7 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 8 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 9 1991). A determination with respect to exceptional circumstances requires an evaluation 10 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 11 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 12 factors is dispositive and both must be viewed together before reaching a decision.” Id. 13 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 14 Having considered both elements, it does not appear at this time that exceptional 15 circumstances are present that would require the appointment of counsel in this case. 16 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 17 deny without prejudice Plaintiff’s Motion for Appointment of Counsel. 18 VII. Warnings 19 A. Release 20 If Plaintiff is released while this case remains pending, and the filing fee has not 21 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 22 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 23 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 24 result in dismissal of this action. 25 B. Address Changes 26 Plaintiff must file and serve a notice of a change of address in accordance with Rule 27 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 28 1 relief with a notice of change of address. Failure to comply may result in dismissal of this 2 action. 3 C. Copies 4 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 5 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 6 of every document he files or to submit an additional copy of every filing for use by the 7 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 8 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 9 including, with every document he files, a certificate of service stating that this case is 10 subject to General Order 14-17 and indicating the date the document was delivered to 11 prison officials for filing with the Court. 12 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 13 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 14 copy of every document that he files, and include a certificate stating that a copy of the 15 filing was served; and (b) submit an additional copy of every filing for use by the Court. 16 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 17 being stricken without further notice to Plaintiff. 18 D. Possible Dismissal 19 If Plaintiff fails to timely comply with every provision of this Order, including these 20 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 21 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 22 to comply with any order of the Court). 23 IT IS ORDERED: 24 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 25 (2) As required by the accompanying Order to the appropriate government 26 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 27 of $69.16. 28 1 (3) Plaintiff’s Motion for Appointment of Counsel (Doc. 6) is denied without 2 prejudice. 3 (4) Count Three and Defendant Centurion are dismissed without prejudice. 4 (5) Defendant Thomas must answer Counts One and Two. 5 (6) The Clerk of Court must send Plaintiff this Order, and a copy of the 6 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 7 for Waiver of Service of Summons form for Defendant Thomas. 8 (7) Plaintiff must complete and return the service packet to the Clerk of Court 9 within 21 days of the date of filing of this Order. The United States Marshal will not 10 provide service of process if Plaintiff fails to comply with this Order. 11 (8) If Plaintiff does not either obtain a waiver of service of the summons or 12 complete service of the Summons and Complaint on a Defendant within 90 days of the 13 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 14 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 15 16.2(b)(2)(B)(ii). 16 (9) The United States Marshal must retain the Summons, a copy of the 17 Complaint, and a copy of this Order for future use. 18 (10) The United States Marshal must notify Defendants of the commencement of 19 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 20 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 21 Order. 22 (11) If Defendant agrees to waive service of the Summons and Complaint, she 23 must return the signed waiver form to the United States Marshal, not the Plaintiff, within 24 30 days of the date of the notice and request for waiver of service pursuant to Federal 25 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 26 (12) The Marshal must immediately file signed waivers of service of the 27 summons. If a waiver of service of summons is returned as undeliverable or is not returned 28 bya Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: 3 (a) personally serve copies of the Summons, Complaint, and this Order 4 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 5 and 6 (b) within 10 days after personal service is effected, file the return of 7 service for Defendant, along with evidence of the attempt to secure a waiver of 8 service of the summons and of the costs subsequently incurred in effecting service 9 upon Defendant. The costs of service must be enumerated on the return of service 10 form (USM-285) and must include the costs incurred by the Marshal for 11 photocopying additional copies of the Summons, Complaint, or this Order and for 12 preparing new process receipt and return forms (USM-285), if required. Costs of 13 service will be taxed against the personally served Defendant pursuant to Rule 14 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 15 Court. 16 (13) Defendant must answer the Complaint or otherwise respond by appropriate 17 | motion within the time provided by the applicable provisions of Rule 12(a) of the Federal 18 | Rules of Civil Procedure. 19 (14) This matter is referred to Magistrate Judge Camille D. Bibles pursuant to 20 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 21 authorized under 28 U.S.C. § 636(b)(1). 22 Dated this 2nd day of June, 2020. 23 Daal Cour Dank & phth 36 David G, Campbell Senior United States District Judge 27 28