1 WO SKC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 D.J. Szymanski, No. CV-21-00231-TUC-SHR 10 Plaintiff, 11 v. Order Granting Summary Judgment 12 Centurion Health Incorporated, et al., 13 Defendants.
14 15 Plaintiff D.J. Szymanski, who is in custody of the Arizona Department of 16 Corrections, Rehabilitation and Reentry (ADCRR), brought this pro se civil rights action 17 pursuant to 42 U.S.C. § 1983. Defendants ADCRR’s former contracted healthcare 18 provider Centurion Health Incorporated (Centurion) and Nurse Practitioners (NPs) Natalie 19 Bell and Lara Alonso have filed a Successive Motion for Summary Judgment. (Doc. 98.) 20 Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. 21 Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 100), and he opposes the 22 Motion. (Doc. 104.) Defendants filed a Reply. (Doc. 110.) 23 The Court will grant Defendants’ Successive Motion for Summary Judgment and 24 terminate this action. 25 I. Background 26 On screening Plaintiff’s First Amended Complaint under 28 U.S.C. § 1915A(a), the 27 Court found Plaintiff stated an Eighth Amendment medical care claim against Defendants 28 Centurion, NP Bell, NP Alonso, Director of Nursing (DON) D. Dennis, and Assistant 1 Director of Nursing (ADON) Jennifer Meyer based on these Defendants’ alleged failures 2 to treat Plaintiff’s Hepatitis C Virus (HCV). (Doc. 19.) The Court later joined Naphcare, 3 ADCRR’s current contracted healthcare provider, for purposes of injunctive relief only. 4 (Doc. 49.) 5 Defendants subsequently moved for summary judgment (Doc. 77), and the Court 6 granted the Motion in part and denied it in part, leaving only Plaintiff’s Eighth Amendment 7 medical care claims for damages against Defendants Centurion, Bell, and Alonso. 8 (Doc. 90.) 9 II. Remaining Claims 10 In its Order addressing Defendants’ initial Motion for Summary Judgment, the 11 Court found triable issues of fact whether Defendants NP Bell and NP Alonso, who were 12 responsible for conducting Plaintiff’s chronic care visits for his HCV, deliberately 13 disregarded Plaintiff’s verbal and written complaints of gastrointestinal (GI) issues— 14 including severe abdominal pain, bloody stools, and loss of bowel control—and other 15 reported symptoms, including headaches and fatigue, which Plaintiff attributed to his HCV. 16 (Doc. 90 at 15−17.) The Court also found triable issues of fact whether these symptoms 17 were attributable to Plaintiff’s HCV and whether, by failing to address these symptoms and 18 by failing to refer Plaintiff to Defendant Centurion’s HCV Committee for possible HCV 19 treatment, Defendants Alonso and Bell were deliberately indifferent to Plaintiff’s serious 20 medical needs, resulting in needless pain and suffering to Plaintiff, in violation of his 21 Eighth Amendment right to receive adequate medical care. (Id. at 16−19.) 22 The Court also denied summary judgment to Defendant Centurion, finding 23 Defendants failed to meet their initial burden of showing Centurion’s HCV treatment 24 policies were not deliberately indifferent to Plaintiff’s serious medical needs. (Id. at 25 20−22.) The Court noted Defendants failed to produce Centurion’s relevant HCV policies; 26 Centurion’s Statewide Medical Director, Dr. Wendy Orm, materially misrepresented 27 ADCRR’s relevant HCV treatment guidelines, which Dr. Orm claimed Centurion 28 followed, “matche[d] the most recent ‘Gold Standard’ HCV Guidelines by the American 1 Association for the Study of Liver Diseases and Infectious Diseases Society of America; 2 and Defendants failed to show Centurion required its chronic care providers or its HCV 3 Committee to consider prisoners’ reported symptoms, such as those raised by Plaintiff, 4 when deciding whether patients qualified for HCV treatment. (Id. at 3−5, 20−22.) 5 Defendants moved for reconsideration of this Order, arguing, 6 In denying summary judgment as to the claims against NP Bell, NP Alonso, and Centurion, the Court was not given the 7 opportunity to consider additional medical records showing 8 Plaintiff’s alleged abdominal symptoms were not the result of his chronic HCV infection, but rather a gastrointestinal 9 condition[,] which neither provider had any involvement in 10 diagnosing or treating. 11 (Doc. 91 at 2.) 12 The Court rejected this argument, noting, as movants, Defendants had the burden to 13 produce this evidence and “to direct the Court to those portions of the record demonstrating 14 an absence of a genuine issue of material fact regarding the merits of Plaintiff’s claims 15 against them.” (Doc. 93 at 3 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).) 16 The Court also found Defendants had not shown they could not have, with reasonable 17 diligence, presented this evidence earlier. (Id. at 5.) The Court therefore denied 18 Defendants’ Motion for Reconsideration but nonetheless permitted Defendants to file a 19 subsequent motion for summary judgment with this additional evidence. 20 III. Summary Judgment Standard 21 A court must grant summary judgment “if the movant shows that there is no genuine 22 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 23 Fed. R. Civ. P. 56(a); see also Celotex, 477 U.S. at 322−23. The movant bears the initial 24 responsibility of presenting the basis for its motion and identifying those portions of the 25 record, together with affidavits, if any, it believes demonstrate the absence of a genuine 26 issue of material fact. Id. at 323. 27 If the movant fails to carry its initial burden of production, the nonmovant need not 28 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 2 to the nonmovant to demonstrate the existence of a factual dispute and explain how the fact 3 in contention is material, i.e., how it affects the outcome of the suit under the governing 4 law, and the dispute is genuine, i.e., a reasonable jury could return a verdict for the 5 nonmovant based on the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 6 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). 7 The nonmovant need not establish a material issue of fact conclusively in its favor, First 8 Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968); however, it must 9 “come forward with specific facts showing that there is a genuine issue for trial.” 10 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 11 citation omitted); see Fed. R. Civ. P. 56(c)(1). 12 At summary judgment, the judge’s function is not to weigh the evidence and 13 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 14 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 15 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 16 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 17 IV. Preliminary Issues and Warning 18 Instead of producing a new Statement of Facts in support of their Successive Motion 19 for Summary Judgment, Defendants merely tacked on additional paragraphs to their 20 original Statement of Facts in support of their previous Motion for Summary Judgment, 21 which the Court denied, without attempting to consolidate or eliminate any duplicative, 22 false, or conflicting statements of fact. (Compare Doc. 75, with Doc. 99.) 23 For example, in their instant Statement of Facts, Defendants provide the same facts 24 about Plaintiff’s October 8, 2020 chronic care visit with Defendant Bell as were in their 25 previous Statement of Facts, asserting Plaintiff denied any HCV symptoms including 26 bloody stools. (See Doc. 75 ¶ 17; Doc. 99 ¶ 17.) Then, in a much later paragraph, which 27 is based in part on the new evidence Defendants produced in support of their Successive 28 Motion for Summary Judgment, Defendants acknowledge for the first time Plaintiff 1 complained of bloody stools, and they cite to an updated declaration of NP Bell, stating 2 Plaintiff complained of bloody stools and explaining what Bell did to address this 3 complaint, thus leaving the Court with two conflicting sets of facts about the same visit in 4 the same Statement of Facts. (See Doc. 99 ¶¶ 17, 66.) 5 Additionally, as with their previous Statement of Facts, Defendants did not arrange 6 their facts in chronological order but separated them according to medical provider, so even 7 closely-related facts tied to consecutive medical visits over a relatively short period of time 8 are scattered in several places throughout their Statement of Facts, making it difficult to 9 piece together the care Plaintiff received or failed to receive for the same complaint or to 10 ascertain the relevant context of each provider’s treatment decisions. 11 Coupled with the above-discussed duplications and contradictions, Defendants 12 effectively expect both Plaintiff and the Court to navigate an unwieldy, duplicative, and 13 internally contradictory Statement of Facts to try to establish and address the relevant facts 14 Defendants offer in support of their Motion. This is not acceptable on a motion for 15 summary judgment. See Fed R. Civ. P. 56(c), LRCiv 56.1(a); Orr v. Bank of America, 285 16 F.3d 764, 775 (9th Cir. 2002) (“[J]udges need not paw over the files without assistance 17 from the parties.” (alteration in original) (citation omitted)). 18 Of further concern, in addition to continuing to assert facts their own evidence now 19 contradicts, Defendants did not eliminate or attempt to revise any statements of fact the 20 Court in its prior Order noted were unsupported by the evidence or demonstrably false. 21 Instead, Defendants continue to assert facts the Court has already rejected without 22 providing any new facts or evidence to remedy the issues the Court identified in its prior 23 summary judgment Order. (See Doc. 99 ¶¶ 7−12.) Although the Court only relied on 24 Defendants’ properly supported facts in its prior Order and will again only consider 25 properly supported facts in support of Defendants’ Successive Motion for Summary 26 Judgment, the Court advises defense counsel to be more careful about what they include in 27 statements of fact in the future. 28 1 V. Relevant Facts1 2 Plaintiff was diagnosed with HCV in early 2014. (Doc. 99, Defs.’ Statement of 3 Facts (DSOF) ¶ 5; Doc. 107, Pl.’s Controverting Statement of Facts (PCSOF) ¶ 5.) 4 On November 1, 2019, Defendant NP Bell saw Plaintiff for a Chronic Care visit for 5 HCV, and Bell reviewed Plaintiff’s previous HCV lab results. (DSOF ¶ 6.) Bell noted 6 Plaintiff denied abdominal pain, bloating, blood in urine/stool, or edema, but he had 7 “occasional bouts of loose stool with accidents.” (Doc. 75-2 at 6−7.) Bell ordered routine 8 HCV labs before Plaintiff’s next chronic care visit, and she ordered extra bed linen changes 9 for 90 days. (Id. at 11.) Plaintiff requested HCV treatment, but Bell denied this request. 10 (PCSOF ¶ 6.)2 11 On April 21, 2020, NP Bell saw Plaintiff for his next Chronic Care appointment, 12 and Bell noted Plaintiff denied abdominal pain, bloating, vision changes, headache, edema, 13 or bloody stool/urine. (DSOF ¶ 13.) Plaintiff disputes he denied these symptoms and states 14 he requested HCV treatment, but Bell denied his request. (PCSOF ¶ 13.) Bell submitted 15 an order for routine HCV labs. (DSOF ¶ 15.) 16 On September 25, 2020, Plaintiff submitted a health needs request (HNR), stating 17 “I have been defecating and there has been blood in my stools. I am in a lot of pain,” and 18 requesting to be moved to a medical unit. (Doc. 105, Pl.’s Additional Statement of Facts 19 (PASOF) ¶ 6; Doc. 84-1 at 17.) Registered Nurse (RN) Amanda Landeros wrote the plan 20 21 1 A more complete set of facts about Plaintiff’s HCV-related medical care is set forth in the Court’s prior summary judgment order. (See Doc. 90 at 3−11.) Because the 22 Court denied summary judgment to Defendants based solely on their alleged deliberate 23 indifference to Plaintiff’s reported symptoms, which Defendants did not show were unrelated to Plaintiff’s untreated HCV, and Defendants’ Successive Motion for Summary 24 Judgment is based on new evidence about these symptoms and the care Plaintiff received 25 for them, the Court will not reproduce all the facts already set forth in its prior Order but will instead focus on Defendants’ new facts and evidence. 26 27 2 In DSOF ¶ 6, Defendants once again leave out the facts from Plaintiff’s medical records showing Plaintiff complained of occasional bouts of loose stools and accidents and 28 NP Bell ordered extra bed linens, and unlike for other visits, Defendants did not provide any updated/corrected facts about this visit elsewhere in their Statement of Facts. 1 was to take a stool sample for a hemoccult and Plaintiff was scheduled for a sick call. (Doc. 2 84-1 at 17–18.) 3 On October 8, 2020, NP Bell saw Plaintiff for his next Chronic Care appointment, 4 and Bell noted Plaintiff denied nausea, vomiting, diarrhea, shortness of breath, abdominal 5 pain, bloating, vision changes, headache, sore throat, earache, coughing, edema, or bloody 6 urine, but he reported bloody stools. (DSOF ¶ 66.) Bell assessed bowel sounds and 7 conducted a rectal exam, which showed no hemorrhoids, prostate masses, or bleeding 8 masses to explain Plaintiff’s symptoms. (Id.) Based on Plaintiff’s latest HCV labs, 9 Plaintiff’s fibrosis score was F0, meaning no fibrosis, so Bell did not consider Plaintiff’s 10 bloody stool complaints indicative of worsening HCV or complications requiring urgent 11 attention. (Id. ¶ 68.) Bell ordered routine HCV labs and a hemoccult, a diagnostic test that 12 screens for blood in the stool. (Id. ¶ 67.) 13 On November 19, 2020, Plaintiff had an on-site hemoccult, which came back 14 positive for blood in stools. (Id. ¶ 70.) On November 24, 2020, NP Jillian Riley submitted 15 a request for an off-site gastroenterology consult. (Id.) 16 On January 15, 2021, Plaintiff had an off-site gastroenterology appointment with 17 Dr. Mohammad Khan to assess his GI complaints, and Dr. Khan opined Plaintiff’s 18 symptoms were suggestive of gastroesophageal reflux disease and his bloody stools were 19 most likely due to internal hemorrhoids. (DSOF ¶ 71; Doc. 91-1 at 2−3.) After this visit, 20 NP Bell reviewed Dr. Khan’s recommendations and submitted a request for a colonoscopy. 21 (DSOF ¶ 72.) 22 On January 23, 2021, Plaintiff submitted an HNR, stating “my gastro-intestinal 23 problem is bad with blood and pain, I need pain meds. And I need to renew my medical 24 chronos for pull-ups, wipes, linens, lower bunk, showers, and chair. Please see me ASAP.” 25 (Doc. 84-1 at 19.) ADON Dennis responded under the Plan of Action, “1st HNR addressed 26 has [illegible] GI consult.” (Id.) 27 On February 13, 2021, Plaintiff returned to Dr. Khan for a colonoscopy, and Dr. 28 Khan discovered two polyps on Plaintiff’s colon, which he removed; rectal ulcers, which 1 were not bleeding at the time; and moderate, non-bleeding hemorrhoids. (DSOF ¶ 73.) 2 The polyps were biopsied and confirmed Plaintiff had solitary rectal ulcers, which occur 3 when sores develop in the rectum and can cause rectal bleeding/straining during bowel 4 movements. (Id. ¶ 74.) 5 On May 17, 2021, Plaintiff submitted an Informal Complaint seeking direct-acting 6 antiviral (DAA) medications to treat his HCV (DSOF ¶ 45), and on May 21, 2021, Plaintiff 7 submitted an HNR, stating, 8 Just recently, I had a colonoscopy due to blood in my bowels, my polyps are being analyzed. Daily activities are becoming 9 harder . . . due to my gastro-intestinal problem, I can’t control 10 my bowels. I am in pain. Last year D.O.N. Palmer ok’d me to go to ADA housing. Please move me to 7A Medical ADA 11 Housing so I can receive Assistance. Thank you. 12 (PASOF ¶ 9; Doc. 84-1 at 20.) Plaintiff was referred to the provider line. (Doc. 84-1 at 13 20.) 14 On May 25, 2021, RN Justin Rhodes saw Plaintiff in response to his HNR regarding 15 loss of bowel control and request for ADA housing, and Rhodes referred Plaintiff to Dr. 16 Armando Deguzman for further care. (DSOF ¶ 83.) 17 On June 2, 2021, Plaintiff saw Dr. Deguzman, and Dr. Deguzman noted Plaintiff’s 18 incontinence complaints and prior GI consultation results. (Id.) Dr. Deguzman prescribed 19 fiber and Bentyl (used to treat irritable bowel syndrome), and authorized Plaintiff for a 20 lower bunk. (Id.) 21 On June 8, 2021, ADON Dennis responded to Plaintiff’s May 17, 2021 Informal 22 Complaint seeking DAA medication and advised Plaintiff labs would be ordered to 23 continually assess his priority for DAA treatment. (Id. ¶¶ 43−45.) She also entered a verbal 24 order for a Hep C RNA Quant test to measure Plaintiff’s viral load. (Id.) 25 On June 9, 2021, ADON Dennis conducted a no-contact Health Services Encounter 26 in response to another Informal Complaint Plaintiff filed requesting DAA treatment, and 27 she advised Plaintiff several criteria needed to be met before DAAs would be provided and 28 new labs had been ordered and would be discussed at Plaintiff’s next chronic care visit. 1 (Id. ¶ 45.) 2 On June 17, 2021, Plaintiff submitted an HNR, stating, “in my stomach near my 3 liver area has been hurting really bad. I think it has to do with my hep c., please see me 4 and stop my pain and fix my hep c. thank you.” (PASOF ¶ 10; Doc. 84-1 at 21.) In 5 response, RN Rhodes wrote Plaintiff was referred to the “Provider Line.” (Doc. 84-1 at 6 21.) The same day, Plaintiff was seen by Nursing Supervisor Angela Simpson, and 7 Simpson noted Plaintiff had bowel sounds in all quadrants, no palpable masses, and upper 8 right quadrant pain, and she referred Plaintiff to NP Troyin for further treatment. (DSOF 9 ¶ 84; Doc. 99-2 at 20.) 10 On June 29, 2021, Plaintiff was seen by NP Toyin, and NP Toyin “renewed 11 Plaintiff’s prescription for Bentyl and prescribed Pantoprazole (used to treat GERD).” 12 (DSOF ¶ 84.) 13 On August 30, 2021, Plaintiff submitted an HNR, stating “I am having abdominal 14 pain, fatigue and headaches. I am hurting, please help.” (Doc. 84-1 at 22.) On September 15 2, 2021, ADON Dennis scheduled Plaintiff for sick call. (Doc. 84-1 at 23.) 16 On September 14, 2021, Plaintiff submitted another HNR, stating, “I feel fatigued 17 and have abdominal pain,” and on September 15, 2021, RN Darryl Thayer scheduled 18 Plaintiff for sick call. (PASOF ¶ 13: Doc. 84-1 at 24.) 19 On September 20, 2021, Defendant NP Laura Alonso saw Plaintiff for his next 20 Chronic Care appointment for his HCV. (DSOF ¶¶ 21, 51.) NP Alonso did not indicate 21 whether Plaintiff had any subjective symptoms at the time. (Doc. 75-1 at 40.) She 22 reviewed the results of Plaintiff’s fibrosis test, showing F0−F1 stage fibrosis, indicating 23 little to no liver scarring. (DSOF ¶ 51.) She also ordered follow-up labs, including a 24 diagnostic panel, fibrosis test, and HCV RNA Quant test, to be scheduled prior to Plaintiff’s 25 next Chronic Care appointment. (Id. ¶ 53.) 26 On September 27, 2021, Plaintiff submitted an HNR, stating, “my stomach is 27 constantly upset and I have been having blood in my stools. [P]lease help,” and on 28 September 28, 2021, RN Lisa Graybill scheduled Plaintiff for a sick call. (Doc. 84-1 at 1 25–26.) 2 On November 22, 2021, Plaintiff submitted an HNR, complaining of GI problems, 3 including difficulty controlling his bowels and bloody stools. (PASOF ¶ 16; Doc. 105-2 at 4 22.) The response informed Plaintiff a “[follow-up] appt is scheduled.” (Doc. 105-2 at 5 22.) 6 On March 15, 2022, NP King saw Plaintiff for his next Chronic Care visit for his 7 HCV, and King noted Plaintiff denied any abdominal pain, fatigue, jaundice, or 8 discoloration of stool/urine. (DSOF ¶ 24.) Plaintiff disputes he denied these symptoms 9 and states he told NP King he had abdominal pain, fatigue, jaundice, and blood in 10 stools/urine. (PCSOF ¶ 24.) NP King reviewed the results of Plaintiff’s fibrosis test, which 11 showed he had F0−F1 fibrosis; noted Plaintiff’s HCV was under “good control”; scheduled 12 Plaintiff for his next Chronic Care appointment; and advised Plaintiff how to mitigate his 13 risk of HCV infection and complications by avoiding prison tattoos, IV drugs, and certain 14 medications. (DSOF ¶ 24.) Plaintiff disputes NP King reviewed ways to mitigate his HCV 15 risks and states he requested HCV treatment, but it was refused. (PCSOF ¶ 24.) 16 On March 16, 2022, Plaintiff had a follow up gastroenterology consult with Dr. 17 Khan, and Dr. Khan again determined Plaintiff’s symptoms were suggestive of 18 gastroesophageal reflux disease and his bloody stools were most likely due to internal 19 hemorrhoids. (DSOF ¶ 75.) Dr. Khan advised Plaintiff to increase fiber, recommended a 20 hemorrhoidal cream and suppositories as needed, and recommended an exploratory 21 endoscopy. (Id.) On March 18, 2022, Centurion providers prescribed anusol cream for 22 Plaintiff’s hemorrhoids. (Id. ¶ 76.) 23 On April 13, 2022, Plaintiff underwent an endoscopy, which detected a medium- 24 sized hiatal hernia. (Id.) According to NP Bell, a hiatal hernia occurs when the upper part 25 of the stomach bulges through the diaphragm into the chest cavity and can cause symptoms 26 such as heartburn, abdominal discomfort, and rectal bleeding. (Id. ¶ 77.) Plaintiff also had 27 a pathology analysis, which ruled out a bacterial infection in his GI system. (Id.) 28 On May 6, 2022, Plaintiff submitted an HNR, stating, “I have pain in my abdominal 1 area and am very tired.” (PCSOF ¶ 78.) The same day, Plaintiff saw RN Yuhlanda Webb, 2 and he reported, “It’s been for years. Now that I found out I have the hernia, I was thinking 3 it might be the Hep C. My skin’s not popping out from the hernia. . . . Last week there 4 were a couple days there was blood in my stool but not now. I used the anusol.” (Doc. 91- 5 7 at 2.) Plaintiff also pointed to his epigastric area and stated, “I just wanted it documented 6 that I was having some pain there.” (Id.) 7 On September 8, 2022, Dr. Dennis William saw Plaintiff for his last Chronic Care 8 visit with a Centurion provider, and Dr. William reviewed the results of Plaintiff’s fibrosis 9 test, showing F0−F1 stage fibrosis, and ordered a follow-up fibrosis test. (DSOF ¶ 25.) 10 The test Dr. William ordered did not take place before September 31, 2022, when 11 Centurion’s contract with ADCRR expired. (Id.) Plaintiff states he told Dr. William he 12 had abdominal pain, fatigue, jaundice, and blood in stools/urine. (PCSOF ¶ 25.) 13 On October 5, 2022, after Naphcare took over as the ADCRR medical provider, 14 Plaintiff submitted an HNR, stating, “I am pissing blood, in pain, it hurts immensely.” 15 (PASOF ¶ 19; Doc. 105-2 at 44.) Naphcare records show Plaintiff had a urinalysis, and it 16 was positive for blood. (Doc. 105-2 at 45.) 17 On May 10, 2023, Naphcare providers approved Plaintiff to begin HCV treatment, 18 and, on May 17, 2023, Plaintiff began receiving the anti-viral medication Mavyret. (DSOF 19 ¶¶ 62−63.) He subsequently completed his 56-day treatment course without complications. 20 (Id. ¶ 63.) Plaintiff was scheduled for follow up at the Chronic Care Clinic in mid-August 21 2023, with a separate follow-up scheduled for October 2023 to assess the effectiveness of 22 his HCV treatment. (Id. ¶ 64.) 23 VI. Discussion 24 A. Eighth Amendment Legal Standard 25 To prevail on an Eighth Amendment medical claim, a prisoner must demonstrate 26 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 27 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs 28 to this analysis: an objective prong and a subjective prong. As to the objective prong, a 1 prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citation omitted). 2 Some circumstances showing serious medical needs include “[t]he existence of an injury 3 that a reasonable doctor or patient would find important and worthy of comment or 4 treatment; the presence of a medical condition that significantly affects an individual’s 5 daily activities; or the existence of chronic and substantial pain.” McGuckin v. Smith, 974 6 F.2d 1050, 1059−60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. 7 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 8 As to the subjective prong, a prisoner must show the defendant’s response to his or 9 her need was deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with 10 deliberate indifference if he or she “knows of and disregards an excessive risk to inmate 11 health or safety; the official must both be aware of facts from which the inference could be 12 drawn that a substantial risk of serious harm exists, and he [or she] must also draw the 13 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 14 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 15 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 16 Cir.2002) (internal quotation marks and citation omitted), or when they fail to respond to 17 a prisoner’s pain or possible medical need, Jett, 439 F.3d at 1096. But the deliberate- 18 indifference doctrine is limited; an inadvertent failure to provide adequate medical care or 19 negligence in diagnosing or treating a medical condition does not support an Eighth 20 Amendment claim. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citation 21 omitted); see Estelle, 429 U.S. at 106 (finding negligence does not rise to the level of a 22 constitutional violation). Further, a mere difference in medical opinion does not establish 23 deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled 24 in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). 25 B. Analysis 26 Defendants do not argue Plaintiff did not have a serious medical need, and the 27 undisputed evidence showing Plaintiff was diagnosed with HCV and his condition required 28 regular chronic care visits, individualized medical assessments, laboratory tests, and 1 eventual DAA treatment is sufficient to show Plaintiff’s HCV was worthy of comment and 2 treatment and therefore constituted a serious medical need. McGuckin, 974 F.2d at 3 1059−60. Accordingly, the Court turns to whether the individual Corizon medical 4 Defendants or Corizon as an entity were deliberately indifferent to Plaintiff’s need. 5 1. Defendants Bell and Alonso 6 The Court already found in its previous summary judgment Order Defendants made 7 an initial showing Defendants Bell and Alonso were not deliberately indifferent to 8 Plaintiff’s HCV. Regarding Bell, the Court found, 9 The medical records and declaration evidence Defendants produced of Plaintiff’s Chronic Care visits show Defendant 10 Bell saw Plaintiff for his HCV four times at regular 6-month 11 intervals over 18 months: on November 1, 2019, April 21, 2020, October 8, 2020, and March 31, 2021. (DSOF ¶¶ 6, 13, 12 17, 20.) Each time, Bell reviewed Plaintiff’s labs and fibrosure 13 test results, which showed Plaintiff had F0 to F1 fibrosis, meaning little to no liver damage; noted Plaintiff’s lack of 14 active symptoms; and scheduled follow up labs to continue 15 monitoring the progression of Plaintiff’s HCV. On this record, Defendants have met their initial burden of showing Bell did 16 not know of and deliberately disregard any serious medical 17 need for Plaintiff to receive HCV treatment. 18 (Doc. 90 at 15−16.) 19 The Court also found, however, Plaintiff’s verbal and written complaints about his 20 GI issues called into question “the entries in Plaintiff’s Chronic Care records and Defendant 21 Bell’s avowals in her declaration stating Plaintiff consistently denied any active 22 symptoms,” and the medical record evidence showing Bell ordered a hemoccult suggested 23 Bell was aware of Plaintiff’s HNRs and verbal complaints of bloody stools. (Id. at 16−17.) 24 The Court also found genuine issues of material fact about whether these symptoms were 25 related to Plaintiff’s untreated HCV, and, absent any evidence Plaintiff received follow-up 26 testing or treatment for these symptoms, there was “a genuine issue of material fact . . . 27 whether Defendant Bell knew of and deliberately disregarded” Plaintiff’s need for HCV 28 treatment. (Id. at 17.) The Court similarly concluded as to Defendant Alonso Plaintiff’s 1 consistent verbal and written abdominal complaints created genuine issues of material fact 2 “whether these symptoms were connected to Plaintiff’s untreated HCV and whether 3 Alonso’s failure to address them was deliberately indifferent to Plaintiff’s serious medical 4 needs, causing Plaintiff to undergo unnecessary pain and suffering while he awaited HCV 5 treatment.” (Id. at 19.) 6 Defendants now argue there is no evidence Plaintiff’s active symptoms, “including 7 abdominal pain and bloody stools, were indicative of his worsening condition due to 8 Hepatitis C.” (Doc. 98 at 17.) Moreover, Defendants contend Plaintiff’s medical 9 providers, including Defendants Bell and Alonso, properly referred Plaintiff to a specialist 10 for those issues. (Id.) Defendants point to the evidence showing outside specialist Dr. 11 Khan diagnosed Plaintiff with gastroesophageal reflux disease, internal hemorrhoids, 12 solitary rectal ulcers, and a hiatal hernia, not complications of HCV. (Id.) Defendants have 13 also now produced Bell’s and Alonso’s professional medical opinions concluding 14 Plaintiff’s reported symptoms were not caused by his untreated HCV or suggestive of a 15 need for emergent HCV treatment. Bell opines Plaintiff’s complaints of bloody stools and 16 abdominal pain were caused by the GI conditions Dr. Khan diagnosed in 2021 and 2022 17 and not by Plaintiff’s HCV because, during the time Plaintiff was under Bell’s care for his 18 HCV, Plaintiff’s fibrosis score never progressed beyond F1 (minimal fibrosis). (DSOF 19 ¶ 79.) Alonso also opines based on Plaintiff’s low fibrosis scores Plaintiff’s GI issues were 20 caused by something other than his HCV. (Id. ¶ 89.) 21 Finally, Defendants argue, even if Plaintiff could show Bell and Alonso were 22 deliberately indifferent to Plaintiff’s serious medical needs by denying him HCV treatment, 23 Plaintiff’s claims against them nonetheless fail because Plaintiff cannot show he suffered 24 harm from his untreated HCV. (Doc. 98 at 18.) 25 On the updated record now before the Court, Defendants have met their initial 26 burden of showing Defendants Bell and Alonso were not deliberately indifferent to any 27 known serious medical needs of Plaintiff. Although the Court previously found questions 28 of fact concerning whether Plaintiff’s abdominal complaints were due to his untreated 1 HCV and whether Bell’s and Alonso’s denial of HCV treatment was deliberately 2 indifferent to these serious medical needs, Defendants have since produced these 3 providers’ professional medical opinions concluding these symptoms were unrelated to 4 Plaintiff’s HCV as well as medical record evidence showing off-site specialist Dr. Khan 5 attributed these symptoms to other medical issues, including gastroesophageal reflux 6 disease and internal hemorrhoids. The evidence also shows, apart from ordering extra bed 7 linens to accommodate Plaintiff’s reported loss of bowel control, a hemoccult to assess his 8 reports of bloody stools, and a colonoscopy in response to Dr. Khan’s findings, Bell and 9 Alonso were not directly involved in Plaintiff’s medical care for these issues, which 10 included specialist consultations with Dr. Khan, a colonoscopy, an endoscopy, 11 medications, and follow-up appointments with Centurion nursing staff and other medical 12 providers. Consequently, even if Plaintiff could show he did not receive proper medical 13 treatment for these issues, any deficiencies in this care cannot be attributed to Bell and 14 Alonso. The inquiry into a defendant’s liability for deliberate indifference “must be 15 individualized and focus on the duties and responsibilities of each individual defendant 16 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 17 Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see Rizzo v. Goode, 423 U.S. 362, 370–71, 18 375–77 (1976). 19 Plaintiff fails to produce any medical evidence to create a genuine issue of material 20 fact regarding whether his GI symptoms were caused by his HCV, and by failing to provide 21 HCV treatment, whether Defendants Bell and Alonso were deliberately indifferent to his 22 serious medical needs. Even if Plaintiff could show his reported symptoms were caused 23 by his untreated HCV, this would not demonstrate Bell and Alonso were deliberately 24 indifferent because the evidence shows these providers reasonably relied on their medical 25 knowledge, training, and experience, together with their review of Plaintiff’s fibrosis 26 scores, to determine otherwise. Although Plaintiff disputes these providers’ conclusions, 27 a mere difference in medical opinion does not establish deliberate indifference. Jackson, 28 90 F.3d at 332. Moreover, even if Bell and Alonso mistakenly concluded Plaintiff did not 1 need emergent HCV treatment to treat his reported symptoms, this would, at most, show 2 negligence, not that they knew of and deliberately disregarded Plaintiff’s serious medical 3 needs. Wilhelm, 680 F.3d at 1122 (noting negligence in diagnosing or treating a medical 4 condition does not support an Eighth Amendment claim). 5 Alternatively, even if Plaintiff could show denying him HCV treatment was 6 deliberately indifferent, he fails to create a genuine issue of material fact regarding whether 7 the lack of more immediate HCV treatment caused him harm. The Court previously noted 8 needless pain and suffering is sufficient harm to support an Eighth Amendment claim. 9 (Doc. 90 at 17 (citing McGuckin, 974 F.2d at 1060 (holding pain and anguish suffered by 10 prisoner constituted harm sufficient to support a § 1983 action)).) Here, though, the 11 medical evidence shows Plaintiff’s pain and suffering were caused by diagnosed GI 12 conditions and a hiatal hernia, not his HCV, and Plaintiff received regular medical care for 13 these conditions, including off-site specialist appointments, diagnostic procedures, and 14 medications. Even if Plaintiff’s reported symptoms were not ultimately resolved during 15 the time of this action, Plaintiff cannot show his pain and suffering were due to deliberately 16 indifferent care by Centurion medical staff, including Defendants Bell and Alonso. 17 Plaintiff’s fibrosis scores, which remained at F0−F1 over the time of this action, also do 18 not show Plaintiff suffered increased liver damage due to his untreated HCV. 19 In summary, Defendants have met their initial burden of showing Defendants Bell 20 and Alonso were not deliberately indifferent to Plaintiff’s serious medical needs and did 21 not cause him injury, and Plaintiff fails to create a genuine issue for trial as to these required 22 showings. The Court will grant summary judgment in favor of Defendants Bell and Alonso 23 and dismiss these Defendants from this action. 24 2. Centurion 25 Defendants did not include Defendant Centurion in their Successive Motion for 26 Summary Judgment. (Doc. 98 at 1.) The Court will nonetheless sua sponte grant summary 27 judgment to Centurion because Plaintiff’s inability to show he received deliberately 28 indifferent medical care for his HCV under Centurion’s HCV treatment policies is fatal to 1 his Monell claim against Centurion. See United States v. Grayson, 879 F.2d 620, 625 (9th 2 Cir. 1989) (“A district court may grant summary judgment without notice if the losing party 3 has had a full and fair opportunity to ventilate the issues involved in the motion.” (internal 4 quotation marks and citation omitted)). 5 To maintain a claim against Defendant Centurion as a private entity fulfilling a 6 public function, Plaintiff must meet the test articulated in Monell v. New York Department 7 of Social Services, 436 U.S. 658, 690–94 (1978). See Tsao v. Desert Palace, Inc., 698 F.3d 8 1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state 9 law). Accordingly, Centurion can only be held liable under § 1983 for its employees’ civil 10 rights deprivations if Plaintiff can show an official policy or custom caused the 11 constitutional violation. Monell, 436 U.S. at 694. To make this showing, Plaintiff must 12 demonstrate the following: (1) he was deprived of a constitutional right; (2) Centurion had 13 a policy or custom; (3) the policy or custom amounted to deliberate indifference to 14 Plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind 15 the constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 16 F.3d 1101, 1110–11 (9th Cir. 2001). 17 As discussed, Plaintiff fails to produce sufficient evidence to create a triable issue 18 of fact regarding whether Defendants Bell and Alonso or any other Centurion medical staff 19 were deliberately indifferent to Plaintiff’s serious medical needs or whether their failure to 20 treat Plaintiff’s HCV caused Plaintiff harm. Absent any such evidence, Plaintiff cannot 21 show he suffered a constitutional violation or Centurion’s alleged HCV treatment policies 22 were deliberately indifferent and the moving force behind his alleged injuries. The Court 23 will grant summary judgment in favor of the remaining Defendant, Centurion, and 24 terminate this action. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED: 2 (1) Defendants’ Successive Motion for Summary Judgment (Doc. 98) is 3 GRANTED; Plaintiff's remaining Eighth Amendment medical care claims against 4| Defendants Bell, Alonso, and Centurion are DISMISSED with prejudice. 5 (2) The action is TERMINATED. The Clerk of Court must enter judgment 6| accordingly. 7 Dated this 30th day of September, 2024. 8 9 / 0 feel i vite States District Fudge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28