Houser v. Grant-Ellis et al

Filing 65

ORDER that the reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 52) and Plaintiff's Motion for Appointment of Counsel (Doc. 64). Granting 52 Defendants' Motion for Summary Judgment. Denying as moot 64 Plaitniff's Motion to Appoint Counsel. Clerk of Court must terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 5/27/11.(DMT)

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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Galen Lloyd Houser, 10 Plaintiff, 11 vs. 12 Caron Grant-Ellis, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-0937-PHX-GMS (ECV) ORDER 16 Plaintiff Galen Lloyd Houser brought this civil rights action under 42 U.S.C. § 1983 17 against Nurse Caron Grant-Ellis and Physician’s Assistant Nick Salyer, medical personnel 18 at the Arizona Department of Corrections (ADC) Florence Unit Complex (Doc. 9).1 Before 19 the Court are Defendants’ Motion for Summary Judgment (Doc. 52) and Plaintiff’s Motion 20 for Appointment of Counsel (Doc. 64). 21 The Court will grant Defendants’ motion, deny Plaintiff’s motion as moot, and 22 terminate the action. 23 I. Background 24 In his First Amended Complaint, Plaintiff alleged that he suffers from severe 25 psoraisis, and that upon his arrival at the Florence South Unit following hospitalization for 26 his condition, he was supposed to be treated pursuant to a specific treatment plan that 27 28 1 Upon screening, the Court dismissed Baird and McMorran as Defendants (Doc. 10). 1 required medications, blood tests, and constant monitoring (Doc. 9 at 4).2 Plaintiff claimed 2 that Defendants failed to provide the prescribed treatment plan or respond to repeated appeals 3 for treatment. Plaintiff alleged that as a result, he suffered painful infections and was 4 rehospitalized (id.). 5 Defendants now move for summary judgment on the grounds that (1) neither 6 Defendant was deliberately indifferent to Plaintiff’s medical needs, (2) Plaintiff did not show 7 a substantial injury, (3) the Eleventh Amendment bars Plaintiff’s official-capacity claims, and 8 (4) Plaintiff’s punitive damages claim is unsupported (Doc. 52). 9 Defendants’ motion (Doc. 56). 10 II. Plaintiff opposes Legal Standards 11 A. Summary Judgment 12 A court must grant summary judgment “if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 14 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under 15 summary judgment practice, the movant bears the initial responsibility of presenting the basis 16 for its motion and identifying those portions of the record, together with affidavits, that it 17 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. 18 at 323. 19 If the movant meets its initial responsibility, the burden then shifts to the nonmovant 20 to demonstrate the existence of a factual dispute and that the fact in contention is material, 21 i.e., a fact that might affect the outcome of the suit under the governing law, and that the 22 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 23 the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986) ; see Triton 24 Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need 25 not establish a material issue of fact conclusively in its favor, First Nat’l Bank of Ariz. v. 26 Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific 27 28 2 Plaintiff is currently housed in the Arizona State Prison Complex-Winchester Unit in Tucson, Arizona (Doc. 18). -2- 1 facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. 2 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 3 56(c)(1). 4 At summary judgment, the judge’s function is not to weigh the evidence and 5 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 6 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence, and draw all 7 inferences in the nonmovant’s favor. Id. at 255. 8 B. 9 To prevail on an Eighth Amendment medical care claim, a prisoner must demonstrate 10 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th 11 Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs to the 12 deliberate-indifference analysis. First, a prisoner must show a “serious medical need.” Jett, 13 439 F.3d at 1096 (citations omitted). A “‘serious’ medical need exists if the failure to treat 14 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 15 wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 16 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 17 1997) (en banc) (internal citation omitted). Examples of a serious medical need include 18 “[t]he existence of an injury that a reasonable doctor or patient would find important and 19 worthy of comment or treatment; the presence of a medical condition that significantly 20 affects an individual’s daily activities; or the existence of chronic and substantial pain.” 21 McGuckin, 974 F.2d at 1059-60. 22 23 24 25 26 27 28 Eighth Amendment Second, a prisoner must show that the defendant’s response to that need was deliberately indifferent. Jett, 439 F.3d at 1096. This second prong is met if the prisoner demonstrates (1) a purposeful act or failure to respond to a prisoner’s medical need and (2) harm caused by the indifference. Id. Prison officials are deliberately indifferent to a prisoner’s serious medical needs if they deny, delay, or intentionally interfere with medical treatment. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). But a delay in providing medical treatment does not constitute an Eighth Amendment violation unless the -3- 1 delay was harmful. Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (citing Shapley 2 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam)). 3 III. Facts 4 With their summary judgment briefing, the parties each submit an extensive, separate 5 Statement of Facts, which, together, are supported by approximately 400 pages of exhibits, 6 including numerous Health Needs Requests (HNRs) seeking prescription refills and 7 appointments with physicians, who are referred to as health care providers (HCP);3 medical 8 records, and grievance documents (Doc. 53, Defs.’ Statement of Facts (DSOF); Doc. 57, Pl.’s 9 Statement of Facts (PSOF)). The parties do not dispute many of the factual assertions, which 10 document in great detail Plaintiff’s healthcare from 2006-2009 (id.). 11 A. 12 The relevant undisputed factual assertions are summarized as follows: 13 Psoriasis is a chronic, non-curable skin condition that causes rapid skin cell 14 reproduction resulting in red, dry patches of thickened skin (DSOF ¶ 4; PSOF ¶ 4). Psoriasis 15 treatments attempt to interrupt the cycle that causes an increased production of skin cells, 16 thereby reducing inflammation and plaque formation and smoothing the skin. Treatment 17 usually involves a combination of topical medication—such as corticosteroids—and oral 18 medications—commonly methotrexate (DSOF ¶ 5; PSOF ¶ 5). Side effects of long-term 19 methotrexate treatment can include liver damage, cancer, and a reduced white blood cell 20 count (DSOF ¶ 6; PSOF ¶ 6). Regular blood tests are taken to ensure that the drug is safely 21 processed by the liver and blood cells (id.). 22 23 24 25 26 Undisputed Facts At the ASPC-Florence South Unit, Salyer was Plaintiff’s primary HCP from December 21, 2006 through October 23, 2009, at which time Plaintiff was transferred to another prison complex (DSOF ¶ 16; PSOF ¶ 16). From 2005 until July 2009, Grant-Ellis was assigned to ASPC-Florence and worked as the Correctional Registered Nurse Supervisor (DSOF ¶ 2; PSOF ¶ 2). 27 28 3 Physician’s assistants—like Salyer—and nurse practitioners are also considered HCPs (Doc. 53, Ex. B, Grant-Ellis Decl. ¶ 2). -4- 1 With respect to medical care at the South Unit, when an inmate needs non-emergency 2 medical care or treatment, he must fill out an HNR, which is reviewed by the nursing staff, 3 who then either (1) respond as appropriate, (2) make an appointment to the nurses’ or 4 doctors’ schedule, (3) refer the HNR for a chart review, or (4) refer the HNR for review by 5 an HCP (DSOF ¶ 7; PSOF ¶ 7). 6 When an HCP prescribes a medication, the HCP indicates in his or her notes how 7 many refills are needed, if any (DSOF ¶ 12; PSOF ¶ 12 (in part)4). Then, a nurse faxes the 8 note to the pharmacy, which is responsible for filling the prescription (DSOF ¶ 12). The 9 pharmacy sends the filled prescription back to the medical unit, and the nursing staff 10 distributes it to the inmate (id.). If an inmate needs a refill, he must submit an HNR to the 11 pharmacy (id.). If the inmate needs more medication but does not have a refill, he must 12 submit an HNR to request to see an HCP, who may then reorder the medication (id.). 13 Plaintiff arrived at the South Unit on December 21, 2006 (Doc. 53, Ex. A at 1 (ADC 14 Inmate Record)). Salyer examined Plaintiff on December 28, 2006; Salyer noted that 15 Plaintiff had been hospitalized for a psoriasis flare prior to his incarceration, but he was now 16 okay (DSOF ¶ 18; PSOF ¶ 18 (in part)). Plaintiff was already taking methotrexate in 17 subsequently lower doses as well as prednisone—a synthetic corticosteroid drug (id.). Salyer 18 prescribed methotrexate weekly in subsequently lower doses for four weeks (id.). He also 19 prescribed psoriasis shampoo; Lidex cream (a topical adrenocortical steroid); triamcinolone 20 (TAC) cream (a topical steroid); Carmol lotion for six months; Pepcid; Tums; extra-strength 21 Tylenol; and Phenergan (id.). Salyer further ordered that blood tests be done in four to six 22 23 24 weeks (id.). During the next three years, Salyer continued to prescribe these medications to Plaintiff in varying doses, and at different times he also prescribed ointments, Flexeril, 25 26 27 28 4 In his PSOF, Plaintiff states that he disagrees with DSOF ¶ 12 (PSOF ¶ 12). But he does not explicitly dispute the prison’s established process for prescribing, filling, and refilling prescriptions. Instead, Plaintiff asserts that if there is a problem related to the pharmacy, and prison medical staff are aware of the problem but take no corrective action, it constitutes a denial of treatment (id.). -5- 1 Kenalog (a steroid injection), Medrol Dosepack (an oral steroid), prednisone, antibiotics, 2 Prilosec, Meclomen (an anti-inflammatory drug), Inderal (a beta-blocker), and Cafergot (for 3 migraines) (see DSOF ¶¶ 23, 29, 37, 48, 54, 61, 69, 80; PSOF ¶¶ 23 (in part), 29, 37 (in part), 4 48 (in part), 54, 61, 69, 80 (in part)). 5 Plaintiff regularly submitted HNRs requesting prescription refills for these various 6 medications; he averaged 2-5 HNRs for refills per month (DSOF ¶¶ 20, 24, 30, 39, 44, 47, 7 59, 63, 65, 70, 75, 79, 81; PSOF ¶¶ 20, 24, 30, 39, 44, 47, 59, 63, 65, 70, 75 (in part), 79, 81 8 (in part)). Plaintiff also regularly submitted HNRs requesting to see a physician about 9 renewing medications (DSOF ¶¶ 26, 33, 73, 85; PSOF ¶¶ 26 (in part), 33, 73, 85); because 10 his medications were not being filled as ordered (DSOF ¶ 22; PSOF ¶ 22); he was not getting 11 refills (DSOF ¶¶ 38, 42, 44, 88, 90; PSOF ¶¶ 38, 42, 44, 88, 90); and he was not receiving 12 blood tests as ordered (DSOF ¶¶ 34, 36 38, 42, 68; PSOF ¶¶ 34, 36, 38, 42, 68 (in part)). 13 On December 27, 2007, Plaintiff was admitted to St. Mary’s Hospital (DSOF ¶ 52; 14 PSOF ¶ 52). He was discharged three days later after treatment for a suspected migraine, 15 abdominal pain, psoriasis, and anemia (id.). 16 B. 17 The parties dispute whether Grant-Ellis was responsible for determining which 18 inmates were approved for the one-day-a-week doctors’ schedule and whether she was aware 19 of the allegedly inadequate supply of medications and treatment for Plaintiff but disregarded 20 the problem (Doc. 56 at 2). They also dispute whether Salyer was aware of the allegedly 21 inadequate supply of medications and treatment for Plaintiff, whether he failed to take any 22 23 24 Disputed Issues corrective action to address the situation or establish a new drug treatment, and whether Salyer maintained Plaintiff’s treatment plan or took any action to address the lack of blood testing (id.). 25 26 27 28 IV. Analysis The Court notes that Defendants make no argument that Plaintiff did not suffer from a serious medical need. See Jett, 439 F.3d at 1096. Indeed, Defendants’ own evidence -6- 1 reflects that Plaintiff’s condition warranted ongoing treatment, including prescription 2 medication and regular blood testing. Thus, the deliberate-indifference analysis turns on 3 whether Grant-Ellis and Salyer were deliberately indifferent to Plaintiff’s serious medical 4 need. 5 A. 6 In her declaration, Grant-Ellis states that as the Correctional Registered Nurse 7 Supervisor, she was responsible for staffing and overseeing subordinate nursing staff and she 8 performed health assessments and triage of patients (Doc. 53, Ex. B, Grant-Ellis Decl. ¶ 2). 9 Her duties included referring inmates to be seen by HCPs; however, she did not actually 10 schedule inmates to be seen by an HCP (id.). But if an inmate had an emergency or a critical 11 medical need, Grant-Ellis could add the inmate to the doctors’ schedule for immediate 12 treatment depending on the severity and urgency of the need (id. ¶ 5). In her position, she 13 did not dictate inmate medical care, order lab work, or prescribe medications (id. ¶ 3). Grant-Ellis 14 As to her involvement with Plaintiff’s care, Grant-Ellis declares that it was limited. 15 She reviewed Plaintiff’s HNR for refills in December 2006, and reviewed his chart a few 16 days later, at which time she sent his prescriptions to the pharmacy and sent the blood work 17 order to the lab (id. ¶¶ 9-10). In August 2007, she noted in Plaintiff’s medical record that he 18 requested a renewal of two medications, and she placed his chart for review by an HCP (id. 19 ¶ 11). Grant-Ellis states that she saw Plaintiff on December 6, 2007, and he complained 20 about his deteriorating psoriasis and improper methotrexate regimen; she referred him for an 21 HCP appointment (id. ¶ 12). Around that same time, in early December 2007, Grant-Ellis 22 23 24 25 26 27 28 responded to a CO III who was investigating an inmate letter/grievance that Plaintiff filed about medication; she told the CO III that she tried to call the pharmacy and got no answer but she would contact the pharmacy again (id. ¶ 13). On December 12, 2007, following Plaintiff’s appointment with an HCP, Grant-Ellis reviewed Plaintiff’s chart and confirmed that his prescriptions were sent to the pharmacy (id. ¶ 14). She also responded to Plaintiff’s inmate letter regarding the lack of TAC for two weeks in late December 2007 (id. ¶ 15). Finally, once in March 2008 and once in February 2009, Grant-Ellis received HNRs from -7- 1 2 3 Plaintiff for refills; she faxed them both to the pharmacy (id. ¶¶ 16-17). Defendants argue that this evidence precludes any finding of deliberate indifference by Grant-Ellis (Doc. 52 at 6). 4 In response, Plaintiff cites to his First Amended Complaint and reiterates his claim 5 against Grant-Ellis; specifically, that he complained to her about his medication 6 approximately 10 times and that she scheduled inmates to see HCPs for emergencies and 7 general care (Doc. 56 at 8-9). According to Plaintiff, the evidence shows that Grant-Ellis 8 controlled who saw physicians and that she scheduled inmates “as it pleased her” (id. at 9). 9 He further contends that she ignored the problems with blood work lab orders and 10 prescription medication (id.). Lastly, he asserts that Grant-Ellis had more than limited 11 contact with Plaintiff; he states that she regularly handled his medical records and 12 prescription orders and failed to correct the problems that she knew existed with his 13 treatment (id.). 14 Plaintiff does not point to any specific documents within the hundreds of pages in the 15 record to support these contentions. On summary judgment, the Court is “not required to 16 comb the record to find some reason to deny a motion for summary judgment.” Carmen v. 17 San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (citation omitted); 18 Fed. R. Civ. P. 56(c)(3); see Huey v. UPS, Inc., 165 F.3d 1084, 1085 (7th Cir. 1999) (“judges 19 need not paw over the files without assistance from the parties”). Nonetheless, in giving 20 Plaintiff the benefit of any doubt, the Court has reviewed the documents Plaintiff submitted 21 and finds that copies of HNRs show that on a number of occasions, he did not receive timely 22 23 24 25 26 refills; that sometimes he had to make repeated written requests for the same medication refills; and that sometimes he went days or weeks without some medications due to delays (see e.g., Doc. 57, Attachs. 11, 13-16). Defendants do not refute Plaintiff’s claims regarding these delays (see Doc. 61), and none of their evidence appears to show when prescription medication was distributed to Plaintiff after it was filled by the pharmacy and sent to the 27 28 -8- 1 medical unit (see Doc. 53, DSOF ¶7).5 2 Plaintiff’s evidence also includes a number of grievance documents. In a February 3 2008 grievance response, the Facility Health Administrator acknowledged Plaintiff’s 4 concerns about staff conduct and demeanor and informed Plaintiff that he will remind staff 5 “of the need to conduct themselves in a professional manner regarding patient care and 6 interactions” (id., Attach. 25). 7 acknowledged that there was a previous mistake with Plaintiff’s medication order (id., 8 Attach. 21). There are a number of documents that specifically refer to Grant-Ellis: (1) in 9 a December 4, 2007 grievance, Plaintiff complained that Grant-Ellis permitted delays and 10 interruptions in the receipt of his prescription medications (id., Attach. 11); (2) in an April 1, 11 2008 grievance document about failure to receive prescribed methotrexate and the lack of 12 blood testing, Plaintiff wrote that he discussed the issue with Grant-Ellis (id., Attach. 14); 13 (3) in a February 2009 grievance, Plaintiff complained that dosages were incorrect and he 14 had not received methotrexate, and he wrote that he discussed these problems with Grant- 15 Ellis (id., Attach. 20); (4) in a March 9, 2009 grievance, Plaintiff wrote that Grant-Ellis 16 confirmed that refill orders were handled improperly (id.); and (5) in a August 31, 2009 17 grievance, Plaintiff wrote that Grant-Ellis failed to order his prescription cream (id., Attach. 18 24). In an April 2008 grievance response, prison staff 19 Viewing this evidence in the light most favorable to Plaintiff, Grant-Ellis was aware 20 or should have been aware of some of the problems Plaintiff encountered when trying to 21 obtain medication refills. But there is no evidence that Grant-Ellis was aware of every 22 23 24 25 26 delayed refill and blood test or that she should have been aware of these problems but refused to acknowledge them. Moreover, the evidence shows that, at least on some occasions, she responded to Plaintiff’s concerns. In response to the December 2007 grievance, Grant-Ellis contacted the pharmacy twice to follow-up on Plaintiff’s refill (id., Attach. 11; Doc. 53, Ex. B, Grant-Ellis Decl. ¶ 13). To the extent that Grant-Ellis may not have timely responded to 27 28 5 The HNR forms show only the date that a request for refill was faxed to the pharmacy (see e.g., Doc. 53, Attachs. 11, 19). -9- 1 some of the other refill delays, Plaintiff proffers no evidence that her conduct was more than 2 negligent, which is not actionable under § 1983. Toguchi v. Chung, 391 F.3d 1051, 1060-61 3 (9th Cir. 2004) (neither medical malpractice nor negligence is sufficient to establish a 4 constitutional violation); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (isolated 5 occurrences of neglect may constitute grounds for malpractice but they do not amount to a 6 constitutional violation). 7 Plaintiff alleges that he suffered infections on his leg due to delays in and interruption 8 of medication treatment, and he claims that had Grant-Ellis taken proper action and had he 9 received medications without interruption, he would not have been hospitalized in late 10 December 2007 (Doc. 56 at 12). But, again, Plaintiff does not cite to any specific evidence 11 in the record to support this claim. The records show that Grant-Ellis saw Plaintiff on 12 December 6, 2007; she states that she referred Plaintiff for an appointment with an HCP, 13 which occurred on December 12, 2007 (Doc. 53, DSOF ¶¶ 45, 48). Plaintiff disputes that 14 the HCP appointment resulted from Grant-Ellis’ referral; he claims that it occurred in 15 response to his grievance (Doc. 57, PSOF ¶¶ 45, 48). Even assuming that Grant-Ellis did not 16 set up the appointment with the HCP, it is immaterial because Plaintiff did see the HCP, and 17 Plaintiff does not dispute that Grant-Ellis reviewed Plaintiff’s chart following that 18 appointment and sent his prescriptions to the pharmacy (Doc. 53, DSOF ¶ 49; Doc. 57, PSOF 19 ¶ 49). Further, the hospital medical records do not include any information suggesting that 20 a disruption of medication or other delays in care led to the need for hospitalization (Doc. 57, 21 Attach. 12). Plaintiff’s sweeping, conclusory allegations that Grant-Ellis’ conduct led to his 22 23 24 25 26 27 28 hospitalization are insufficient to defeat summary judgment. See Rizzo v. Goode, 423 U.S. 362, 371, 377 (1976) (there must be an affirmative link between a defendant’s action and the claimed deprivation); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (to establish deliberate indifference, the prisoner must establish individual fault). On the record before the Court, there is no competent evidence to support Plaintiff’s general allegation that Grant-Ellis “knowingly and deliberately limit[ed] [Plaintiff’s] access to health care and failed to correct problems which she did know existed” (Doc. 56 at 9). - 10 - 1 Carmen, 237 F.3d at 1028 (“a plaintiff’s belief that a defendant acted from an unlawful 2 motive, without evidence supporting that belief, is no more than speculation or unfounded 3 accusation about whether the defendant really did act from an unlawful motive”). The 4 summary judgment determination cannot be based on unsupported allegations and 5 speculation. See id.; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Accordingly, 6 although the Court is troubled by the difficulties that Plaintiff encountered when seeking 7 medication refills, there is no probative evidence to establish a genuine issue of material fact 8 that Grant-Ellis was deliberately indifferent to Plaintiff’s medical needs. 9 B. Salyer 10 During his time as Plaintiff’s primary HCP from December 2006 through October 11 2009, Salyer examined Plaintiff seven times (Doc. 53, DSOF ¶¶ 18, 23, 29, 37, 48, 69, 80; 12 Ex. C, Salyer Decl. ¶ 10).6 The parties dispute whether some of these examinations were set 13 up in response to Plaintiff’s HNRs requesting to see an HCP—as Defendants suggest, or in 14 response to Plaintiff’s initiation of the grievance process regarding his inability to get 15 medical care—as Plaintiff claims (Doc 57, PSOF ¶¶ 23, 37, 48). The Court agrees with 16 Defendants that this dispute is immaterial (see Doc. 61 at 2). And, notably, Plaintiff does not 17 dispute Defendants’ description of the HNR process for inmates seeking medical care nor 18 does he set forth any allegations challenging that process as unconstitutional (see Doc. 53, 19 DSOF ¶ 7; Doc. 57, PSOF ¶ 7). 20 At issue is whether Salyer was aware of the difficulties and repeated delays in 21 obtaining medication refills and blood tests and whether he failed to respond to those 22 23 24 25 problems. First, as to Plaintiff’s blood tests, the evidence shows that there were just a few times when he did not receive regular testing. Defendants submit copies of all the lab reports during the relevant time, which show that through 2007, there were just two gaps between blood tests that exceeded one month; otherwise, Plaintiff had testing done every month (Doc. 26 27 28 6 Those examination dates were December 28, 2006; January 29, 2007; March 22, 2007; September 10, 2007; December 12, 2007; July 9, 2008; and March 2, 2009 (Doc. 53, DSOF ¶¶ 18, 23, 29, 37, 48, 69, 80). - 11 - 1 53, Ex. B, Attachs. 3, 7, 10, 12, 20-21, 23, 27 (gaps were from April 24 to July 21, 2007, and 2 from July 21, to September 15, 2007)). In 2008 and 2009, blood tests were administered 3 approximately every 2-3 months (id., Attachs. 31, 40, 47-48, 53, 57, 63). Salyer declares that 4 he reviewed the lab reports for each of Plaintiff’s blood tests (id., Ex. C, Salyer Decl. ¶¶ 13, 5 17, 20, 23, 28, 31, 34, 43, 50-51, 58-59, 64, 68, 75). Plaintiff does not dispute any of this 6 evidence (see Doc. 57, PSOF ¶¶ 21, 25, 28, 31, 40-41, 43, 55, 62, 71-72, 77, 82, 89). 7 Plaintiff asserts that, at times, to get his blood tests done, he had to initiate the grievance 8 process (Doc. 56 at 1; Doc. 57, Attachs. 10-11, 14, 16, 17). While that may have been the 9 case, Plaintiff nonetheless received regular blood tests to monitor whether methotrexate was 10 affecting his liver or blood cells, and Salyer reviewed those test results. Notably, there is no 11 evidence that Plaintiff experienced liver damage or a reduced white blood cell count in 12 response to the methotrexate treatment and that these symptoms were missed or ignored due 13 to inadequate blood testing. 14 As mentioned, Plaintiff’s evidence reflects that he regularly encountered delays in 15 obtaining refills of his medication. Plaintiff asserts that at each appointment with Salyer, 16 they reviewed the HNRs together, and Plaintiff complained about the delays and inadequate 17 supply of medication. Plaintiff states that Salyer simply rewrote new prescriptions and 18 avoided addressing the medication problem with Grant-Ellis (Doc. 56 at 9-10). Plaintiff 19 further alleges that Salyer responded to Plaintiff’s concerns by stating that he was sorry but 20 he had done his job and “after its out of my office, its not my problem” (id. at 10). 21 22 23 24 25 26 27 28 In his declaration, Salyer acknowledges that when he examined Plaintiff, Plaintiff often expressed his concerns about the pharmacy’s failure to renew prescriptions and that he was not getting some medications (Doc. 53, Ex. C, Salyer Decl. ¶¶ 15, 21, 56, 66). Salyer also refers to all of Plaintiff’s HNRs requesting refills, some of which complain about late refills and/or the lack of medication due to delays (see e.g., id. ¶¶ 14, 22, 29, 37, 62). The inference from this evidence is that Salyer was aware of Plaintiff’s recurrent difficulties in obtaining refills of his prescription medication. There is no indication that Salyer followedup with the pharmacy or confronted Grant-Ellis about the refill delays, as Plaintiff felt he - 12 - 1 should have done. The record appears to support Plaintiff’s claim that in response to his 2 concerns, Salyer often just wrote new prescriptions for medication (id. & Attachs. 5, 9, 45, 3 55). 4 Arguably, Salyer may have been able to do more to address apparent problems with 5 the medication refills; however, there is no evidence that Salyer disregarded Plaintiff’s 6 medical needs. Plaintiff’s medical records reflect that Salyer re-issued prescriptions when 7 necessary; that he monitored Plaintiff’s condition, noting when his psoraisis started to flare 8 (id., Salyer Decl. ¶¶ 15, 66, Attachs. 5, 55) and when it was greatly improved (id. ¶¶ 21, 65, 9 Attachs. 9, 45); and that he adjusted Plaintiff’s treatment accordingly (see id. ¶¶ 15, 66, 21, 10 65). 11 Assuming, arguendo, that Salyer’s failure to do more to address the medication delays 12 raised a question as to deliberate indifference, Plaintiff must still show that harm resulted 13 from Salyer’s failure to act. See Jett, 439 F.3d at 1096. He does not have to demonstrate that 14 his harm was substantial, as Defendants argue (see Doc. 52 at 7). See id.; McGuckin, 974 15 F.2d at 1059 (“a finding that the defendant’s activities resulted in ‘substantial’ harm to the 16 prisoner is not necessary”). But he must establish that the harm suffered was not an “isolated 17 exception” to the overall treatment he received during the time Salyer was treating him. Jett, 18 439 F.3d at 1096 (if harm “is an ‘isolated exception’ to the defendant’s ‘overall treatment of 19 the prisoner [it] ordinarily militates against a finding of deliberate indifference’”) (internal 20 citation omitted). 21 22 23 24 25 26 27 28 Plaintiff’s general allegations that he suffered “pain and suffering” and harm as a result of the medication interruptions and delays are insufficient to establish a genuine issue of material fact (see Doc. 9 at 4; Doc. 56 at 12). See Celotex, 477 U.S. at 324 (nonmovant must “go beyond the pleadings . . . and designate specific facts showing” a material factual dispute). The only specific harm Plaintiff identifies is his hospitalization in December 2007. With respect to his assertion that delays in medication resulted in the hospitalization, the HNRs that Plaintiff filed in the last few months of 2007 show that the only medication he did not consistently receive was TAC cream and that he went three weeks without it in - 13 - 1 November (Doc. 53, Ex. C, Attachs. 19 (HNRs dated Sept. 11, Oct. 20, Nov. 6, 13), 26 (HNR 2 dated Dec. 5)). Plaintiff specifically asserts that when he saw Salyer on December 12, 2007, 3 Salyer responded by prescribing various medications to try to bring the psoriasis under 4 control (Doc. 56 at 12). 5 As discussed above, the hospital medical records do not indicate that a lack of TAC 6 cream or any other medication led to the need for hospitalization (Doc. 57, Attach. 12), and 7 there is no other evidence in the record that suggests any such connection. See Hutchinson 8 v. United States, 838 F.2d 390, 393 (9th Cir. 1988) (in medical cases where the plaintiff 9 contests the type of treatment he received, an expert opinion will almost always be necessary 10 to establish deliberate indifference). Plaintiff’s conclusory allegations cannot create a 11 material factual dispute, and the fact that Salyer responded to Plaintiff’s needs precludes a 12 finding of deliberate indifference. See Farmer, 511 U.S. at 837; Leer, 844 F.2d at 634. The 13 Court will therefore grant Defendants’ Motion for Summary Judgment. 14 15 Defendants’ arguments pertaining to the Eleventh Amendment and damages need not be addressed, and Plaintiff’s motion for counsel will be denied as moot. 16 IT IS ORDERED: 17 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for 18 Summary Judgment (Doc. 52) and Plaintiff’s Motion for Appointment of Counsel (Doc. 64). 19 (2) Defendants’ Motion for Summary Judgment (Doc. 52) is granted. 20 (3) Plaintiff’s Motion for Appointment of Counsel (Doc. 64) is denied as moot. 21 (4) The Clerk of Court must terminate this action and enter judgment accordingly. 22 DATED this 27th day of May, 2011. 23 24 25 26 27 28 - 14 -

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