Griswold v. Ryan et al

Filing 6

ORDER (Service Packet): ORDERED that Plaintiff's 2 Application to Proceed In Forma Pauperis is granted. Plaintiff must pay the $350.00 filing fee. Defendant Doe is dismissed without prejudice. Defendants Ryan, Valenzuela, Merchant, Eche verria, Ende, and Lewis must answer Count I. The Clerk of Court must send Plaintiff a service packet including the 1 Complaint, this Order and both summons and request for waiver forms for the above Defendants. Plaintiff must complete and return th e service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Bridget S. Bade for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge David G Campbell on 3/27/2013. (LFIG)

1
2

SC

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
David E. Griswold,
9
Plaintiff,
10
vs.
11
Charles L. Ryan, et al.,
12
Defendants.
13

)
)
)
)
)
)
)
)
)
)

No. CV 13-0228-PHX-DGC (BSB)
ORDER

14

Plaintiff David E. Griswold, who is confined in the Arizona State Prison Complex-

15

Lewis, Barchey Unit, in Buckeye, Arizona, has filed a pro se civil rights Complaint pursuant

16

to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. The Court will order

17

Defendants Ryan, Valenzuela, Merchant, Echeverria, Ende, and Lewis to answer Count I of

18

the Complaint and will dismiss the remaining Defendant without prejudice.

19

I.

Application to Proceed In Forma Pauperis and Filing Fee

20

Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

21

§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

22

The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

23

fee will be collected monthly in payments of 20% of the previous month’s income each time

24

the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

25

separate Order requiring the appropriate government agency to collect and forward the fees

26

according to the statutory formula.

27

II.

28
TERMPSREF

Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against

1

a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

2

§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

3

claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

4

be granted, or that seek monetary relief from a defendant who is immune from such relief.

5

28 U.S.C. § 1915A(b)(1), (2).

6

A pleading must contain a “short and plain statement of the claim showing that the

7

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

8

demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

9

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

10

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

11

statements, do not suffice.” Id.

12

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

13

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

14

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

15

that allows the court to draw the reasonable inference that the defendant is liable for the

16

misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

17

relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

18

experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

19

allegations may be consistent with a constitutional claim, a court must assess whether there

20

are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

21

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

22

must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

23

Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

24

than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

25

94 (2007) (per curiam)).

26

III.

Complaint

27
28
TERMPSREF

Plaintiff alleges one count for denial of constitutionally-adequate medical care.
Plaintiff sues the following current or former employees of the Arizona Department of
-2-

1

Corrections (ADC)1: Director Charles L. Ryan; Facility Health Administrator (FHA) Helena

2

Valenzuela; Physicians Kevin Merchant, Carmel Echeverria, Unknown Ende, Unknown

3

Lewis, and John Doe. Merchant, Echeverria, and Ende worked at the Lewis Complex.

4

Valenzuela, Lewis, and Doe worked at the Tucson Complex. Plaintiff seeks injunctive,

5

compensatory, and punitive relief.

6

IV.

Failure to State a Claim

7

To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

8

conduct about which he complains was committed by a person acting under the color of state

9

law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

10

Outlander, 879 F.2d 583, 587 (9th Cir. 1989). Negligence is not sufficient to state a claim

11

under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986). In addition, a plaintiff

12

must allege that he suffered a specific injury as a result of the conduct of a particular

13

defendant and he must allege an affirmative link between the injury and the conduct of that

14

defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

15

Plaintiff alleges a single claim for constitutionally-deficient medical care. Not every

16

claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth

17

or Fourteenth Amendment. To state a § 1983 medical claim, a plaintiff must show that the

18

defendants acted with “deliberate indifference to serious medical needs.” Jett v. Penner, 439

19

F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A

20

plaintiff must show (1) a “serious medical need” by demonstrating that failure to treat the

21

condition could result in further significant injury or the unnecessary and wanton infliction

22

of pain and (2) the defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096

23

(quotations omitted).

24

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

25

1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know

26
27
28
TERMPSREF

1

Plaintiff alleges Defendants either worked for ADC or Wexford Health Sources,
Inc., which contracted with ADC to provide medical care to inmates between July 1, 2012
and March 3, 2013.
-3-

1

of and disregard an excessive risk to inmate health; “the official must both be aware of facts

2

from which the inference could be drawn that a substantial risk of serious harm exists, and

3

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate

4

indifference in the medical context may be shown by a purposeful act or failure to respond

5

to a prisoner’s pain or possible medical need and harm caused by the indifference. Jett, 439

6

F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally

7

denies, delays, or interferes with medical treatment or by the way prison doctors respond to

8

the prisoner’s medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

9

Deliberate indifference is a higher standard than negligence or lack of ordinary due

10

care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross

11

negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr., 220

12

F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458,

13

460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice”

14

do not support a claim under § 1983). “A difference of opinion does not amount to deliberate

15

indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242

16

(9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim

17

against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State

18

Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial.

19

The action must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429

20

U.S. at 105.

21

Plaintiff alleges the following facts: in 2010, while he was housed at the Tucson

22

Complex, Plaintiff was diagnosed with Hepatitis C (HCV). During a prior incarceration,

23

Plaintiff had tested positive for HCV and he was subject to ADC’s monitoring protocol.

24

While housed in the Tucson Complex, Plaintiff also tested positive for tuberculosis (TB).

25

After discussions with Defendant Doe, “it was determined” that Plaintiff should not be

26

treated with “INH” medication for his TB because INH was very toxic to the liver.2 Doe told

27
28
TERMPSREF

2

INH is one medication that can be used to treat latent TB or TB disease. See
http://www.cdc.gov/tb/topic/ treatment/default.htm (last visited Mar. 20, 2013).
-4-

1

Plaintiff that based upon his HCV, he should never take INH and Doe stated as much in

2

Plaintiff’s prisoner health file.

3

After being diagnosed with HCV, Plaintiff submitted repeated Health Needs Requests

4

(HNRs) seeking diagnostic testing, including a CT scan, biopsy, monitoring protocols, and

5

anti-viral treatment protocols. According to Plaintiff, state statutes and prison policies

6

specify that health care providers are responsible for insuring and authorizing testing,

7

monitoring, and treatment.3

8

On February 18, 2011, Plaintiff was prescribed INH and given direct orders by ADC

9

security staff and Dr. Lewis to begin taking INH. Plaintiff was threatened with disciplinary

10

sanctions and placement in isolation if he refused. Plaintiff expressed concerns about

11

potential toxic liver damage from taking INH when he had HCV. Lewis noted Plaintiff’s

12

concern, but told Plaintiff that ADC protocol required all inmates with positive exposure to

13

TB to be placed on and complete INH protocols. Lewis further told Plaintiff that in his

14

professional opinion, the potential risk from INH protocols was far greater than any possible

15

benefit, but ADC policy required that Plaintiff complete the INH protocol or be placed in

16

medical isolation for the duration of his confinement.

17

Plaintiff contends that while ADC policy was specific about protocols for positive TB

18

skin tests, the policy also gave Lewis the authority to override ADC medical policy in order

19

to authorize and provide for the health, care, and safety of all inmate patients under his care.

20

Plaintiff contends that Lewis demonstrated knowledge of the ADC policy but chose to

21

subject Plaintiff to the risks of INH protocols for someone with HCV.

22

Plaintiff filed a grievance seeking administrative review of being compelled to

23

complete INH protocols “while ignoring HCV diagnostic testing, monitoring, and treatment

24

protocols.” (Doc. 1 at 7.) Valenzuela acknowledged ADC’s policy regarding HCV, but

25

“failed to complete proper review and correct error.” (Id.) Plaintiff contends that she thereby

26

failed or refused to comply with ADC policy.

27
28
3

TERMPSREF

Plaintiff fails to identify the statutes to which he refers.
-5-

1

On June 21, 2011, Ryan investigated Plaintiff’s grievance appeal.

Ryan

2

acknowledged the policies concerning diagnostic testing, treatment, and monitoring protocols

3

for HCV and TB. He also acknowledged the potential toxic effects of INH on the liver and

4

the need to monitor the situation. Ryan assured Plaintiff that diagnostic testing, treatment,

5

and monitoring protocols had been or would be observed despite the obvious failures to do

6

so.

7

Plaintiff contends that the medical Defendants failed or refused to address his serious

8

medical needs by failing to provide adequate diagnostic testing, treatment, and monitoring

9

of both his TB and HCV, including assessment of the extent of any liver damage from

10

administration of INH.

11

In 2012, Plaintiff was transferred to the Lewis Complex. Upon his arrival, Plaintiff

12

submitted numerous HNRs seeking a review of his medical history and authorization for

13

diagnostic testing, treatment, and monitoring of his HCV and TB. Through consultation,

14

review of his medical history, or recommendations regarding his history, Plaintiff had direct

15

contact with Ende, Merchant, and Echeverria. Ende, Merchant, and Echeverria conferred

16

with Plaintiff as a patient concerning HCV-related complications, including pain, but at no

17

point authorized adequate medical testing, monitoring, or treatment of Plaintiff’s HCV

18

complications. According to Plaintiff, Ryan also confirmed that ADC administration failed

19

to properly address his initial grievance. Ryan indicated to Plaintiff that he had investigated

20

and reviewed Plaintiff’s grievance and concluded that no further action was required.

21

Plaintiff contends that Ryan has thereby tacitly condoned the failure of ADC medical

22

professionals to comply with their obligations as to his medical conditions.

23

Plaintiff alleges that Doe advised against Plaintiff taking INH for his TB due to his

24

positive HCV test because INH was very toxic to the liver. These allegations do not support

25

that Doe in any way acted with deliberate indifference to Plaintiff’s serious medical needs.

26

Accordingly, Plaintiff fails to state a claim against Doe and he will be dismissed.

27

V.

28
TERMPSREF

Claim for Which an Answer Will be Required
Plaintiff alleges that Defendants Ryan, Valenzuela, Merchant, Echeverria, Ende, and
-6-

1

Lewis have failed or refused to monitor and treat his HCV and TB or have endorsed the

2

failures of the medical Defendants to monitor and treat his medical conditions. Plaintiff

3

sufficiently states a claim against these Defendants and they will be required to respond to

4

the Complaint.

5

VI.

Warnings

6

A.

7

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

8

Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

9

the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result

10

Release

in dismissal of this action.

11

B.

Address Changes

12

Plaintiff must file and serve a notice of a change of address in accordance with Rule

13

83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

14

relief with a notice of change of address. Failure to comply may result in dismissal of this

15

action.

16

C.

Copies

17

Plaintiff must submit an additional copy of every filing for use by the Court. See

18

LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

19

to Plaintiff.

20

D.

Possible Dismissal

21

If Plaintiff fails to timely comply with every provision of this Order, including these

22

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

23

1260-61 (a district court may dismiss an action for failure to comply with any order of the

24

Court).

25

IT IS ORDERED:

26

(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 2.)

27

(2)

As required by the accompanying Order to the appropriate government agency,

28
TERMPSREF

Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
-7-

1

(3)

Defendant Doe is dismissed without prejudice.

2

(4)

Defendants Ryan, Valenzuela, Merchant, Echeverria, Ende, and Lewis must

3

answer Count I.

4

(5)

The Clerk of Court must send Plaintiff a service packet including the

5

Complaint (Doc. 1), this Order, and both summons and request for waiver forms for

6

Defendants Ryan, Valenzuela, Merchant, Echeverria, Ende, and Lewis.

7

(6)

Plaintiff must complete4 and return the service packet to the Clerk of Court

8

within 21 days of the date of filing of this Order. The United States Marshal will not provide

9

service of process if Plaintiff fails to comply with this Order.

10

(7)

If Plaintiff does not either obtain a waiver of service of the summons or

11

complete service of the Summons and Complaint on a Defendant within 120 days of the

12

filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the

13

action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv

14

16.2(b)(2)(B)(i).

15

(8)

16
17

The United States Marshal must retain the Summons, a copy of the Complaint,

and a copy of this Order for future use.
(9)

The United States Marshal must notify Defendants of the commencement of

18

this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal

19

Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure. The

20

notice to Defendants must include a copy of this Order. The Marshal must immediately

21

file signed waivers of service of the summons. If a waiver of service of summons is

22

returned as undeliverable or is not returned by a Defendant within 30 days from the

23

date the request for waiver was sent by the Marshal, the Marshal must:
(a) personally serve copies of the Summons, Complaint, and this Order upon

24
25

Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and

26
4

27
28
TERMPSREF

If a Defendant is an officer or employee of the Arizona Department of Corrections,
Plaintiff must list the address of the specific institution where the officer or employee works.
Service cannot be effected on an officer or employee at the Central Office of the Arizona
Department of Corrections unless the officer or employee works there.
-8-

1

(b) within 10 days after personal service is effected, file the return of service

2

for Defendant, along with evidence of the attempt to secure a waiver of service of the

3

summons and of the costs subsequently incurred in effecting service upon Defendant.

4

The costs of service must be enumerated on the return of service form (USM-285) and

5

must include the costs incurred by the Marshal for photocopying additional copies of

6

the Summons, Complaint, or this Order and for preparing new process receipt and

7

return forms (USM-285), if required. Costs of service will be taxed against the

8

personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

9

Procedure, unless otherwise ordered by the Court.

10
11
12

(10)

A Defendant who agrees to waive service of the Summons and Complaint

must return the signed waiver forms to the United States Marshal, not the Plaintiff.
(11)

Defendant must answer the Complaint or otherwise respond by appropriate

13

motion within the time provided by the applicable provisions of Rule 12(a) of the Federal

14

Rules of Civil Procedure.

15

(12)

Any answer or response must state the specific Defendant by name on whose

16

behalf it is filed. The Court may strike any answer, response, or other motion or paper that

17

does not identify the specific Defendant by name on whose behalf it is filed.

18

(13)

This matter is referred to Magistrate Judge Bridget S. Bade pursuant to Rules

19

72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized

20

under 28 U.S.C. § 636(b)(1).

21

DATED this 27th day of March, 2013.

22
23
24
25
26
27
28
TERMPSREF

-9-