Ploof #194745 v. Ryan et al

Filing 270

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 241 ). Defendants' Motion for Summary Judgment (Doc. 241 ) is granted, and the action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 2/2/16. (EJA)

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KAB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jonathan Michael Ploof,

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No. CV 13-00946-PHX-DGC (JZB)

Plaintiff,
v.

ORDER

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Jonathan Michael Ploof, who is currently confined in Arizona State

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Prison Complex-Eyman, brought this civil rights case pursuant to 42 U.S.C. § 1983.

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(Doc. 61.) Defendants move for summary judgment, and Plaintiff opposes.1 (Docs. 241,

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259.) The Court will grant the motion and dismiss this action.

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The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d
952, 962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 243.)
Despite the Court’s warnings, Plaintiff disregarded the Federal Rules of Civil Procedure,
this Court’s local rules, and this Court’s August 27, 2015 Order in his Response to
Defendants’ Motion for Summary Judgment.

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Defendants note that Plaintiff failed to follow LRCiv 56.1(b) because, in his
separate statement of facts, he did not controvert any of Defendants’ facts and failed to
support his Response with a corresponding statement of facts. Indeed, while Plaintiff did
file a document he titled “Statement of Facts in Support of the Opposition to Defendants’
Motion for Summary Judgment” (Doc. 260), the document merely contains further
argument in opposition to Defendants’ Motion for Summary Judgment and is not a
separate statement of facts in compliance with the rules and this Court’s August 27, 2013
Order. This document merely circumvents this Court’s rules setting a page limitation for
such responses.

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I.

Background

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On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff

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stated a claim and directed Defendants Ryan, Musson, and Pratt to answer. The Court

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dismissed the remaining claims and Defendants. (Doc. 76.)

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II.

Summary Judgment Standard

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A court must grant summary judgment “if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

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(1986). The movant bears the initial responsibility of presenting the basis for its motion

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and identifying those portions of the record, together with affidavits, if any, that it

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believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at

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323. If the movant meets its initial responsibility, the burden shifts to the nonmovant to

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demonstrate the existence of a factual dispute and that the fact in contention is material (a

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fact that might affect the outcome of the suit under the governing law), and that the

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Likewise, Plaintiff attempts to “incorporate by reference” Docs. 61, 76, 89, 115,
and 231 in his Response to the Motion for Summary Judgment (Doc. 260 at 25.) To the
extent Plaintiff has cited to specific evidence within those documents to support his
Response, the Court has considered that evidence. But Plaintiff’s incorporation by
reference of entire documents without specifying what parts of those documents are
relevant to the issues currently before the Court is inappropriate and will not be
considered by the Court. It is Plaintiff’s obligation to oppose Defendants’ arguments, not
this Court’s obligation to attempt to ascertain what arguments from other motions
Plaintiffs may be trying to make. See Orr v. Bank of America, 285 F.3d 764, 775 (9th
Cir. 2002) (internal quotation omitted) (“Judges need not paw over the files without
assistance from the parties.”); Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929
(9th Cir. 2003) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”)
(citation omitted).
The Court has carefully read Plaintiff’s Response to Defendants’ Motion for
Summary Judgment and his Statement of Facts. Despite Plaintiff’s disregard for this
Court’s rules and Order, the Court will not, as Defendants’ request, consider their facts to
be undisputed and admitted (Doc. 269 at 2). To the extent Plaintiff has failed to cite to
specific evidence to rebut Defendants’ evidence or has failed to support his own
arguments with evidence, however, the Court will assume he cannot do so.
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dispute is genuine (the evidence is such that a reasonable jury could return a verdict for

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the nonmovant). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). The

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nonmovant need not establish a material issue of fact conclusively in its favor, First Nat’l

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Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); but must “come forward

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with specific facts showing that there is a genuine issue for trial,” Matsushita Elec. Indus.

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted).

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At summary judgment, the judge’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. Anderson,

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477 U.S. at 249.

The court must believe the nonmovant’s evidence and draw all

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inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited

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materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

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III.

Plaintiff’s Allegations

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In his Second Amended Complaint, Plaintiff alleged that, while incarcerated at the

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Arizona State Prison Complex-Eyman, Charles Ryan, Director of the Arizona

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Department of Corrections (ADC), Richard Pratt, Division Director and Health Services

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Program Evaluation Administrator, and Matthew A. Musson, the Eyman Complex Health

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Administrator, were deliberately indifferent to Plaintiff’s heart condition because

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(1) healthcare providers in the prison have a practice of failing to provide timely medical

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care, which Defendants failed to correct; (2) Defendants have a policy of requiring unit

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healthcare providers to submit a referral for specialist care to a review board committee,

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which is not for medical reasons and takes months to process, and, thereafter, the referral

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requests are unreasonably denied by the committee; (3) Defendants have failed to create

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an effective tracking and scheduling system for healthcare appointments, there are

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lengthy delays in responding to health needs requests forms and providing necessary

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care, and there are no protocols or timeframes for when Plaintiff is to receive a face-to-

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face medical appointment; and (4) due to these policies, Plaintiff has suffered

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unreasonable delays and refusals, which cause current and future heart failure. (Doc. 61.)

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IV.

Plaintiff’s Medical Condition Prior to Incarceration

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In March 2003, Plaintiff had heart surgery and had a stent placed in the left

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anterior descending artery of his heart. (Doc. 242 ¶ 57.) On March 31, 2003, Plaintiff

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was seen by Dr. Kassel of Tri City Cardiology Consultants, who noted that Plaintiff was

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doing well despite a relatively extensive anterior wall myocardial infarction, and that he

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had a 60% ejection fraction. (Id. ¶ 58.) On April 20, 2003, Plaintiff had a Gated

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Stress/Rest Myocardial Perfusion Scan, which revealed a rest ejection fraction of 50%

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and a post exercise gated SPECT ejection fraction of 47%. (Id. ¶ 59.) Plaintiff entered

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the ADC on April 27, 2005. (Id. ¶ 60.)

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V.

Plaintiff’s Arguments and Evidence2

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On November 15, 2005,3 Plaintiff received a “Communique” from Dr. McRill at

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ASPC-Eyman stating “In response to [the] HNR dated 11/4/05 requesting ‘Heartsmart’

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diet: the only cardiac diet available here is the low fat, low salt diet that you have already

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tried. I will forward your HNR to the FHA’s office.”4 (Doc. 245-3 at 18.)5 On

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The Court notes that Plaintiff describes the content of his medical records
throughout his Response to the Motion for Summary Judgment. Because the Court
considers evidence in determining whether summary judgment is appropriate, the Court
does not set forth Plaintiff’s characterization of his medical records, but rather sets forth
the content of the medical records themselves. Plaintiff’s characterizations are often
either misleading or incomplete.
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Plaintiff asserts that his claims against the current Defendants concern medical
treatment between August 19, 2011 and the present. (Doc. 259 at 9.) The Court
nonetheless sets forth prior medical history to the extent it is cited by Plaintiff. To the
extent Defendants provide additional medical records detailing Plaintiff’s medical
treatment prior to August 19, 2011, the Court does not discuss those records because of
Plaintiff’s assertion that his claims arose on August 19, 2011. See Doc. 242 at ¶¶ 61-93
(setting forth Plaintiff’s medical history prior to August 19, 2011).
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Plaintiff asserts that Dr. McRill “indicated” that his existing diet provided poor
results, Doc. 259 at 7, but that assertion is not supported by Plaintiffs’ cited evidence.
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Unless otherwise specified, all of the Court’s citations refer to the automatically
generated page numbers of the Court’s electronic filing system (CM/ECF), which can be
found at the top of each filed page.
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February 6, 2006, D.O. Strubeck noted that Plaintiff “wants a special diet” and noted that

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he discussed with Plaintiff that he would speak with Central Office about a special diet.

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(Doc. 245-3 at 20.)

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On September 19, 2006, Plaintiff was seen by Dr. Boulet at St. Mary’s Hospital in

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Tucson. (Doc. 231 at 19-20.) The assessment noted by Dr. Boulet was that Plaintiff had

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coronary artery disease with intracoronary stenting of his LAD with a negative

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angiogram performed nine months prior to September 19, 2006; hyperlipidemia with

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significant hypertriglyceridemia; chronic palpitations; and chronic chest pain. (Id.) Dr.

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Boulet recommended a calcium channel blocker, fish oil, an increase in Lipitor, and a

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follow-up in 6-12 months. (Id.) Plaintiff asserts he was not seen for this follow-up.

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Plaintiff also asserts that he was not prescribed lipids as recommended by the doctor.

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On September 12, 2011, Plaintiff saw PA Salyer and advised him that he was

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feeling a lot better since starting Imdur and asked to see a cardiologist. (Doc. 242 ¶ 94.)

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On October 22, 2011, Salyer submitted an outside consult request for a cardiology

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appointment for a cardiac catheterization evaluation. (Id. ¶ 95.) On October 26, 2011,

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Salyer saw Plaintiff for a cardiac chronic care appointment and noted his stent was stable,

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but noted crescendo angina and requested an urgent emergency room evaluation. (Id.

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¶ 96.) On October 26, 2011, Plaintiff was seen by Nurse Practitioner Mcelmeel at Tempe

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St. Luke’s Hospital. (Doc. 231 at 23.) NP Mcelmeel noted that Plaintiff was being seen

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after his routine visit with his physician at the ADC regarding ongoing angina and that

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Plaintiff reported that he had angina on and off for two years, which was managed

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medically with good relief with titration of his medications. (Id.) NP Mcelmeel noted

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that Plaintiff stated that he wanted to go back to the ADC and not get his current workup

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or angiogram at Tempe St. Luke’s because he was expecting a visit from his son on

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Saturday and would not get the opportunity to see him for another year, and that Plaintiff

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reported that his chest pain is no different than it ever is.

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recommended that Plaintiff follow-up with outpatient cardiology for an angiogram,

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continue all the same medications, and continue cessation of tobacco.

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(Id.)

NP Mcelmeel

(Id. at 25.)

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Plaintiff asserts that Mcelmeel’s medical record explains “in detail ADC’s failures and

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delays.” (Doc. 259 at 12). Mcelmeel noted that the DOC physician was frustrated with

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the slow process in coordinating an outpatient workup for Plaintiff and sent him to an

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inpatient setting to expedite a cardiology referral. (Doc. 231 at 23.) Plaintiff appears to

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assert that he was not provided follow-up treatment as recommended by NP Mcelmeel.

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(Doc. 259 at 12-13.)

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On October 27, 2011, Salyer noted that Plaintiff had returned from Tempe St.

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Lukes and submitted a consult for a cardiology catheterization lab evaluation. (Doc. 242

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¶ 98.)

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On November 18, 2011, Plaintiff was seen by Dr. Candipan at Phoenix Heart

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Center. (Doc. 231-1 at 47.) Dr. Candipan noted that Plaintiff had a history of coronary

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artery disease, and for the past few months was having symptoms of chest discomfort.

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(Id.) Dr. Candipan recommended that Plaintiff have a stress test and that his verapamil

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prescription be increased or that an ACE inhibitor be added. (Id. at 48.) Plaintiff asserts

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that Dr. Candipan’s orders were not followed. (Doc. 259 at 13.) Plaintiff asserts, without

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citation to evidence, that if a stress test had been performed, it would have shown an 87%

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blockage to the left side of his heart. (Id.)

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On January 26, 2012, Plaintiff was seen by Dr. Kumar at Advanced Cardiac

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Specialists. (Doc. 231-2 at 1-3.) Plaintiff told Dr. Kumar that his chest pain was

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increasing and he wanted an angiogram and that he had previously told physicians that he

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could not do any kind of stress test because of a meniscal tear. (Id.) Dr. Kumar

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recommended that a coronary angiogram be done and that Plaintiff stop Verapamil, add

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Norvasc, and continue Atenolol. (Id.) Plaintiff asserts that he did not receive Norvasc

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for over a year and points to an HNR and response from prison staff to establish that he

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did not receive the Norvasc.

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prescription was filled on March 5, 2013. (Id.)

(Doc. 245-3 at 38.)

The response indicates that the

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On February 14, 2012, Plaintiff had a left heart catheterization and PTCA stent

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placement. (Doc. 231-2 at 4-7.) Plaintiff asserts, without citation, that any damage found

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during the catheterization was the effect of “delayed treatment.” (Doc. 259 at 15.) The

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impression from the catheterization was “long tubular in-stent narrowing in the proximal

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left anterior descending artery of approximately 70-80%,” presence of an eccentric lesion

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prior to the stent of approximately 20-30% in the left anterior descending artery, and

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severe global hypokinesis of the left ventricle. (Doc. 231-2 at 5-6.) After the stent was

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placed, the resulting luminal narrowing was 0%. (Id. at 6.) Dr. Kumar recommended

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that Plaintiff be placed on Ecotrin and Plavix indefinitely and that Lipitor and Verpamil

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could continue, but Imdur “may not” be necessary anymore. (Id.)

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On February 15, 2002, PA Salyer noted that Plaintiff returned from the cardiac

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catheterization procedure and referred Plaintiff for a post-surgical follow-up appointment

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and completed an Outside Consultation Request form for a cardiology follow-up for a

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cardiac stent placement. (Doc. 242 ¶ 102.) On February 16, 2002, Salyer saw Plaintiff

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for a cardiac chronic care appointment.

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shortness of breath, or palpitations and was provided educations on nutrition, exercise,

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smoking, and medication management. (Id. ¶ 103.) Salyer requested a consult for a

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bilateral carotid artery ultrasound. (Id.)

Plaintiff had no complaints of chest pain,

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On March 22, 2012, Plaintiff was again seen by Dr. Kumar. (Doc. 231-2 at 8.) In

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his assessment and plan, Dr. Kumar noted that Plaintiff was doing extremely well with no

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more chest pain after a post percutaneous transluminal coronary angioplasty and stent

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placement in the left anterior descending artery in February 2012, and that Plaintiff had a

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decreased ejection fraction of approximately 33%. (Id.) Dr. Kumar stated that Plaintiff

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“would like to have his carotid arteries check” and, although no evidence of carotoid

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bruit was noted on examination, “since the patient is insisting, he will be scheduled for

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carotoid Doppler ultrasound studies.” (Id.) Finally, Dr. Kumar stated: “The patient also

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wants us to recommend a cardiac diet. The patient was recommended a 2-gram sodium,

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low-cholesterol cardiac diet. However, I am not sure this is available in the prison

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system.” (Id.)6 Finally, Dr. Kumar stated that Plaintiff “needs a cardiac followup in six

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months’ time,” and, at that time, an “echocardiogram may be necessary to reassess the

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ejection fraction.” (Id.)

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On March 26, 2012, PA Salyer submitted an Outside Consult Request for a
cardiology follow-up appointment for Plaintiff in six months. (Doc. 242 ¶ 105.)

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On March 29, 2012, Plaintiff was set to be transported for a cardio-evaluation, but

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Plaintiff refused transport due to safety concerns. (Doc. 245-2 at 35.) On April 16, 2012,

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Plaintiff signed a refusal to follow-up with cardiology due to “abuse at Central Unit.”

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(Doc. 242 ¶ 107.) A follow-up appointment with the health care provider was scheduled

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for April 26, 2012. (Id.) On May 2, 2012, it was noted that Plaintiff’s blood pressure

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checks were normal. (Id. ¶ 108.) On June 13, 2012, FNP Linde reviewed Plaintiff’s

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chart and noted the March 22, 2012 recommendation that Plaintiff be provided a low

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cholesterol, low sodium diet. FNP noted that because the standard ADC diet is designed

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to be low in sodium and cholesterol, no further action was needed. (Id. ¶ 109.)

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On June 13, 2012, Defendant Musson responded to a grievance Plaintiff filed

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stating that he had not received a renal or low fat/salt diet. In his response, Musson stated

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that a “low cholesterol and low sodium diet was ordered by the Medical specialist on

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3/22/12,” that the general population diet is “heart healthy” and “meets Plaintiff’s needs,”

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and that the Medical specialist did not indicate that the general population diet was

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inadequate with regard to cholesterol and sodium. (Doc. 245-3 at 22.)

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On August 10, 2012, Plaintiff was seen on the nurse’s line and claimed that he was

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120 days overdue for a chronic care visit, that he wanted to be on a renal diet, that he

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needed a heart cath, and that he needed a special needs order (SNO) renewed. Plaintiff

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was referred to the provider. (Doc. 242 ¶ 110.) On August 13, 2012, FNP Linde noted

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that Plaintiff was not overdue for a chronic care appointment and he had a pending

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Plaintiff asserts that Dr. Kumar “confirms that ‘cardiac diets are not available at
prison’” (Doc. 259 at 7), but that assertion is not supported by the evidence cited by
Plaintiff.
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follow-up with cardiology scheduled. Linde noted that further information about what

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SNO Plaintiff wanted to renew. (Id. ¶ 111.) On August 16, 2012, Plaintiff was called to

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the Health Unit to clarify his renewal for an SNO and Plaintiff asserted that due to his

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ejection fraction of 35%, he was too tired to walk to chow hall, especially in the heat.

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His request was referred to the provider. (Id. ¶ 112.) On August 20, 2012, FNP Linde

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reviewed Plaintiff’s request and noted that Plaintiff had not reported shortness of breath

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to the cardiologist on March 22, 2012, that Plaintiff refused a cardiology follow-up on

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April 16, 2012, that Plaintiff’s ejection fraction was expected to improve, and that there

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was no indication for a short distance walking pass. (Id. ¶ 113.) Linde denied Plaintiff’s

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request for a short distance walking pass and renewed an SNO for no repetitive

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bending/twisting of his left knee and limited work capacity. (Id.)

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On November 8, 2012, Dr. Thompson saw Plaintiff for a cardiovascular chronic

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care appointment and noted that Plaintiff’s hypertension was “good” and his lipids were

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poor. Dr. Thompson ordered a renal diet. (Id. ¶ 114.) On January 24, 2013, Dr.

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Thompson completed a Referral Request seeking a cardiology re-evaluation of Plaintiff.

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(Id. ¶ 115.) On February 27, 2013, Dr. Thompson saw Plaintiff for a cardiovascular

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chronic care appointment and noted fair control of Plaintiff’s hypertension, lipids, angina

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and poor control of his coronary artery disease. Dr. Thompson increased Plaintiff’s

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prescriptions for Pravastatin and prescribed Norvasc and requested a follow-up with

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cardiology. (Id. ¶ 116.)

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On March 19, 2013, Plaintiff was seen by Dr. Mhatre at Tempe St. Luke’s

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Hospital, who noted that Plaintiff denied any overt chest pain, but complained of

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intermittent pressure and fatigue. (Doc. 231-2 at 12.) Dr. Mhatre noted that Plaintiff was

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on “appropriate medical therapy, including beta-blocker and aspirin,” and recommended

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that Plaintiff start Lipitor, Coreg, discontinue atenolol, start Lisinopril, get a repeat

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echocardiogram and myocardial perfusion study to evaluate ongoing ischemia. (Doc.

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231-2 at 12-13.) Dr. Mhatre wanted to follow-up in two months after he received the

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results of the two tests. (Id.)

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On March 22 and 28, 2013, Dr. Thompson created paperwork to refer Plaintiff for

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a “repeat echo, myocardial perfusion study poss: Defebrillate.” (Doc. 242 ¶ 118.) On

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April 8, 2013, Dr. Thompson gave verbal orders to discontinue Plaintiff’s Lipitor 40 mg

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and Pravastatin 20 mg, but prescribed that 80 mg Pravastatin be taken at bedtime. (Id.

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¶ 119.)

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Lipitor 40 mg daily. (Id. ¶ 20.)

On April 11, 2013, Dr. Thompson discontinued Pravastatin and prescribed

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On May 7, 2013, Dr. Mhatre preformed a Lexiscan Stress Test, which was

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negative for ischemia and noted he was awaiting myocardial perfusion imaging.

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(Doc. 231-2 at 27.)

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On May 15, 2013, Plaintiff was seen, the results of his Lexican Stress Test were

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discussed, and his coronary artery disease was assessed as stable, with an improved

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ejection fraction. (Doc. 242 ¶ 124.) On July 11, 2013, Plaintiff was seen for a coronary

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artery disease chronic care appointment. (Id. ¶ 125.) On July 11, 2013, Plaintiff was

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seen by PA Salyer for a follow-up of his coronary artery disease. It was noted Plaintiff

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would need an ECG for his cardiology appointment and Salyer submitted a consultation

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request for a Carotid Doppler Ultrasound study and a cardiology follow-up for

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atherosclerotic heart disease cardiomyopathy. (Id. ¶¶ 126, 127.) On July 16, 2013, Nurse

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Practitioner Houdeshal noted that Plaintiff’s EKG did not show any ischemic changes.

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(Id. ¶ 128.) On July 24, 2013, an anteroposterior/posteroanterior chest x-ray was taken of

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Plaintiff and revealed “no evidence of active pulmonary parenchymal or pleural disease

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process” and a “cardiovascular silhouette with normal limits.”

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Doc. 242-5 at 12.) On August 8, 2013, Plaintiff was called to the Health Unit to discuss

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his diet and was told the ADC diet is designed to be heart healthy. Plaintiff said he

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understood, but reaffirmed that he wanted a cardiac diet. (Id. ¶ 130.) On August 20,

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2013, Plaintiff underwent a real time Spectral waveforms and color Doppler evaluation of

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the cartoid arteries, bilaterally. (Id. ¶ 131.)

(Doc. 242 ¶ 1297;

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There is an error in the date of this x-ray in Defendants’ Statement of Facts. (See
Doc. 242 at ¶ 129 (stating that x-ray was performed on July 24, 2003.))
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On August 20, 2013, Plaintiff was seen by Dr. Saad Alsaab at Tempe St. Luke’s

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Hospital and complained of chest pain. (Doc. 231-2 at 40-41.) Dr. Alsaab noted that

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Plaintiff’s last echo showed a normal function, his last stress test showed an ejection

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fraction of 44%, and that Plaintiff was not a candidate for ICD or defibrillator. (Id.) Dr.

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Alsaab recommended left heart catheterization.

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August 20, 2013, he had not been provided Lisinopril or Coreg as recommended by Dr.

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Mhatre on March 19, 2013, and that such delay was for “non-medical reasons.”

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(Doc. 259 at 18.)

(Id.)

Plaintiff asserts that as of

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On August 22, 2013, a Consult Request was submitted for a left heart

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catheterization. (Doc. 242 ¶ 133.) On September 18, 2013, Plaintiff was seen for a

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cardiac chronic care visit and stated that he felt like his arteries were clogging, he was

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having daily chest pains, and he wanted to go back on a renal diet, but only to eat lunch.

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An examination of Plaintiff revealed regular heart rhythm and a fair degree of

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cardiovascular control. (Id. ¶ 134.)

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On October 28, 2013, Plaintiff was seen by Dr. Candipan at St. Luke’s Medical

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Center for a left heart catheterization, left ventricular angiography, selective coronary

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angiography, and percutaneous coronary intervention and placement of a drug-eluting

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stent in the proximal left anterior descending artery.

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Mcelmeel at Tempe St. Luke’s Medical Center noted that Plaintiff should follow up with

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Dr. Khan in the ADOC clinic in 2 to 4 weeks, that Plaintiff should continue his Plavix

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and statin therapy, continue his carvedilol, amlodipine, Lisinopril, and Imdur, that

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Plaintiff should quit smoking, and that Plaintiff be given a heart healthy diet of 2 grams

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sodium and low cholesterol. (Doc. 231-3 at 1-2.)

(Doc. 231-2 at 45-46.)

NP

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On October 30, 2013, Plaintiff was seen for a post-op examination. Plaintiff felt

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more energetic and no longer felt like he had an elephant on his chest. Plaintiff was

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given a “stent card” and a diet was ordered. (Doc. 242 ¶ 136.)

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On December 10, 2013, Plaintiff was seen by Dr. Khan at Tempe St. Luke’s

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Hospital and reported a chest burning sensation. (Doc. 231-3 at 14-15.) Dr. Khan

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recommended an increase in Imdur, continuation of aspirin, Plavix, and a beta-blocker,

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and a follow-up in 3 to 4 weeks. (Id.) Plaintiff asserts he never received a follow-up.

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(Doc. 259 at 19.)

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On December 16, 2013, a consult request was submitted for a cardiology consult.
(Doc. 242 ¶ 138.)

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On February 17, 2014, Plaintiff was seen for complaints of chest pain, but denied

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pain at the time of the visit. Plaintiff was told to quit smoking. (Id. ¶ 139.) On

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February 22, 2014, Plaintiff was seen at the health unit for a follow-up and asserted he

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was experiencing increasing episodes of chest pain, but denied chest pain during the visit.

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(Id. ¶ 140.) Plaintiff reported that he had a one week trial diet, but he did not like his

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choices, so he did not choose anything. The medical record noted that Plaintiff chose

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high fat, high sodium items when he made purchases from the store. A cardiology

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consult was requested and Plaintiff was encouraged to try the ordered diet. (Id.)

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On March 18, 2014, Plaintiff saw Dr. Candipan at Tempe St. Luke’s Hospital for a

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follow-up regarding coronary artery disease. (Doc. 231-3at at 31-32.) Dr. Candipan

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noted that an EKG was done that day, which revealed normal sinus rhythm with evidence

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of a prior anteroseptal infarcation, and recommended that a Lexiscan stress test be done

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in “the near future.” (Id.)

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On March 31, 2014, a consultation request for a Lexiscan stress test was submitted

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for Plaintiff. (Doc. 242 ¶ 143.) On May 6, 2014, Plaintiff was seen by PA Ainslie to

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review his March 18, 2014 cardiology consult with Dr. Candipan. Plaintiff was assessed

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with ischemic heart disease and the plan was for Plaintiff to undergo the Lexiscan stress

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test. (Id. ¶ 144.) Plaintiff was given a stress test on May 20, 2014, which showed angina

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with no evidence of ischemia. (Doc. 231-3 at 36.)

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On July 31, 2014, Plaintiff was seen by NP McKamey for complaints of knee

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pain. McKamey went over Plaintiff’s lab and stress test reports with him and wrote a

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request for a cardiology consult. (Doc. 242 ¶ 146.) On August 23, 2014, a Consultation

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Request was submitted for a left heart cath for Plaintiff. (Id. ¶ 147.) On September 4,

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2014, Plaintiff was seen by nursing staff requesting counseling for chest pain. Clinical

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Coordinator Johnson was contacted and a cardiology consult was approved. (Id. ¶148.)

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On October 21, 2014, Plaintiff was seen by Dr. Makki at Tempe St. Luke’s

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Hospital. Dr. Makki recommended that Plaintiff start Ranexa, increase his Lisinopril,

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continue aspirin and Plavix and follow-up in one month. (Doc. 231-3 at 36.) Plaintiff

6

asserts that Dr. Makki’s orders were “disregarded.” (Doc. 259 at 21.)

7

On October 22 and 24, 2014, Plaintiff’s cardiology report was reviewed and it was

8

noted that Ranexa 500 twice a day was to be started.

9

cardiologist and it was verified that Imdur was to be discontinued Staff were going to

10

recheck the cardiologist’s order for fish oil. (Doc. 242 ¶ 151.) On October 29, 2014, a

11

Consultation Request for a cardiology consult was submitted for a follow-up with Dr.

12

Makki. (Id. ¶ 152.)

A call was placed to the

13

On November 13, 2014, Plaintiff was seen by NP Mulhern and claimed that the

14

cardiologist did not go over the changes in his treatment at the October 21, 2014

15

appointment. (Id. ¶ 153.) The cardiology consult was discussed and Plaintiff asserted

16

that he did not think Imdur should be discontinued, so another call was placed to the

17

cardiologist. Plaintiff asserted that because he was not on a heart healthy diet, he was

18

only eating one meal a day and NP Mulhern told Plaintiff that was not healthy. (Id.)

19

Examination revealed that Plaintiff was not in acute distress and his heart had a regular

20

rate and rhythm. Cardiology was to be called regarding his medication and his diet was

21

to be discussed with health unit staff. (Id.) On November 14, 2014, NP Mulhern

22

contacted the cardiologist, who affirmed that Imdur should be discontinued. Ranexa was

23

changed to keep on person and the FHA was going to check for past diet information on

24

Plaintiff. (Id. ¶ 154.) On December 5, 2014, Plaintiff was scheduled for the chronic care

25

line. “Time lab work” was ordered and medications were reviewed. (Id. ¶ 155.)

26

On December 13, 2014, Plaintiff was seen at the Health Unit for complaints of

27

chest pain, and Plaintiff was authorized to go to the hospital. He was later admitted to

28

Mountain Vista Medical Center. (Id. ¶ 156; Doc. 231-3 at 40.) Plaintiff reported that

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1

Ranexa did not work and requested Imdur. (Id.) A stress test was done, which showed

2

an area of significant reversible ischemia and a cardiac catheterization was done, which

3

did not reveal any acute abnormality. (Id. at 45, 50-51.) Plaintiff’s ejection fraction was

4

around 30% to 35%. (Doc. 231-4 at 23.) It was recommended that Imdur be added and

5

that Plaintiff continue Ranexa. (Doc. 231-3 at 51.)

6

On January 2, 2015, Plaintiff was seen by NP Mulhern for complaints of chest

7

pain and was advised that he had an ejection fraction in the 30s. (Doc. 242 ¶ 158.)

8

Plaintiff said he would not go to the hospital and just wanted staff to know that he was

9

experiencing chest pain. Examination revealed that Plaintiff was alert and oriented times

10

three, was not in acute distress, and his heart had a regular rate and rhythm. (Id.) Dr.

11

Rispin advised that Plaintiff’s vitals should be checked, Plaintiff could be given up to

12

three Nitroglycerin, and if Plaintiff’s chest pain resolved, he could return to the housing

13

unit. (Id.)

14

On February 17, 2015, Plaintiff was seen by Dr. Makki at Tempe St. Luke’s

15

Hospital. (Doc. 231-4 at 23.) Dr. Makki recommended that Plaintiff resume isosorbide

16

mononitrate and Ranexa and a MUGA scan to make sure that Plaintiff’s ejection fraction

17

was 40 or better. (Id.) Dr. Makki stated that if the ejection fraction was not 40 or better,

18

Plaintiff would need an automatic implantable cardioverter defibrillator. (Id.) Dr. Makki

19

stated that Plaintiff should follow-up in 2 to 4 weeks. (Id.) An ADOC Clinic Progress

20

note indicated that Plaintiff was not on Ranexa because it was not covered by Corizon.

21

(Doc. 231-4 at 27.)

22

On July 15, 2015, Plaintiff submitted an Inmate Informal Complaint Resolution

23

complaining that he was without Ranexa from June 30, 2015 through July 8, 2015, and

24

received a response from COIII Beauregard explaining that the non-formulary medication

25

went through an approval process and would be submitted sooner to avoid delay in the

26

future. (Doc. 245-4 at 1-3.)

27

On April 21, 2015, Plaintiff was seen by Dr. Makki at Tempe St. Luke’s Hospital

28

regarding follow-up on his angina and ischemic cardiomyopathy. (Doc. 245-3 at 27.)

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1

Plaintiff reported to Dr. Makki that his meals at the prison are not cardiac friendly and, as

2

a result, Dr. Makki recommended that Plaintiff should be on a cardiac diet, including

3

salads and lean meat to prevent any progression of his coronary artery disease. (Id.)

4

Plaintiff asserts that the only meats he receives are processed lunch meats and does not

5

receive any unprocessed chicken or lean meat and that all menu items contain sodium.

6

(Doc. 259 at 24.)

7

In response to Plaintiff’s July 19, 2015 grievance requesting a “cardiac diet,”

8

Registered Nurse Croadsdale responded that “DOC does not offer a low sodium or

9

cardiac diet.” (Doc. 245-3 at 30.)

10

Based on the above cited medical records, Plaintiff argues that his constitutional

11

rights have been violated because it is the “practice of the ADC . . . that if dietary

12

requirements are outside the norm[,] it[’]s not to be provided,” and that Plaintiff is told by

13

the ADC that the existing diet is heart healthy “d[e]spite orders contradicting this fact

14

from cardiac doctors for years.” (Doc. 259 at 7-8.) Plaintiff further argues that he

15

experienced delays in cardiac care. See generally id.

16

Plaintiff asserts that Defendants’ actions caused him injury because he was

17

advised on March 19, 2015 that “delayed treatment over 1 year” caused him “extensive

18

damage.” (Doc. 259 at 9.) To support this alleged injury, Plaintiff cites a January 26,

19

2013 medical record from Dr. Kumar at Advanced Cardiac Specialists and March 19,

20

2013 medical record from Tempe St. Luke’s Hospital, Doc. 259 at 9 (citing Doc. 231-2 at

21

1-3 and 12), but those medical records do not support Plaintiff’s claim that he was

22

informed that delayed treatment for over a year caused extensive damage.8

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8

Defendants’ objections to Plaintiff’s evidence on hearsay grounds are overruled.
See Quanta Indemnity Co. v. Amberwood Dev. Inc., No. CV 11-1807-PHX-JAT, 2014
WL 1246144, at *2 (D. Ariz. March 26, 2014) (material in a form not admissible in
evidence, but which could be produced in a form admissible at trial, may be used to
avoid, but not obtain summary judgment) (citing cases). Moreover, Defendants object to
Dr. Cohen’s report, in part, because Plaintiff has failed to show that it has relevance to his
medical claims. Plaintiff asserts that Cohen “must be questioned” to determine whether
he considered Plaintiff’s medical records in making his report. (See Doc. 260 at 7.) The
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1

VI.

Discussion

2

To state an Eighth Amendment claim, plaintiffs must meet a two-part test.

3

Farmer v. Brennan, 511 U.S. 825, 835 (1994). “First, the alleged constitutional

4

deprivation must be, objectively, sufficiently serious,” and the “official’s act or omission

5

must result in the denial of the minimal civilized measure of life’s necessities.” Id. at 834

6

(internal quotations omitted).

7

culpable state of mind” – he must act with “deliberate indifference to inmate health or

8

safety.” Id. (internal quotations omitted). In defining “deliberate indifference” in this

9

context, the Supreme Court has imposed a subjective test: “the official must both be

10

aware of facts from which the inference could be drawn that a substantial risk of serious

11

harm exists, and he must also draw the inference.” Id. at 837 (emphasis added).

Second, the prison official must have a “sufficiently

12

An inadvertent failure to provide adequate medical care or negligence in

13

diagnosing or treating a medical condition does not support an Eighth Amendment claim.

14

Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citations omitted). Further, a

15

mere difference in medical opinion does not establish deliberate indifference. Jackson v.

16

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

17
18

Finally, even if deliberate indifference is shown, the prisoner must demonstrate
harm caused by the indifference. Jett, 439 F.3d at 1096

19

Plaintiff alleges that Defendants have authority to create policy for the Arizona

20

Department of Corrections. Plaintiff does not argue that Defendants directly violated his

21

constitutional rights, but rather that they either failed to enact policies to protect his

22

constitutional rights, or that they allowed a custom of inadequate healthcare to continue

23
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27
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opportunity for Plaintiff to conduct discovery and question Dr. Cohen has passed. To the
extent Plaintiff claims that Dr. Cohen examined his medical records, such claim is mere
speculation is not supported by evidence.
With regard to Defendants’ other objections, the Court has considered the
remainder of Plaintiff’s arguments and evidence despite those objections. The Court will
thus neither overrule nor sustain those objections at this time.

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knowing that the ADC was not providing adequate healthcare, and failed to act to correct

2

the custom.

3

Thus, Plaintiff must show: (1) that his Eighth Amendment rights were violated by

4

an employee or employees of the ADC; (2) that Defendants have customs or policies that

5

amount to deliberate indifference; and (3) that the policies or customs were the moving

6

force behind the violation of Plaintiff’s constitutional rights in the sense that Defendants

7

could have prevented the violation with an appropriate policy. See Gibson v. County of

8

Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002). “Policies of omission regarding the

9

supervision of employees . . . can be policies or customs that create . . . liability . . . , but

10

only if the omission reflects a deliberate or conscious choice to countenance the

11

possibility of a constitutional violation.” Id. at 1194 (quotations omitted).

12

As noted above, Plaintiff specifically alleged in his Second Amended Complaint

13

that Defendants failed to enact policies to ensure that he was provided timely medical

14

care, and that Defendants’ policy of requiring unit healthcare providers to submit a

15

referral for specialist care to a review board committee caused unreasonable delay, and

16

that the review board committee unreasonably denies such referrals. Plaintiff alleged

17

that, because of these policies, he has suffered unreasonable delays and refusals, which

18

are causing his current and future heart failure.9

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///

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9

Defendants argue that they have delegated the responsibility for healthcare to
medical providers, that they do not create medical policies and are not responsible for
such policies, and, as a result, that summary judgment should be granted in their favor.
Similar arguments have been rejected in this Circuit. See Long v. County of Los Angeles,
442 F.3d 1178, 1187 (9th Cir. 2006) (“even where trained professionals are involved, a
plaintiff is not foreclosed from raising a genuine issue of triable fact regarding municipal
liability when evidence is presented which shows that the municipality’s failure to train
its employees amounts to deliberate indifference. Indeed, the County’s argument would
allow municipalities to insulate themselves from liability for failing to adopt needed
policies by delegating to trained personnel the authority to decide all such matters on a
case by case basis, and would absolve the governmental agencies of any responsibility for
providing their licensed or certified teachers, nurses, police officers and other
professionals with the necessary additional training required to perform their particular
assignments or to implement the agency’s specific policies.”).
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1

A.

2

Plaintiff argues that recommended follow-up appointments were delayed and the

3

receipt of certain prescribed medications was delayed. In support of his argument that

4

recommended follow-ups were delayed, Plaintiff offers medical records showing when a

5

follow-up was recommended, and other medical records showing that the follow-up

6

occurred outside the recommended time frame.

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recommended medications were delayed, Plaintiff offers evidence showing that there

8

were delays between the time certain medications were prescribed and when Plaintiff

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actually received those medications.

Delay in Treatment and Medications

In support of his argument that

10

The record does contain evidence of delays in receiving medication and follow-up

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care, but Plaintiff does not offer specific evidence for each occasion he claims there was a

12

delay showing that the delays could be attributed to failure to enact a proper policy or that

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the delays were the result of deliberate indifference to his serious medical needs.

14

Moreover, while Plaintiff alleges that he has suffered harm in terms of his worsening

15

condition, he has not produced any admissible evidence that his condition stems from any

16

delay that he has experienced. See, e.g., Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th

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Cir. 1989) (delay in providing medical treatment does not constitute Eighth Amendment

18

violation unless delay was harmful); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

19

1990) (a delay in treatment does not constitute an eighth amendment violation unless it

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causes harm). The evidence shows that Plaintiff had serious heart problems before he

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was incarcerated, that he was counseled several times during his incarceration to stop

22

smoking, and that he failed on some occasions to choose healthy foods. Plaintiff has not

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shown that any progression of his heart disease was due to delays in appointments or

24

medications as opposed to progression of his pre-existing disease or these other factors.

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Speculative and conclusory allegations are insufficient to overcome summary judgment.

26

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Soremekun v. Thrifty

27

Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“[c]onclusory, speculative testimony in

28

affidavits and moving papers is insufficient to raise genuine issues of fact and defeat

- 18 -

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summary judgment”). The record shows that Plaintiff received consistent medical care

2

related to his heart condition and, while that care may not have been ideal, Plaintiff has

3

not shown that the delays resulted from deliberate indifference or caused his current and

4

future condition.

5

B.

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Plaintiff previously sought a preliminary injunction seeking a cardiac diet. In its

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Order denying Plaintiff’s motion or a preliminary injunction, the Court stated the facts as

8

follows:10
Plaintiff seeks a cardiac diet, which he asserts has been
ordered by an outside cardiac consultant. (Doc. 30.) In
January 2014, prison officials proposed a diet that they argue
is consistent with Plaintiff’s needs; Plaintiff declined the diet.
(Doc. 70 at 7.) In his reply to his Motion, Plaintiff claims that
the diet was not in fact offered, and he asks the Court to order
the approved cardiac diet served at the prison lockdown ward
at St. Luke’s Hospital, Tempe, Arizona, which Plaintiff
contends is consistent with the orders of his prescribing
doctors. (Doc. 74 at 10.)

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Defendants offer the declaration of Barbara Shearer,
the ADC liaison between the food contractor, Trinity Food
Services Inc. (Trinity), and the company that operates the
commissary, and they offer the declaration of Laura
Donnelly, a licensed dietician employed by Trinity. (Doc. 70,
Ex. A, Shearer Decl. ¶ 3, Ex. B, Donnelly Decl. ¶¶ 1, 2.) The
process to obtain a medical diet begins with an order from
medical staff of Corizon Health, Inc. (Corizon), which is the
contract health-care provider. (Shearer Decl. ¶¶ 3, 4.)
Pursuant to ADC food service policies, restricted diets are
available for ADC inmates whose medical conditions require
specific dietary restrictions to preserve their health and wellbeing. (Ex. B, Donnelly Decl. ¶ 4.) The policies authorize
ADC’s medical department personnel to prescribe only the
restricted medical diets identified in the ADC’s Diet
Reference Manual. (Id.) If an inmate’s medical condition

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Diet

10

The parties used the same facts and evidence in support of their arguments
regarding the motion for preliminary injunction as they use in support of their arguments
in support of summary judgment.
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requires dietary restrictions that are not accommodated by the
diets listed in ADC’s Diet Reference Manual, ADC’s medical
department must request a dietary consultation with Donnelly
before prescribing any such diet. (Id.) Donnelly is
responsible for designing menus that outline nutritionally
adequate meals pursuant to the specifications, directives, and
guidelines of the correctional institutions, detention facilities,
and government agencies for which Trinity provides food
service.
Defendants assert that when Donnelly receives a
request for a dietary consultation, she collaborates with
ADC’s medical department to formulate a medically
appropriate diet and menu. (Donnelly Decl. ¶ 5.) If the diet
is not an approved diet, it must be approved by Dr. Williams
at Corizon. (Shearer Decl. ¶ 4.) After validating the diet,
Shearer enters it into the diet roster system and hand carries a
copy of the Restricted Diet Order form, the Diet Card Receipt
form, and the Diet Card to the Trinity office. (Id.) The
Kitchen Supervisor carries the paperwork to the prison unit
for delivery to the inmate and to obtain the inmate’s
signature. (Id.) Director Ryan, Richard Pratt, and Matthew
Musson are not involved with the medical-diet order process.
(Id. ¶ 5.)
Defendants assert that Plaintiff was admitted to St.
Luke’s Hospital on October 28, 2013 to undergo an
angiography. (Doc. 30 at 14-15.) He was discharged on
October 29, 2013, and his discharge plan included a
“[c]ardiac heart healthy 2 gm sodium, low cholesterol diet.”
(Id.) A Renal/Dialysis Diet was written by Dr. Thompson for
Plaintiff on November 8, 2012. (Shearer Decl. ¶ 6.) In a
November 6, 2013 letter to Shearer, Plaintiff explained that
after speaking with Dr. Kumar on March 22, 2012, his
cardiologist, Dr. Candipan, on October 28, 2013, and Dr.
Byrd on November 5, 2013, the proper diet for him was a
“Cardiac Diet.” (Id. ¶ 8.) He asked to be removed from the
Renal Diet and advised that he was going to resolve his diet
issue with the federal court. (Id.) He was removed from the
renal diet.
On November 20, 2013, Shearer responded to
Plaintiff’s letter, advising that the Cardiac Diet is similar to
the foods served on the Renal Diet, such as lower in fat and
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sodium and that the Dietician will consult with Plaintiff’s
Medical Provider to ensure the most effective diet plan is in
place. (Id. ¶ 10.) Plaintiff sent another letter to Shearer dated
November 29, 2013, questioning his receipt of a “Cardiac
Diet.” (Id. ¶ 11.) Shearer then scheduled a telephone
conference with Plaintiff to discuss his diet. During the
conference, Plaintiff advised Shearer that Family Nurse
Practitioner (FNP) Byrd and his doctor on the outside were
working on developing a proper diet for him. (Id.) Shearer
contacted the Health Unit and spoke with Byrd, who advised
that she was working with Dietician Donnelly on a proper
diet for Plaintiff that would be approved by Dr. Williams.
(Id. ¶ 12.) FNP Byrd asked Shearer to print out Plaintiff’s
commissary purchases so she could review his food
purchases. (Id.)
On December 23, 2013, Shearer responded to
Plaintiff’s inmate letter, stating:
This is in response to your inmate letter Dated 11/29/13. Per
our phone conversation on 12/23/13 I need you to talk to your
DR. and get me some guidelines so the Dietician can
formulate a new diet for your medical needs. You have stated
that your Dr. did not accept the Cardio Diet that we use here.
Therefore we need the guidelines from that Dr.
(Id. ¶ 14.)
On December 31, 2013, Dr. Williams approved a new
Diet Order to provide Plaintiff with a 2-gram-low sodium,
low-cholesterol diet. (Shearer ¶ 15.) The diet would expire
on December 31, 2014. (Id.) On January 6, 2014, Donnelly
received a request from the ADC’s Eyman Complex medical
department for a dietary consultation for Plaintiff, which
occurred on January 9. (Donnelly Decl. ¶ 6.) During the
consultation, Donnelly discussed and reviewed with the
Deputy Warden and a nurse practitioner the progress notes
concerning Plaintiff’s medical treatment and his lab work.
They also reviewed and discussed the dietary restrictions
recommended for Plaintiff by an outside medical provider, as
well as Plaintiff’s commissary food purchases. (Id.)
According to Defendants, Plaintiff’s lab work and
progress notes did not indicate that a 2-gram-sodium, lowcholesterol diet was medically warranted, but the Deputy
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Warden and nurse practitioner indicated that they were
nevertheless inclined to accept the recommendation of the
outside medical provider and approve the dietary restrictions
to avoid a dispute with Plaintiff. (Id. ¶ 7.) Donnelly would
formulate a menu that conformed with the recommended
dietary restrictions and suggested that someone in the Cook
Unit infirmary should counsel Plaintiff about his commissary
purchases because most of the food items that he purchased
were inconsistent with the recommended dietary restrictions.
(Id. ¶¶ 7, 14.) Plaintiff disputes this, stating that some items
were purchased for a party and his consumption of other
items was very infrequent. (Doc. 74 at 7.)
Donnelly subsequently formulated an individually
tailored one-week menu for Plaintiff based on the dietary
restrictions recommended by his outside medical provider.
(Donnelly Decl. ¶ 8, attach. Ex. B.) Although the words
“Temporary diet from Medical” appear on the menu, it was
not intended as a temporary menu; Donnelly simply neglected
to delete the words “Temporary diet from Medical” from a
template she used. (Id. ¶ 9.) Donnelly’s standard practice in
situations like this is to initially formulate only a one-week
menu because formulating a full six-week cycle individually
tailored menu is time consuming and many inmates are
terminated from their medical diets after refusing the meals
prepared for them within the first week of an individually
tailored menu’s implementation. (Id. ¶ 10.)
Donnelly asserts that she modeled the menu after
ADC’s unrestricted regular diet menu as closely as possible
because the meals it outlines are generally considered “heart
healthy” and contain, on average, less than 400 mg of
cholesterol and less than 5 grams of sodium per day. (Id. ¶
12.) Plaintiff’s menu, however, substitutes certain items on
the regular diet menu, like potato chips, deli meats and fried
potatoes, with more complex, high fiber foods, like fruits,
vegetables and boiled potatoes, that provide, on average, less
than 300 mg of cholesterol, which is considered low under the
American Heart Association guidelines, and no more than 2
grams of sodium per day. (Id.)
Before forwarding the menu she formulated for
Plaintiff to Shearer on January 16, 2014, Donnelly analyzed it
using the SQL Food Processor software from the ESHA
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Corporation of Salem, Oregon to confirm that it: (a)
conformed to the dietary restrictions recommended by
Plaintiff’s outside medical provider; and (b) satisfied the
nutritional standards established by the National Academy of
Sciences - National Research Council, which serve as the
national standard for nutritional guidelines. (Id. ¶ 13.)
According to Defendants, Plaintiff began receiving a 2-gram
sodium, low-cholesterol diet on January 16, 2014. (Shearer
Decl. ¶ 16; Donnelly Decl. ¶ 11.) Plaintiff disputes that he
ever received the diet, stating that he received only a copy of
the proposed diet. (Doc. 74 at 5.)

8
9
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13
14

On January 27, 2014, Plaintiff returned his restricted
diet card, noting:
The Diet Card signed on 12/31/13 was intended as a
temporary diet for 1 week until FNP-C K. Byrd could order a
“Cardiac Diet” consistent with the treatment plan ordered on
10/28/13 and 12/20/13 and many of the food items on the
temp diet would harm my condition, on 1/21/14 FNP-C K
Byrd noted a new order for a “Cardiac Diet” was placed, see
attached HNR with new order for Cardiac Diet

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(Shearer Decl. ¶ 17; Donnelly Decl. ¶ 11.) Consequently, a
full six-week cycle menu was not required because Plaintiff
surrendered his restricted diet card and indicated that he did
not wish to receive meals prepared in accordance with the
menu. (Donnelly Decl. ¶ 11.)
(Doc. 106 at 3-8; see Doc. 242 ¶¶ 159-193.)

20

Plaintiff asserts that Dr. Makki recently recommended that Plaintiff be on a diet

21

consisting of lean meats and salads, but that he is not given that diet because ADC does

22

not offer a “cardiac diet.”

23

As the Court noted in ruling on Plaintiff’s Motion for Preliminary Injunction,

24

Plaintiff did not plead claims relating to an inadequate diet in his Second Amended

25

Complaint. (See Doc. 106 at 8.) Even assuming that those claims were somehow

26

encompassed in what Plaintiff did allege, Plaintiff has not shown that anyone has been

27

deliberately indifferent to his medical needs with regard to an appropriate diet and has not

28

shown that he was denied a medically-appropriate diet due to a policy of Defendants.

- 23 -

1

Plaintiff repeatedly argues that ADC employees’ statements that ADC does not

2

offer a cardiac diet show that he is not provided a cardiac diet due to a policy of the ADC.

3

The evidence shows, however, that ADC employees, employees of Trinity, and

4

employees of Corizon have worked with Plaintiff to formulate an appropriate diet, even

5

though the ADC does not call the diet a “cardiac diet,” and that Plaintiff has considered

6

those diets inadequate. Although Plaintiff shows that he does not consider the ADC’s

7

offerings adequate, he has not produced any evidence from any doctor showing that any

8

doctor believes that the diet Plaintiff is getting is inadequate or that the diets that have

9

been offered Plaintiff are inadequate. Under these circumstances, an Eighth Amendment

10

claim cannot lie. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (citation

11

omitted) (“The Eighth [and Fourteenth] Amendment[s] require[] only that prisoners

12

receive food that is adequate to maintain health.”) (quoting Hamm v. DeKalb County, 774

13

F.2d 1567, 1575 (11th Cir. 1985)). Plaintiff has not shown deliberate indifference with

14

regard to a heart healthy diet and has not shown that he has been denied a diet as a result

15

of a policy, practice, and custom of any of the named Defendants.

16

Because Plaintiff has not presented evidence to raise a disputed issue of material

17

fact that there was any constitutional violation as to his medical care, and has not

18

presented evidence showing that Defendants were involved in any policies, practices, or

19

customs that resulted in a violation of Plaintiff’s constitutional rights, the Court will grant

20

Defendants’ Motion for Summary Judgment.

21

IT IS ORDERED:

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23

(1)

The reference to the Magistrate Judge is withdrawn as to Defendants’

Motion for Summary Judgment (Doc. 241).

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3

(2)

Defendants’ Motion for Summary Judgment (Doc. 241) is granted, and the

action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.
Dated this 2nd day of February, 2016.

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