Mowry # 159208 v. Balashi et al

Filing 54

ORDER, the reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss 48 ; all other matters must remain referred to the Magistrate Judge for disposition as appropriate; Defendant's Motion to Dismiss 48 is denied; Defendant Steinhauser must file an Answer within 10 days. Signed by Senior Judge Stephen M McNamee on 4/1/15.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arron Eugene Mowry,

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Plaintiff,

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No. CV 13-2210-PHX-SMM (MEA)

v.

ORDER

Balashi (M.D.), et al.,

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Defendants.

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Before the Court is a Motion to Dismiss filed by Defendant Steinhauser.

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(Doc. 48.)

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I.

Background

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On October 29, 2013, Plaintiff, who is confined in the Arizona State Prison

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Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. §1983

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alleging that he was denied constitutionally adequate medical treatment when he was

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confined in the Maricopa County Lower Buckeye Jail.

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dismissed for failure to state a claim, and Plaintiff filed a First Amended Complaint.

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(Doc. 12.)

Plaintiff’s Complaint was

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

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First Amended Complaint stated a claim and directed Defendant Balashi to answer.

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(Doc. 13.) On May 22, 2014, Plaintiff filed a motion (Doc. 31) seeking to voluntarily

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dismiss Balashi as a Defendant, a motion (Doc. 32) seeking leave to amend his complaint

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because he had named the wrong person as a defendant, and a motion (Doc. 33) seeking

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leave to “join” the proper parties. On June 30, 2014, Plaintiff lodged a proposed Second

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Amended Complaint (“SAC”) identifying Dr. Steinhauser as the person he now believes

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was responsible for his harm. In a July 7, 2014 Order, the Court granted Plaintiff’s

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motions, and gave leave to file the proposed SAC, effectively substituting Dr.

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Steinhauser for Dr. Balashi as the Defendant in this matter, and ordered service on

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Defendant Steinhauser. (Doc. 42.) In a subsequent Order, the Court dismissed Balashi

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from this action. (Doc. 46.)

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Plaintiff’s SAC is nearly identical to his First Amended Complaint except for the

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substitution of Dr. Steinhauser for Dr. Balashi. In his SAC (Doc. 42), Plaintiff alleges

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that he had a torn rotator cuff, as evidenced by x-rays ordered from Phoenix Baptist

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Hospital, Defendant Steinhauser’s physical examinations, and an orthopedic doctor’s

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consultation. Steinhauser examined Plaintiff on April 24, 2012 and prescribed Elavil for

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Plaintiff’s pain, even though Elavil is an antidepressant and not a pain reliever. Plaintiff

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had submitted three Health Needs Requests (“HNRs”) complaining about his injury and

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pain before that appointment and submitted six more HNRs after his appointment

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complaining that his pain was getting worse and causing more injury. Different nurses

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processed and signed those HNRs and forwarded them to Steinhauser.

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Plaintiff submitted a grievance on May 15, 2012, and a grievance appeal on May

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22, 2012, complaining that he was in serious pain, that he was not receiving proper

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medical care, and that he needed immediate treatment. The responses to his grievance

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and appeal “were attempts to use the medication gabapentin that [Plaintiff] was getting

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through the psych Doctor for [his] mental disorder (bipolar, anxiety, depression) as an

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excuse & as a means of pain relief.” (Doc. 43 at 5.) Plaintiff’s grievance was dismissed

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with an explanation that Plaintiff was receiving Gabapentin for pain relief even though

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Steinhauser had stated that Plaintiff “only wanted narcotics” and that narcotics and

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Gabapentin were not indicated for degenerative arthritic pain and that Steinhauser would

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not prescribe them to Plaintiff. Instead, Steinhauser prescribed Elavil “because she

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thought [Plaintiff] was malingering or faking [his] injury & pain to get narcotics from

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her.” (Id.)

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After about five weeks, Plaintiff began receiving Tramadol for his pain, but it was

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ineffective, even when the dosage was increased. Because of the pain, Plaintiff could not

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perform physical therapy to strengthen the muscles surrounding the injury and the

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separation in his shoulder became worse and would not heal, which caused more pain and

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suffering and a deformity in Plaintiff’s shoulder. Between May 20, 2012 and July 9,

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2012, Plaintiff submitted 17 HNRs “explaining the problem.” (Doc. 43 at 7.) On July

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25, 2012, Plaintiff saw an orthopedic doctor and was given an injection of Turadol, but it

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was “not fully effective.” (Id.) At the end of July, Plaintiff was transferred to the

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Maricopa County Fourth Avenue Jail, where he continued seeking treatment and

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requesting pain relief. Plaintiff was given a prescription for Vicodin in addition to the

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Tramadol. The Vicodin helped enough to allow Plaintiff to do physical therapy. Because

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of the delay in medical care, Plaintiff was subjected to a “significant amount of pain and

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suffering for an unnecessarily long period of time,” which caused permanent damage and

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a deformity in his shoulder. Plaintiff’s injury healed abnormally and left him slightly

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disfigured, with his left arm hanging a little lower than his right arm, and he still has

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problems.

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II.

Legal Standard

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On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all

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allegations of material fact are assumed to be true and construed in the light most

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favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009). Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal

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theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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dismissal, a complaint need contain only “enough facts to state a claim for relief that is

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plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

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principle that a court accepts as true all of the allegations in a complaint does not apply to
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To avoid

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legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not

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akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

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defendant has acted unlawfully.” Id. To show that the plaintiff is entitled to relief, the

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complaint must permit the court to infer more than the mere possibility of misconduct.

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Id.

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A claim must be stated clearly enough to provide each defendant fair opportunity

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to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996).

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“Something labeled a complaint . . ., yet without simplicity, conciseness and clarity as to

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whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a

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complaint.” Id. at 1180.

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III.

Analysis

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Defendant contends that Plaintiff’s allegations, at most, show a difference of

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opinion regarding how his pain should be treated, or possibly negligence, and do not

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amount to deliberate indifference to a serious medical need. (Doc. 48 at 3-5.)

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Plaintiff alleges that he was in significant pain due to a shoulder injury, that

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Defendant was aware of his pain from his HNRs and examining him, and that Defendant

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failed to provide adequate pain relief for at least five weeks. As a result, Plaintiff alleges

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that he was unable to do physical therapy, which resulted in permanent damage and

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disfigurement. These facts, if true, would entitle Plaintiff to relief.

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Accordingly, Defendant’s Motion to Dismiss is denied.
IT IS ORDERED:
(1)

The reference to the Magistrate Judge is withdrawn as to Defendant’s

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Motion to Dismiss. (Doc. 48.) All other matters must remain referred to the Magistrate

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Judge for disposition as appropriate.
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(2)

Defendant’s Motion to Dismiss (Doc. 48) is denied.

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(3)

Defendant Steinhauser must file an Answer to the SAC within 10 days of

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this Order.
DATED this 1st day of April, 2015.

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Honorable Stephen M. McNamee
Senior United States District Judge

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