Emerson v. Corizon Health Services et al

Filing 50

ORDER (Service Packet): IT IS ORDERED that Defendants Corizon, Lavoy, Horwitz, Lasac, Ryan, Grafton, Johnson, Robertson, Shuman, Fizer, and Smith-Whitson must answer the 48 Second Amended Complaint. FURTHER ORDERED thatthe Clerk of Court shall sen d Plaintiff a service packet including the Second Amended Complaint, this Order and the Court's January 11, 2018 36 Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver o f Service of Summons form for Defendants Lavoy, Horwitz, Lasac, Ryan, Grafton, Johnson, Robertson, Shuman, Fizer, and Smith-Whitson. Plaintiff shall complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. See document for complete details. Signed by Magistrate Judge Eileen S Willett on 5/7/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary John Emerson,

No. CV-15-00093-PHX-ROS (ESW)
Plaintiff,

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v.

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ORDER

Corizon Health Services, et al.,

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Defendants.

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By separate Order, the Court granted Plaintiff’s Motion (Doc. 42) requesting leave

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to file a Second Amended Complaint (Doc. 47).

In accordance with the Court’s

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continuing obligation to screen prisoners’ complaints, 28 U.S.C. § 1915A(a), the Court

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screens the Second Amended Complaint (Doc. 48) as follows.
I. DISCUSSION

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The Court has a continuing obligation to screen complaints brought by prisoners

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seeking relief against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a).

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frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief

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from a defendant who is immune from suit. 28 U.S.C. § 1915(A)(b)(1), (2).

The Court must dismiss a complaint or portion thereof that is legally

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“Failure to state a claim under § 1915A incorporates the familiar standard applied

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in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “The Rule

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12(b)(6) standard requires a complaint to ‘contain sufficient factual matter, accepted as

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true, to state a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009)). Thus, in reviewing Plaintiff’s Second Amended Complaint,

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the Court must accept as true all well-pled factual allegations and draw all reasonable

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inferences therefrom. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);

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Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296-98 (9th Cir. 1998). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the Court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

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556 U.S. at 678. In addition, the Court must liberally construe the Second Amended

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Complaint. See Wilhelm, 680 F.3d at 1121 (“We construe pro se complaints liberally and

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may only dismiss a pro se complaint for failure to state a claim if it appears beyond doubt

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that the plaintiff can prove no set of facts in support of his claim which would entitle him

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to relief.”) (internal quotation marks and citation omitted).

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Plaintiff’s First Amended Complaint raises an Eighth Amendment medical care

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claim against a number of Defendants. In its January 11, 2018 Order, the Court found

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that Plaintiff adequately stated a claim against only Defendant Corizon. (Doc. 36 at 9-

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11). The Court dismissed Defendants Lavoy, Horwitz, Lasac, Peretra, Ryan, Robertson,

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Shuman, Fizer, Smith-Whitson, Grafton, and Johnson from the First Amended Complaint

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without prejudice. 1 (Id. at 12). The proposed Second Amended Complaint contains

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additional factual allegations against Defendants Lavoy, Horwitz, Lasac, Grafton,

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Johnson, Ryan, Robertson, Shuman, Fizer, and Smith-Whitson. As discussed below, the

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Court finds that Plaintiff has corrected the deficiencies identified in the Court’s January

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11, 2018 Order with respect to the claim against these Defendants. 2 Because the Second

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The names of the Defendants referenced in this Order are in accordance with
how the names are spelled in the Second Amended Complaint. Defendants Horwitz and
Peretra’s names have also been spelled “Horowitz” and “Pereira” in prior Court filings.
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The Court dismissed Defendant Peretra from the First Amended Complaint for

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Amended Complaint does not amend the allegations against Defendant Corizon, the

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Court will order Defendant Corizon to answer the Second Amended Complaint for the

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reasons explained in the Court’s prior Order (Doc. 36 at 9-11).

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A. Defendants Lavoy, Horwitz, and Lasac

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In dismissing Defendants Lavoy, Horwitz, and Lasac from the First Amended

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Complaint, the Court explained that Plaintiff did not allege facts suggesting that

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Defendants Lavoy, Horwitz, and Lasac knew Plaintiff was continuing to experience pain

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or that they deliberately delayed Plaintiff’s treatment. (Doc. 36 at 6). In his Second

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Amended Complaint, Plaintiff asserts that Defendants Lavoy, Horwitz, and Lasac “failed

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to prescribe medications that Corizon would authorize as a direct consequence of their

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actions I did not have medication to relieve the pains of my medical conditions.” (Doc.

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48 at 22). The Court finds that for screening purposes, the Second Amended Complaint

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adequately states an Eighth Amendment medical care claim against Defendants Lavoy,

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Horwitz, and Lasac. The Court will require Defendants Lavoy, Horwitz, and Lasac to

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answer the Second Amended Complaint.

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B. Defendant Ryan

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The Court found that the First Amended Complaint failed to state an Eighth

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Amendment medical care claim against Defendant Ryan because it does not allege facts

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suggesting that Defendant Ryan knew of a significant risk to Plaintiff’s health and acted

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with deliberate indifference to that risk. (Doc. 36 at 7). The Second Amended Complaint

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contains the additional allegation against Defendant Ryan, which asserts that Defendant

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Ryan

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is aware that Corizon is not providing inmates with
failure to state a claim. (Doc. 36 at 6). Although the Second Amended Complaint lists
Defendant Peretra as a Defendant, no new allegations against Defendant Peretra have
been added. In a separately issued Report and Recommendation, the undersigned will
recommend that the Court dismiss Defendant Peretra from the Second Amended
Complaint. The Second Amended Complaint also names Defendant Townsend, who has
been dismissed from this action for failure to timely serve. The undersigned will also
recommend that the Court dismiss Defendant Townsend from the Second Amended
Complaint.

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medication that is helping out our conditions.
Ryan
nevertheless refuses to acting with deliberate indifference
direct Corizon to provide us these meds that help. In fact
Corizon staff in East Unit advised me that he has directed not
to give us medications that are effective for our pain.
(Doc. 48 at 22).

Liberally construed, the Court finds that the Second Amended

Complaint adequately states a claim against Defendant Ryan. Defendant Ryan will be
required to answer the Second Amended Complaint.
C. Defendants Grafton and Johnson
The Court dismissed Defendants Grafton and Johnson from the First Amended
Complaint because Plaintiff did not allege that they were aware of Plaintiff’s medical
need. (Doc. 36 at 8). The Second Amended Complaint corrects this deficiency by
alleging that Defendants Grafton and Johnson “[b]y my visits and communications to
them and through HNRs were aware the pain meds were not helping.

[T]hey

nevertheless refused to give me meds that helped.” (Doc. 48 at 23). The Court will
require Defendants Grafton and Johnson to answer the Second Amended Complaint.
D. Defendants Robertson, Shuman, Fizer, and Smith-Whitson
Similar to the reasons for dismissing the above Defendants, the Court dismissed
Robertson, Shuman, Fizer, and Smith-Whitson from the First Amended Complaint
because Plaintiff did not allege any facts suggesting that those Defendants were aware of
a significant risk to Plaintiff’s health or acted with deliberate indifference to that risk.

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(Doc. 36 at 7). The Second Amended Complaint includes the additional allegation that
through inmate complaints and [Plaintiff’s] complaints,
Robertson, Shuman, Fizer, Smith-Whitson though they have
delegated duty to ensure we inmates get effective care from
Corizon have refused to ensure this is done.
Robertson as the Cheif [sic] Medical Officer to ASPC has
taken affirmative actions to ensure that the treatment we
recieve [sic] is ineffective.

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(Doc. 48 at 23).

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Complaint corrects the deficiencies in the Eighth Amendment claim against Defendants

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Robertson, Shuman, Fizer, and Smith-Whitson. As such, Robertson, Shuman, Fizer, and

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Liberally construed, the Court finds that the Second Amended

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Smith-Whitson will be required to answer the Second Amended Complaint.
II. CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendants Corizon, Lavoy, Horwitz, Lasac, Ryan,

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Grafton, Johnson, Robertson, Shuman, Fizer, and Smith-Whitson must answer the

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Second Amended Complaint.

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IT IS FURTHER ORDERED that:

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1. The Clerk of Court shall send Plaintiff a service packet including the Second

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Amended Complaint, this Order and the Court’s January 11, 2018 Order (Doc. 36), and a

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copy of the Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit

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& Request for Waiver of Service of Summons form for Defendants Lavoy, Horwitz,

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Lasac, Ryan, Grafton, Johnson, Robertson, Shuman, Fizer, and Smith-Whitson.

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2. Plaintiff shall complete 3 and return the service packet to the Clerk of Court

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

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

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

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complete service of the Summons and Second Amended Complaint on a Defendant

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within 90 days of the filing of the Second Amended Complaint or within 60 days of the

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filing of this Order, whichever is later, the action may be dismissed as to each Defendant

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not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

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4. The United States Marshal shall retain the Summons, a copy of the Second

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Amended Complaint, and a copy of this Order and the Court’s January 11, 2018 Order

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If a Defendant is an officer or employee of the Arizona Department of
Corrections, Plaintiff shall 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.

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(Doc. 36) for future use.
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The United States Marshal must notify unserved Defendants of the

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commencement of this action and request waiver of service of the summons pursuant to

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Fed. R. Civ. P. 4(d). The notice to Defendants must include a copy of this Order and the

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Court’s January 11, 2018 Order (Doc. 36). The Marshal must immediately file signed

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waivers of service of the summons. If a waiver of service of summons is returned as

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

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for waiver was sent by the Marshal, the Marshal must:

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(a) Personally serve copies of the Summons, Second Amended Complaint,

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this Order, and the Court’s January 11, 2018 Order (Doc. 36), upon Defendants pursuant

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to Fed. R. Civ. P. 4(e)(2); and

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(b) Within 10 days after personal service is effected, file the return of service
for Defendants, along with evidence of the attempt to secure a waiver of service of the
summons and of the costs subsequently incurred in effecting service upon Defendants.
The costs of service must be enumerated on the return of service form (USM-285) and
must include the costs incurred by the Marshal for photocopying additional copies of
the Summons, Second Amended Complaint, this Order, and the Court’s January 11,
2018 Order (Doc. 36) and for preparing new process receipt and return forms (USM285), if required.

Costs of service will be taxed against the personally served

Defendants pursuant to Fed. R. Civ. P. 4(d)(2), unless otherwise ordered by the Court.

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6. A Defendant who agrees to waive service of the Summons and Second
Amended Complaint must return the signed waiver forms to the United States
Marshal, not the Plaintiff.
7. Defendants must answer the Second Amended Complaint or otherwise respond
by appropriate motion within the time provided by the applicable provisions of Fed.
R. Civ. P. 12(a).
8. Any answer or response must state the specific Defendant by name on whose

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

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

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Dated this 7th day of May, 2018.

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