Valencia #124129 v. Corizon LLC

Filing 34

ORDER - IT IS ORDERED: (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Summary Judgment (Doc. 19 ) and Defendant's Motion for Summary Judgment (Doc. 26 ). (2) Plaintiff's Motion for Summary Judgmen t (Doc. 19 ) is denied. (3) Defendant's Motion for Summary Judgment (Doc. 26 ) is granted, and the action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. (See document for complete details). Signed by Senior Judge David G Campbell on 5/20/19. (SLQ)

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MGD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Nidez Valencia, Jr.,

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No. CV 17-03632-PHX-DGC (JZB)

Plaintiff,
v.

ORDER

Corizon, LLC,
Defendant.

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Plaintiff Gregory Nidez Valencia, Jr., who is currently confined in Arizona State

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Prison Complex-Lewis, brought this civil rights action pursuant to 42 U.S.C. § 1983 against

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prison healthcare provider Corizon, LLC regarding the treatment of Plaintiff’s Hepatitis C.

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(Doc. 1.) The parties have filed cross Motions for Summary Judgment.1 (Docs. 19, 26.)

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The Court will deny Plaintiff’s Motion for Summary Judgment, grant Defendant’s Motion

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for Summary Judgment, and terminate this action.

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I.

Background

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

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determined that Plaintiff stated an Eighth Amendment medical care claim and directed

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Defendant to answer. (Doc. 6.) Plaintiff seeks declaratory and injunctive relief and his

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costs of suit. (Doc. 1.)

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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 to Defendant’s
Motion. (Doc. 28.)

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II.

Legal Standards

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A.

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

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

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movant bears the initial responsibility of presenting the basis for its motion and identifying

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those portions of the record, together with affidavits, if any, that it believes demonstrate

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the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

Summary Judgment

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If the movant fails to carry its initial burden of production, the nonmovant need not

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produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,

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1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts

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to the nonmovant to demonstrate the existence of a factual dispute and that the fact in

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contention is material (a fact that might affect the outcome of the suit under the governing

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law), and that the dispute is genuine (the evidence is such that a reasonable jury could

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return a verdict for the nonmovant). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

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250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995).

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The nonmovant need not establish a material issue of fact conclusively in its favor, First

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

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

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Indus. 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. In its analysis, the court must believe the nonmovant’s evidence and draw

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all inferences in the nonmovant’s favor. Id. at 255.

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B.

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To prevail on an Eighth Amendment medical claim, a prisoner must demonstrate

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“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs

Eighth Amendment

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to this analysis: an objective prong and a subjective prong. As to the objective prong, a

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prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations omitted).

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A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs.,

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Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal citation omitted).

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Indications that a prisoner has a serious medical need include “[t]he existence of an injury

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that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s

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daily activities; or the existence of chronic and substantial pain.” McGuckin, 974 F.2d at

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1059-60.

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As to the subjective prong, a prisoner must show that the defendant’s response to

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that need was deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with

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deliberate indifference if he “knows of and disregards an excessive risk to inmate health or

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safety.” Farmer, 511 U.S. at 837. To satisfy the knowledge component, “the official must

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

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serious harm exists, and he must also draw the inference.” Id. “Prison officials are

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deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or

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intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th

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Cir.2002) (internal citations and quotation marks omitted), or when they fail to respond to

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a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. But the deliberate-

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indifference doctrine is limited. An inadvertent failure to provide adequate medical care

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or negligence in diagnosing or treating a medical condition do not support an Eighth

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Amendment claim. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citations

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omitted); see Estelle, 429 U.S. at 106 (negligence does not rise to the level of a

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constitutional violation). Further, a mere difference in medical opinion does not establish

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deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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Finally, even if deliberate indifference is shown, to support an Eighth Amendment

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claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at

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1096; see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing

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medical treatment does not constitute Eighth Amendment violation unless delay was

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harmful).

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To prevail on a claim against Corizon as a private entity serving a traditional public

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function, Plaintiff must meet the test articulated in Monell v. Department of Social Services

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of City of New York, 436 U.S. 658, 690-94 (1978). Tsao v. Desert Palace, Inc., 698 F.3d

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1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state

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law). Plaintiff must show that an official policy or custom caused the constitutional

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violation. Monell, 436 U.S. at 694. To make this showing, he must demonstrate that (1) he

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was deprived of a constitutional right; (2) Corizon had a policy or custom; (3) the policy

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or custom amounted to deliberate indifference to Plaintiff’s constitutional right; and (4) the

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policy or custom was the moving force behind the constitutional violation. Mabe v. San

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Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001).

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Further, if the policy or custom in question is an unwritten one, the plaintiff must show that

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it is so “persistent and widespread” that it constitutes a “permanent and well settled”

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practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,

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167-68 (1970)). “Liability for improper custom may not be predicated on isolated or

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sporadic incidents; it must be founded upon practices of sufficient duration, frequency and

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consistency that the conduct has become a traditional method of carrying out policy.”

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Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

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III.

Facts

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A.

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Defendant follows the recommendations set forth in the Bureau of Prisons’ Clinical

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Guidance Manual—Evaluation and Management of Chronic Hepatitis C Virus (HCV)

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Infection (“BOP Manual”). (Doc. 22 (Pl.’s Statement of Facts) ¶ 12.) The BOP Manual,

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adopted by the Arizona Department of Corrections (ADC) and Corizon, “contains a

Defendant’s Hepatitis C Treatment Policies

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comprehensive framework for prioritizing prisoners for HCV treatment so that those with

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the greatest need are identified and treated first.” (Doc. 25 (Def.’s Separate Statement of

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Facts) ¶ 6 (emphasis in original).) According to a report by Gilead Science (“Gilead

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Report”), the challenges facing prisons in treating prisoners infected with HCV include

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budgetary constraints, the high cost of treatment, and the fact that prisoner are up to thirteen

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times more likely to have detectible levels of HCV in the blood than the general population.

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(Id. ¶ 5.) The ADC’s “Clinical Practice Guidelines for the Prevention and Treatment for

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Viral Hepatitis C (2017)” estimates that approximately 23% of ADC inmates are infected

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with HCV. (Id. ¶ 21.)

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Progression from chronic HCV infection to fibrosis—and eventually, cirrhosis—

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may take years in some patients, decades in others, or may not occur at all. (Id. ¶ 7.) Most

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complications from HCV infection occur in people with cirrhosis. Therefore, assessing for

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cirrhosis is important for prioritizing treatment. (Id. ¶¶ 8, 9.)

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To track the progression of HCV infection, the BOP Manual uses a prisoner’s APRI

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score, which is determined from the results of two blood tests that measure the AST

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(aspartate aminotransferase) and platelet counts in the blood and is a less expensive and

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less invasive means of assessing fibrosis than a liver biopsy. (Id. ¶¶ 10, 11.) The Gilead

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Report also recognizes that the severity of liver disease for people with HCV can be

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estimated by using the APRI score and the Fibrosis-4 Index. (Id. ¶ 12.) Warning signs of

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liver inflammation can include fatigue, weakness, loss of appetite, nausea, vomiting,

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jaundice, and discolored feces. (Id. ¶ 19.)

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Those prisoners with “advanced hepatic fibrosis,” liver transplant patients, and

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those with co-morbid medical conditions are the highest priority (Priority Level One) for

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treatment. (Id. ¶ 13.) Advanced hepatic fibrosis is demonstrated through either an APRI

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score greater than 2, a “Metavir or Batts/Ludwig stage 3 or 4 on liver biopsy,” or known

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or suspected cirrhosis. (Id. ¶ 14.) Included in the Priority Level One category are prisoners

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who have received liver transplants, have certain co-morbid medical conditions,

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immunosuppressed patients, and those who had started treatment when they were

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incarcerated. (Id. ¶ 15.) Priority Level Two is the intermediate priority category and

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includes those with an APRI score greater than 1.0 and/or stage 2 fibrosis on a liver biopsy2,

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or have certain co-morbid conditions including liver disease, diabetes, and chronic kidney

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disease. (Id. ¶ 16.) Priority Level Three is the lowest priority for treatment and includes

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those with APRI scores less than 1.0 or with stage 0−1 fibrosis on a liver biopsy. (Id. ¶ 17.)

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Defendant’s Hepatitis C Committee, which decides whether to treat HCV-infected

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prisoners with antivirals, has applied additional factors when approving treatment,

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including the absence of risky behaviors, as evidenced by no disciplinary tickets for drug

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use or tattoos for one year. (Id. ¶ 24.)

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According to Plaintiff, Defendant has a custom of only considering patients with

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HCV for treatment via Direct Acting Antiviral medications (DAAs) if their APRI score is

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2.0 or higher and will not actually treat patients with DAAs unless they also have cirrhosis

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of the liver.3 (Doc. 22 ¶¶ 15, 16.)

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B.

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On June 12, 2017, Plaintiff was evaluated by Nurse Practitioner (NP) Baskas for a

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new diagnosis of HCV, which Plaintiff reported he likely contracted through IV drug use.

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(Doc. 25 at 3 ¶ 1.) Plaintiff denied any abdomen pain, distention, nausea, vomiting,

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diarrhea, bilateral lower edema, or jaundice. (Id.) His most recent labs, taken in May 2017,

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showed an APRI score of 0.24. (Id.) Plaintiff was educated on avoiding risky behaviors

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related to HCV, and the plan was to monitor his condition through the chronic care clinic

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with new labs taken prior to each chronic care appointment. (Id.)

Plaintiff’s HCV Treatment

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On November 9, 2017, Plaintiff’s APRI score was 0.41, and he reported that he

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possibly acquired HCV through drug use or tattoos obtained while in prison. (Id. ¶ 2.)

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Plaintiff reported symptoms of chronic right side upper abdominal pain, swelling, bleeding,

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Because APRI scores predict the presence of cirrhosis, liver biopsies are not
required. (Doc. 25 ¶ 18.)
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Defendant disputes these statements, but does not set forth the nature of the
disputes or cite any evidence in support of its position. (See Doc. 25 ¶¶ 15, 16.)
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bruising problems, jaundice, leg swelling, fatigue, and loss of appetite. (Id.) Upon

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examination, there was no abdomen tenderness, sclera icteric (jaundice), or peripheral

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edema noted. (Id.) NP Boryczka wrote that Plaintiff was not a candidate for treatment

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based on his most recent APRI score of 0.41, and the plan was to monitor Plaintiff for

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complications of HCV and to determine if he was a candidate for HCV treatment. (Id.)

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Boryczka ordered Hepatitis labs, but Plaintiff refused the labs. He wrote on the refusal

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form that he refused because he was “sick with the flu.” (Id.)

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On May 20, 2018, Plaintiff saw NP Ende, who examined Plaintiff and noted that

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Plaintiff’s abdomen was non-tender and non-distended and no jaundice was noted. (Id.

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¶ 3.) Plaintiff’s APRI score was 1.317, and labs were ordered. (Id.) The plan of care was

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to monitor Plaintiff’s APRI score. (Id.) Plaintiff asserts in a Declaration that Ende seemed

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concerned about the escalation in Plaintiff’s APRI score because it “was an indication of

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reinfection of the HCV.” (Doc. 20 ¶ 22.) Plaintiff told Ende that he had not received any

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new tattoos, used any drug needles, did not engage in homosexual activity, and that he had

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just given a clean urine sample on March 23, 2018. (Id. ¶ 23.) Plaintiff states that an

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ultrasound was conducted and, according to Ende, “all checked out well.” (Id. ¶ 24.)

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Plaintiff’s labs were drawn on October 1, 2018 and his APRI score was 0.581.
(Doc. 25 at 4 ¶ 4.)

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Plaintiff states in his Declaration that he believes the HCV “may be taking its toll

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on [his] liver” because he can think of no other reason why his APRI score would

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quadruple. (Doc. 20 ¶ 25.) Plaintiff states that the disease significantly affects his daily

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activities – he can no longer exercise due to fatigue and joint pain, he cannot write for very

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long due to fatigue, he suffers abdominal pain and loss of appetite, which has resulted in

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weight loss, and his depression is aggravated by the disease, which led to him being placed

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on suicide watch in January 2018 for the first time in 10 years. (Id. ¶¶ 26-30.)

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Plaintiff asserts that he is currently not receiving any medication or treatment for

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his HCV. (Doc. 22 ¶¶ 30, 31.) Defendant disputes these statements, asserting that Plaintiff

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“is continuously being evaluated and assessed and his Hepatitis C is continuously being

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monitored.” (Doc. 25 ¶¶ 30, 31.)

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IV.

Discussion

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A.

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There is no dispute that Plaintiff’s HCV constitutes a serious medical need.

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Moreover, Plaintiff’s treatment and medical records suggest that his condition has been

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worthy of review or treatment. The Court’s analysis, therefore, will focus on whether

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Defendant’s response to Plaintiff’s HCV rises to the level of deliberate indifference.

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B.

Serious Medical Need

Deliberate Indifference

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Plaintiff argues that Defendant will only consider treating HCV with DAA

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medications if the prisoner’s APRI score is 2.0 or higher and the prisoner has cirrhosis of

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the liver. (Doc. 21 at 3-4.) Plaintiff contends that without receiving the DAAs, his APRI

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score will continue to rise and he will possibly suffer permanent liver damage. (Id. at 5.)

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Plaintiff argues that the BOP’s guidelines, which Defendant follows, are not “the supreme

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law of the land” or a doctor’s order, that they are for informational purposes only, and that

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“treatment decisions are patient specific.” (Id.) Plaintiff states that his APRI score

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quadrupled in a six-month period, even though he did not use drugs, get tattoos, or engage

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in homosexual activity, and this increase “strongly implies that because he has not received

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any treatment for HCV, the plaintiff is at a substantial risk of serious harm caused by the

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disease.” (Id. at 6.) Plaintiff argues that the “disease appears to be affecting the Plaintiff

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seriously for unknown reasons,” which “demonstrate[s] a strong need for immediate

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treatment with appropriate DAA medications as a ‘patient-specific’ order.” (Id.)

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Defendant argues that since Plaintiff’s June 2017 diagnosis of HCV, the progression

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of Plaintiff’s disease has been carefully monitored through chronic care labs and chronic

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care encounters. (Doc. 26 at 8.) Defendant contends that although Plaintiff’s APRI score

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was “briefly in Priority Level Two,” providers monitored his higher APRI scores and it

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went down from 1.317 to .581. (Id.) Defendant asserts that there is no evidence that

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Plaintiff suffered any co-morbid condition, no documentation of any warning signs of liver

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damage, and providers noted the presence of prison tattoos on Plaintiff, which they contend

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“lower his chances for treatment due to his risky behavior.” (Id.)

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Absent any medical evidence that Plaintiff is likely to suffer serious harm without

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immediate treatment, Plaintiff fails to create a triable issue of fact that, at this stage,

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continued monitoring via regular lab tests and chronic care visits while he is at the lowest

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priority level for HCV treatment amounts to deliberate indifference to a substantial risk of

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serious harm. Plaintiff has not shown that Defendant’s course of treatment is medically

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unacceptable or taken in conscious disregard of an excessive risk to his health. Plaintiff’s

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disagreement with the course of care does not amount to deliberate indifference. See

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A mere difference of opinion does not

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amount to deliberate indifference to serious medical needs.”). Plaintiff’s speculation that

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his APRI score will continue to rise and possibly cause permanent liver damage is likewise

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insufficient to create a genuine issue of material fact that his course of treatment is

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deliberately indifferent to his serious medical needs. Caribbean Marine Servs. Co., Inc. v.

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Baldrige, 844 F.2d 668, 674 (9th 1988) (speculative injury is not irreparable injury

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sufficient for a preliminary injunction).

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On the current record, there is no genuine issue of material fact that Defendant’s

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policy or custom of treating HCV amounts to deliberate indifference to Plaintiff’s serious

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medical needs. Therefore, the Court will deny Plaintiff’s Motion for Summary Judgment

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and will Defendant’s Motion for Summary Judgment.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion

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for Summary Judgment (Doc. 19) and Defendant’s Motion for Summary Judgment

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(Doc. 26).

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(2)

Plaintiff’s Motion for Summary Judgment (Doc. 19) is denied.

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(3)

Defendant’s Motion for Summary Judgment (Doc. 26) is granted, and the

action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.
Dated this 20th day of May, 2019.

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