Hambrick #108663 v. Unknown Party et al

Filing 96

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment 60 . Defendants' Motion for Summary Judgment 60 is granted. This action is terminated with prejudice and the Clerk of Court must enter judgment accordingly. Signed by Judge Michael T Liburdi on 3/16/2020. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Louis Hambrick, Jr.,

No. CV 18-00461-PHX-MTL (ESW)

Plaintiff,

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v.

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ORDER

Unknown Party, et al.,

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Defendants.

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Plaintiff James Hambrick brought this civil rights action pursuant to 42 U.S.C.

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§ 1983. (Doc. 1.) Defendants Gay, Ryan, and Headstream move for summary judgment,

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and Plaintiff opposes. (Docs. 60,90, 91.)

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judgment and dismiss this action with prejudice.

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I.

The Court will grant Defendants summary

Background

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Plaintiff’s claims stem from the medical care he received while in the custody of the

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Arizona Department of Corrections at the Arizona State Prison Complex (ASPC)-Eyman

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Meadows Unit in 2017 for a lump on the back of his neck. (Doc. 8 ¶ 3.) In Count One,

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Plaintiff alleges Defendant Gay violated his Eighth Amendment rights by refusing to order

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blood tests, x-rays, an MRI, or a biopsy of the lump on Plaintiff’s neck, (Id.) In Count

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Two, Plaintiff alleges Defendant Ryan violated his Eighth Amendment rights by failing

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“to intervene in [Plaintiff’s] medical situation, in order for Plaintiff to get the medical

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cancer screening for the lump on the back of his neck.” (Id. at 6.) Plaintiff claims

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Defendant Gay told him that “the policies that Defendant[] Charles L. Ryan established . .

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. allowed her to make decisions on whether Plaintiff would get medical treatment or how

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much medical treatment he would get, is [sic] how she based her decision on not getting

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Plaintiff medical treatment for his cancer in the back of his head.” (Id. at 5.)

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In Count Three, Plaintiff alleges Defendant Headstream violated his Eighth

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Amendment rights in her November 29, 2017 response to Plaintiff. Plaintiff claims

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Defendant Headstream stated that “she supports the medical policies that [were]

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established by Defendant Ryan that allows Corizon Health Corporation to run the ADOC

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inmate medical system.” (Id. at 7.) Plaintiff claims Defendant Headstream was deliberately

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indifferent to his serious medical needs because she was aware of Plaintiff’s concern about

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cancer from having reviewed his medical records, but failed to order treatment for Plaintiff.

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Plaintiff further alleges Defendant Headstream “has the power to tell the Corizon doctors

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[sic] after she reads the inmate files to get them medical treatment.” (Id. at 8.) Plaintiff

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claims Defendant Headstream failed to research his “entire medical file” and “failed to

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order Doctor Gay to get Plaintiff’s medical treatment for his cancer on the back on his

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neck.” (Id.)

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Defendants now seek summary judgment as to the claims in this action.
II.

Summary Judgment Standard

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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.

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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, i.e., a fact that might affect the outcome of the suit under the

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governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable

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jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th

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Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its

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favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however,

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it must “come forward with specific facts showing that there is a genuine issue for trial.”

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

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citation omitted); see Fed. R. Civ. P. 56(c)(1).

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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. 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.

Facts

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In 2008, Plaintiff was seen at the Chandler Regional Medical Center for imaging to

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determine whether he had an abscess on the back of his neck. (Doc. 61 ¶ 1; Doc. 90 at 5:9-

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15.) Plaintiff underwent diagnostic imaging and no abscess was found. (Doc. 61 ¶ 1.) In

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June 2017, Plaintiff submitted a Health Needs Request (HNR) complaining of headaches

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and neck pain and indicating he had a bump on the back of his neck. (Doc. 61 ¶ 2; Doc.

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90 at 5:16-19.) The next day, Nurse Fillicetti saw Plaintiff and determined that his right

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posterior scalp had a small amount of swelling, about the size of a dime. (Doc. 61 ¶ 3;

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Doc. 90 at 5:20-25.) About a week later, Plaintiff submitted another HNR, complaining

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that the lump was still there, and that he was experiencing headaches and neck pain. (Doc.

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61 ¶ 4; Doc. 90 at 5:26.) Plaintiff saw Nurse Practitioner Hahn a few days later to address

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his knee pain. (Doc. 61 ¶ 4; Doc. 90 at 6:1-4.)

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In late October, Plaintiff submitted an information resolution to his CO III,

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complaining that he had a lump on the back of his neck, but nothing was done and he would

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like a CT or MRI. (Doc. 61 ¶ 7; Doc. 90 at 6:6-10.) Nurse Ruehrup responded to Plaintiff’s

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informal complaint on November 7, noting that his lump was examined in late June and

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that Plaintiff was seen for knee pain in mid-July. (Doc. 61 ¶ 8; Doc. 90 at 6:11-19.) Nurse

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Ruehrup placed Plaintiff on the nurse’s line for his headaches and lump to be evaluated

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again. (Doc. 61 ¶ 8; Doc. 90 at 6:11-19.) Plaintiff saw Nurse Gallant the same day. (Doc.

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61 ¶ 9; Doc. 90 at 6:20.) Plaintiff reported a “non-painful” lump on the nape of his neck

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and that he had an abscess in 2008 that was drained, but he believed packing gauze was

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still lodged despite a procedure to remove it. (Doc. 61 ¶ 9; Doc. 90 at 6:20.) Nurse Gallant

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noted the area was warm with no redness, rash, or pain. Plaintiff was referred to the

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provider line and instructed to continue to take his ibuprofen for headaches. (Doc. 61 ¶ 9;

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Doc. 90 at 6:20.)

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Defendant Gay examined Plaintiff on November 20. Plaintiff stated that the lump

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had been there for nine years and that there was previously a skin infection at the site.

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Plaintiff denied having a fever, chills, redness, or drainage. (Doc. 61 ¶ 10; Doc. 90 at 6:21-

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28.) Defendant Gay documented that the bump was raised, flesh tone, firm, and measured

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three inches in length. (Doc. 61 ¶ 10; Doc. 90 at 6:21-28.) She further noted that there

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were no hair changes or edema. She diagnosed a benign lipomatous neoplasm, possible

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scar tissue, or keloid scalp lesion, but no treatment was indicated. (Doc. 61 ¶ 10; Doc. 90

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at 6:21-28.) She explained the possible diagnoses to Plaintiff and instructed him to return

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if his condition changed. (Doc. 61 ¶ 10; Doc. 90 at 6:21-28.)

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Plaintiff then sent an informal complaint to Defendant Ryan, complaining that he

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had a life-threatening condition because surgical gauze was left in his neck and he required

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emergency surgery. (Doc. 61 ¶ 11; Doc. 90 at 7:2-11.) Defendant Headstream responded

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to Plaintiff on Defendant Ryan’s behalf. She reviewed Plaintiff’s medical records, noted

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that Plaintiff was recently evaluated for a non-painful lump on his neck, which was

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diagnosed as either scar tissue or a keloid scalp lesion and that neither diagnosis required

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treatment. (Doc. 61 ¶ 12; Doc. 90 at 7:12-15.) Defendant Headstream instructed Plaintiff

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to continue to submit a new HNR if he had questions or concerns. (Doc. 61 ¶ 12; Doc. 90

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at 7:12-15.)

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IV.

Discussion

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A.

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Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted

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

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1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two

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prongs to the deliberate-indifference analysis: an objective prong and a subjective prong.

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

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omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could

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

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McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds

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

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citation omitted). Examples of 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.

Eighth Amendment

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Second, a prisoner must show that the defendant’s response to that need was

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deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference

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if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the

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knowledge component, the official must both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference.”

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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. Deliberate indifference

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is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety.

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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“Prison officials are

“Neither negligence nor gross negligence will constitute

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Farmer, 511 U.S. at 835.

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deliberate indifference.” Clement v. California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105

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(N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)

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(mere claims of “indifference,” “negligence,” or “medical malpractice” do not support a

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

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to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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A mere delay in medical care, without more, is insufficient to state a claim against prison

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officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs,

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766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must

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rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

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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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B.

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Defendants argue that NP Gay appropriately assessed the lump on Plaintiff’s neck,

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determined that he had scar tissue or a lipoma, that he should continue to take his ibuprofen

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for any headaches, and that further treatment was not necessary. She specifically disputes

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that she ever told Plaintiff that he was suffering from cancer or that “other inmates had

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more serious medical problems than he had and that he needed to wait his turn.” (Doc. 60

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at 10-12.)

Nurse Practitioner Gay

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In Response, Plaintiff argues that Defendant Gay did nothing to treat the lump on

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the back of his neck and that he suffered a delay of five months in between appointments

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and, as a result, the care he received was deliberately indifferent. But to establish deliberate

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indifference, Plaintiff must come forward with evidence that “the course of treatment the

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doctors chose was medically unacceptable under the circumstances” and that the individual

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“chose this course in conscious disregard of an excessive risk to plaintiff’s health.”

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). The crux of Plaintiff’s claim is that

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he believes diagnostic testing and treatment was or is necessary for the lump on his neck

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and the delay he experienced between June and November ipso facto constitutes deliberate

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indifference. But one fatal flaw in Plaintiff’s argument is there is simply no evidence in

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the record that the lump on his neck is anything other than a benign lipoma or keloid lesion

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that does not require treatment. As a result, Plaintiff’s claim is a disagreement with

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Defendant Gay’s decision not to treat the lump, which is insufficient to defeat summary

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judgment. And Plaintiff offers no evidence apart from his own conclusory assertions to

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support his claim that another course of action was required. See Toguchi v. Chung, 391

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F.3d 1051, 1058 (9th Cir. 2004) (“[A] mere ‘difference of medical opinion . . . [is]

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insufficient, as a matter of law, to establish deliberate indifference.’”) (citations omitted).

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To the extent that Plaintiff contends that Defendant Gay told him it could be cancer

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does not preclude summary judgment. This does not mean that she thought it was cancer

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and chose not to treat it. Indeed, Plaintiff himself did not believe he had cancer, but thought

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he had “surgical gauze” left in his neck from a prior procedure. (Doc. 61, Ex. J at 52.) Nor

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does Plaintiff dispute that he was provided ibuprofen to address his headaches and neck

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pain. (Doc. 61, Ex. H at 44.) In short, to defeat summary judgment, Plaintiff must present

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evidence sufficient for a reasonable jury to return a verdict in his favor. See Anderson, 477

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U.S. at 248.

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allegations. Accordingly, Gay is entitled to summary judgment.

Plaintiff fails to introduce any evidence apart from his own conclusory

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C.

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Under Ninth Circuit law, a defendant can be liable for failure to act. Taylor v. List,

Ryan and Headstream

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880 F.2d 1040, 1045 (9th Cir. 1989).

Generally, whether a defendant’s denial of

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administrative grievances is sufficient to state a claim depends on several facts, including

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whether the alleged constitutional violation was ongoing, see e.g., Flanory v. Bonn, 604

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F.3d 249, 256 (6th Cir. 2010), and whether the defendant who responded to the grievance

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had authority to take action to remedy the alleged violation, see Bonner v. Outlaw, 552

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F.3d 673, 679 (8th Cir. 2009).

However, regarding medical decisions, prison

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administrators generally are not deliberately indifferent when their failure to act is based

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upon a medical evaluation; that is, because administrators are not doctors, they have no

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duty to investigate or override decisions of medical staff. Cf. Peralta v. Dillard, 744 F.3d

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1076, 1086 (9th Cir. 2014) (finding no deliberate indifference where supervisor signed off

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on plaintiff’s grievance appeal without independently reviewing plaintiff’s claims because

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the supervisor had no independent experience in particular area of medicine and relied on

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the medical opinions of staff with the relevant expertise).

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In denying Plaintiff’s grievances, Defendant Ryan and his designee Defendant

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Headstream relied on the professional medical judgment of Plaintiff’s provider, who had

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determined that treatment was not indicated for the benign lipoma or keloid lesion on

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Plaintiff’s neck. This reliance on the provider’s conclusions was reasonable, and merely

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denying Plaintiff’s grievances does not amount to deliberate indifference. Accordingly,

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there is no genuine dispute of material fact concerning whether Defendants Ryan or

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Headstream were deliberately indifferent to Plaintiff’s serious medical needs. The Court

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will therefore grant Defendants’ Motion for Summary Judgment in favor of Defendants

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Ryan and Headstream.

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IT IS ORDERED:

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(1)

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

for Summary Judgment (Doc. 60).

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(2)

Defendants’ Motion for Summary Judgment (Doc. 60) is granted.

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(3)

This action is terminated with prejudice and the Clerk of Court must enter

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judgment accordingly.
Dated this 16th day of March, 2020.

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