Palmer v. Wexford Medical et al

Filing 35

ORDER the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for a Preliminary Injunction and Request for Hearing 12 . Granting 32 Defendant's Motion for Clarification; Defendant need not file a response to Plaintiff's Statement of Facts; denying 12 Motion for Preliminary Injunction and Request for Hearing. Signed by Judge David G Campbell on 7/22/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Donald Ray Palmer,

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No. CV 12-8214-PCT-DGC (MHB)
Plaintiff,

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vs.

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Wexford Medical, et al.,

ORDER

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Defendants.

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Plaintiff Donald Ray Palmer, who is confined in the Arizona State Prison

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Complex-Kaibab in Winslow, Arizona, filed this civil rights case against Arizona

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Department of Corrections (ADC) employees and Wexford Health Sources (Wexford)

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employees. Plaintiff’s Motion for a Preliminary Injunction and Request for Hearing is

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now before the Court. (Doc. 12.) The Court will deny the motion.

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I.

Background

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In his First Amended Complaint, Plaintiff alleges that he suffers from serious knee

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injuries that cause him unbearable pain and limit his ability to walk and navigate the hilly

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terrain of the Winslow Complex. He alleges that he requested, and his doctor supported,

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a transfer to another Complex with flat terrain and handicap access. In order to receive

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the transfer, he was told that he would have to cancel an appointment with an outside

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specialist and resume treatment after his move. Plaintiff canceled the appointment and

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requested a transfer.

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Plaintiff alleges in Counts I and II that Defendants Stowell and Ryan violated his

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Eighth Amendment rights when they were deliberately indifferent to his medical needs

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by both denying his transfer to a new unit and refusing to reschedule Plaintiff’s

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appointment with the specialist. Plaintiff claims that as a result of Defendants’ actions he

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suffers extreme pain that is aggravated by the difficult terrain at the Winslow Complex

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and the lack of handicap accessible facilities.

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injunctive relief.

Plaintiff seeks money damages and

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The Court directed Defendants Stowell and Ryan to answer the First Amended

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Complaint. (Doc. 13.) In addition to filing his First Amended Complaint, Plaintiff moved

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for a Preliminary Injunction directing Defendants to transfer him to a more appropriate

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unit. The Court directed Defendants to respond to Plaintiff’s Motion for a Preliminary

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Injunction. (Doc. 14.)

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II.

Legal Standards

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A.

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A preliminary injunction is an extraordinary remedy “that should not be granted

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unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

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Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A. Miller, &

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M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)). An

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injunction may be granted only where the movant shows that “he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public

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interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking

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Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The movant has

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the burden of proof on each element of the test. Environmental Council of Sacramento v.

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Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). In addition, because the function of

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a preliminary injunction is to preserve the status quo pending a determination on the

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merits, Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988), there is heightened

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scrutiny where the movant seeks to alter rather than maintain the status quo. Dahl v.

Preliminary Injunction

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HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (holding that mandatory, as

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opposed to prohibitory, injunctions are “subject to a heightened scrutiny and should not

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be issued unless the facts and law clearly favor the moving party”).

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A preliminary injunction can also be granted when a plaintiff demonstrates that

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“serious questions going to the merits were raised and the balance of hardships tips

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sharply in [plaintiff’s] favor.” Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127,

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1134-35 (9th Cir. 2011), citing Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.

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2008) (en banc). This approach requires that the elements of the preliminary injunction

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test be balanced, so that a stronger showing of one element may offset a weaker showing

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of another. “‘[S]erious questions going to the merits’ and a balance of hardships that tips

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sharply towards the plaintiff can support issuance of a preliminary injunction, so long as

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the plaintiff also shows that there is a likelihood of irreparable injury and that the

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injunction is in the public interest.” Id. at 1135

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The Prison Litigation Reform Act (PLRA) also imposes requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials. “Preliminary

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injunctive relief must be narrowly drawn, extend no further than necessary to correct the

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harm the court finds requires preliminary relief, and be the least intrusive means

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necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Thus, § 3626(a)(2) limits the

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court’s power to grant preliminary injunctive relief to inmates; “no longer may courts

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grant or approve relief that binds prison administrators to do more than the constitutional

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minimum.” Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

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B.

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To prevail on a claim under the Eighth Amendment for prison medical care, a

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prisoner must demonstrate “deliberate indifference to serious medical needs.” Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104

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(1976)). A plaintiff must show (1) a “serious medical need” by demonstrating that failure

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to treat the condition could result in further significant injury or the unnecessary and

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wanton infliction of pain, and (2) that the defendant’s response was deliberately

Medical Claim

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indifferent.

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indifference, a prison official must both know of and disregard an excessive risk to

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inmate health; the official must both be aware of facts from which the inference could be

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

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical

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context may be shown by a purposeful act or failure to respond to a prisoner’s pain or

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possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096.

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III.

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Jett, 439 F.3d at 1096 (citations omitted).

To act with deliberate

Arguments and Analysis
A.

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Arguments
1.

Plaintiff

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Plaintiff reasserts the allegations in his First Amended Complaint. He alleges that

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Winslow has slopes, hills, stairs, uneven surfaces and no handicap access. (Doc. 11.)

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He also asserts that he can barely lift his leg or extend his knee without pain, that his knee

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is swollen and stiff every day, and that it is painful even when he is sitting. (Id. 14.)

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2.

Defendant Ryan1

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In support of his opposition to the motion (Doc. 19), Defendant submits the

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declarations of Zora Mata (Ex. A, Mata Decl.), Dr. Richard Rowe (Ex. B, Rowe Decl.),

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Alfreda Harris (Ex. C, Harris Decl.), and various medical and other records. Defendant

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asserts that because of Plaintiff’s close-custody classification, Plaintiff was housed at the

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Arizona State Prison Complex (ASPC) – Lewis from February 17, 2009 to May 29, 2012,

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and that when his classification was reduced to medium, he was transferred to ASPC–

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Winslow on May 29, 2012. (Mata Decl. ¶¶ 4-5.) Defendant asserts that the Offender

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Services Bureau, which is responsible for institutional assignments, is not aware of any

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medical issues that would restrict Plaintiff’s housing assignment. (Id. ¶¶ 3, 5.)

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Defendant contends that Plaintiff’s medical condition does not warrant special

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housing accommodations and his medical records do not indicate that he is ADA

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Defendant Stowell has not been served. (Doc. 30.)
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qualified or that he suffers from an inability to stand or walk. (Rowe Decl. ¶ 26.)

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Defendant argues that neither Defendant has been deliberately indifferent to serious

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medical needs and that prisoners do not have a constitutional right to be incarcerated at a

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particular correctional facility or to be transferred from one correctional facility to

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another. (Doc. 19.)

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Defendant details Plaintiff’s medical care regarding his knee. (Id. at 3-8.) He first

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complained of pain in his right knee on October 11, 2011, saying he had injured his right

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knee the year before and it was still swollen and hurt when he stood on it for a long time

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or turned sharply. (Rowe Decl. ¶ 4.) Plaintiff was seen by Dr. Merchant on October 25,

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2011, who assessed right knee instability and prescribed Ibuprofen 800 mg., requested a

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right knee sleeve, and ordered an MRI to rule out an anterior cruciate ligament (ACL)

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rupture. (Id.) An x-ray on January 23, 2012, revealed “no evidence of fracture or

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dislocation. No radiopaque foreign body. No evidence of joint effusion.” (Id. ¶ 7.) The

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MRI conducted the same date, showed:

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Complex tear in the posterior horn and body of the -lateral meniscus.
Subacute Bone bruise in the anterior tibial plateau with subchondral cystic
changes.
Small joint effusion.
The ACL and PCL [posterior cruciate ligament] are intact.

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(Id. ¶ 8.) On January 24, 2012, Plaintiff was issued an SNO for a large right knee sleeve.

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(Id. ¶ 9.) The SNO expired on January 24, 2013. (Id.) On February 7, 2012, Dr.

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Merchant requested an orthopedic surgery consult. (Id. ¶ 10.)

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On May 31, 2012, Plaintiff asked to see a doctor, complaining in a Health Needs

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Request (HNR) about difficulty getting around the yard. (Id. ¶ 11.) On June 5, 2012,

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Plaintiff advised the nurse practitioner that he injured his right knee two years ago and

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was told at that time that it was fractured and was waiting for it to be repaired but he was

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moved. (Id. ¶ 12.) He complained about pain, swelling, and walking on uneven terrain

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and stiffening of his knee. (Id.) His current medications were Terazosin 2 mg. and
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Ibuprofen 800 mg. as needed. (Id.) It was noted that Plaintiff had a limp of the right leg,

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no bruising of the right knee, mild swelling to the inner side of the right knee, and that

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Plaintiff displayed discomfort upon palpation to the inner/outer side of the right knee;

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there was occasional popping upon knee bends. (Id.) The popliteal pulse was strong and

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palpable. (Id.) There was full range of motion of the right foot and toe capillary refill in

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23 seconds. (Id.)

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On June 12, 2012, Plaintiff complained of knee pain. Dr. Gibula noted that

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Plaintiff first injured his knee two years ago when he landed angulated while playing

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basketball, he did not have surgery at that time, and he reinjured the knee one year later.

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(Id. ¶ 13.) Dr. Gibula noted that the January 2012 MRI showed serious pathology in the

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knee joint. (Id.) Plaintiff claimed that an orthopedic referral was made, but he was

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moved to this facility. (Id.) Plaintiff wore a brace on the right knee. (Id.) Dr. Gibula

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observed mild flexion/extension, no patellar tenderness, marked meniscus stress pain, and

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nearly full range of motion (slight extension limit). (Id.) Plaintiff was assessed with

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internal right knee derangement and a new referral for an orthopedic consult was

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requested. (Id.) Plaintiff was also prescribed Ibuprofen 800 mg. three times a day as

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needed. (Id.)

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Thereafter, on June 20, 2012, Dr. Gibula advised Plaintiff that he had spoken with

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staff and was advised that Plaintiff could not be placed on another yard at the Winslow

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Complex. (Harris Decl. ¶ 3.) He advised Plaintiff that he could be moved to another

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facility to have a level yard, but that the move would cancel his orthopedic appointment

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and he would have to start the process over. (Id.) On June 28 and July 2, 2012, Plaintiff

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advised Dr. Gibula that he would like to be moved to another yard and start the consult

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process over. (Id., Exs. 2 & 3.) Dr. Gibula requested staff to forward Plaintiff’s response

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to the clinical coordinator. (Id., Ex. 2.)

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On July 5, 2012, Plaintiff advised Dr. Gibula that Plaintiff signed a refusal for

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treatment canceling any further appointments due to his knee problems and stating that he

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wanted to be moved to a yard with no hills or holes. (Id., Ex. 4.) On July 16, he was
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advised by Stowell that all yards have stairs and slopes and that discomfort is not a

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medical need. (Id., Ex. 5.) On August 8, Stowell advised that “[m]any inmates on this

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complex have bad knees, ankles & feet and various other issues but these are not usually

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reason to move someone. Once [the provider] sees you together we can discuss the

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problem and try to bring some resolve to it.” (Id., Ex. 6.)

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On August 23, 2012, Plaintiff advised staff that he did not want to have any

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surgical intervention; just a yard with a single level. (Rowe Decl. ¶ 15.) Dr. Gibula

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explained to Plaintiff that he was advised that he did not have authority to move an

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inmate to another yard. (Id.) Plaintiff stated that he would be okay with another section

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of his current yard if security would allow it. (Id.) Dr. Gibula noted he would discuss

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this situation with administration. (Id.)

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On September 4, 2012, Dr. Gibula advised Plaintiff that according to the Facility

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Health Administrator, ADC does not transfer inmates to other facilities for the reason

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specified. (Harris Decl. ¶ 3, Ex. 8.) On September 11, 2012, in response to his grievance

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appeal, Plaintiff was advised by Stowell that:

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Dr. Gibula is a registry MD and is not aware of DOC policy and procedure.
Since we do not move inmates for reasons such as yours the information he
gave you was incorrect. Inmates are only moved to corridor facilities when
their healthcare cannot be maintained here, that is not the case with you.
You were scheduled with the Ortho Group and you refused that
appointment, that was your choice to make. You also reside in bed 2 which
gives you fairly level access to the outside with sidewalks to chow, library
and a long slope ramp to the rec field and flat side walks to access medical.

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(Id., Ex. 7.)
On October 26, 2012, Plaintiff was seen in response to his HNR requesting

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another knee sleeve.

(Rowe Decl. ¶¶ 16-17.)

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recommended that Plaintiff take care with his knee until he could be scheduled with a

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provider. (Id. ¶ 17.) On November 8, 2012, Dr. Gibula examined Plaintiff regarding a

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new knee brace. (Id. ¶ 18.) Dr. Gibula noted that Plaintiff’s knees had no edemas or
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After an examination, Nurse Lucek

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effusions, the right knee had pain with attempted full extension and marked meniscus

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strain tenderness, and Plaintiff claimed that the tibial tubercle hurt when he stood.

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Plaintiff was assessed with chronic knee pain and prescribed Ibuprofen and a knee brace

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with lateral reinforcements and a patellar hole was requested. (Id.) Plaintiff received the

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new knee sleeve on November 13, 2012, but it was too tight and the different size brace

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also did not fit. (Id. ¶ 19.) Plaintiff was scheduled for the health care provider for an

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evaluation and other options. (Id.)

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Plaintiff was seen by Dr. Gibula on November 20, 2012, to be evaluated for the

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knee sleeve issue. (Id. ¶ 20.) At this time, there was some effusion on the right knee

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without erythema or point tenderness. (Id.) ACL tension increased pain, meniscus stress

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did not. (Id.) Plaintiff was assessed with chronic knee pain and recurrent edema. (Id.)

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Dr. Gibula noted that he would order the right “clinical” knee brace. (Id.)

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On January 10, 2013, Plaintiff was issued an SNO for a knee sleeve; the SNO

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expires on January 20, 2029. (Id. ¶ 21.) On February 14, 2013, Plaintiff was seen for an

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orthopedic complaint, and it was noted that he had been having problems with torn

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medial ligament of his right knee for two years, treatment was conservative, and there

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was an increase in pain (continuous) and some instability. (Id. ¶ 22.) The knee did not

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have any edema or erythema. (Id.) Adult Nurse Practitioner (ANP) Gallegos assessed

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Plaintiff with right knee pain and medial ligament tear treatment plan was to discontinue

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Motrin/Ibuprofen, prescribed Naproxen 500 mg twice a day, quad muscle exercises, and

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for Plaintiff to follow-up in four weeks. (Id.)

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Plaintiff was next seen on March 14, 2013, by ANP Gallegos for an orthopedic

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complaint follow-up. (Id. ¶ 23.) The knee had pain and was unstable, pain/trace edema,

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and decreased range of motion. (Id.) He was assessed with medial ligament tear,

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arthritis, and knee instability. (Id.) The Naproxen was discontinued and Meloxicam 7.5

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mg. twice a day was prescribed. An orthopedic consult was requested. (Id.)

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Plaintiff submitted an HNR on April 8, 2013, complaining that Meloxicam was

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not working for his knee pain. (Id. ¶ 24.) He requested a prescription for Ibuprofen.

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(Id.) He was scheduled for a medical appointment. (Id.)

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On May 8, 2013, a consultation request was submitted requesting an orthopedic

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consult for Plaintiff’s right medial ligament tear, and a copy of the request was given to

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the clinical coordinator on May 9, 2013, for processing. (Id. ¶ 25.)

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Defendant argues that Plaintiff is not entitled to a preliminary injunction because

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there are no facts that indicate that either Defendant possessed the requisite state of mind

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for a deliberate indifference claim. (Doc. 19 at 10.) There is no medical reason for

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Plaintiff to be transferred to another prison complex. (Id., Rowe Decl. ¶ 26.) Defendants

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are not denying Plaintiff an orthopedic consultation for his right knee, and prisoners do

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not have a constitutional right to be incarcerated at a particular correctional facility or to

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be transferred from one correctional facility to another. (Doc. 19 at 11.)

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3.

Plaintiff’s Reply

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Plaintiff submits a reply with exhibits and a Statement of Facts.2 (Docs. 28, 29.)

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Plaintiff does not dispute most of the facts alleged by Defendant. He states that there is

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no evidence that when he was transferred to Winslow, the Offender Services Bureau

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checked with medical staff to see if the transfer to another institution was in Plaintiff’s

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best interest. (Doc. 28 at 1-2.) He restates the medical appointments and findings set out

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by Defendants. (Id. at 3-9.) He also sets out the discussions he had and grievances he

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wrote regarding his housing assignment; he spoke with the Deputy Warden on June 14,

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2012. (Id. at 5-6.) The Deputy Warden responded that she had spoken with Stowell, who

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said that the housing assignment was appropriate. (Id. at 6.) Stowell sent Plaintiff a

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response stating that many inmates had bad knees and that once the provider sees

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Plaintiff, they could discuss a resolution. (Id. at 7.) Plaintiff asserts that this never

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Defendant moves for clarification regarding whether he needs to file a response
to Plaintiff’s Statement of Facts. (Doc. 32.) The Court finds that no response is
necessary.
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happened. Plaintiff details other grievances that he sent and responses received. (Id. at

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7-9.) One response was from Ryan, denying the grievance insofar as Plaintiff sought to

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be moved and upholding the grievance regarding Plaintiff’s complaint that the

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consultation was not rescheduled after Plaintiff refused it. (Id., Ex. J, Ryan resp., dated

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Feb. 8, 2013.) Ryan directed that Plaintiff be seen by a local provider within 30 days.

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(Id.)

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Plaintiff also asserts that he was seen in May 2013 by Dr. Hamilton and informed

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Hamilton that he had tripped on rocky terrain. (Id. at 9.) Plaintiff also submits PSOF

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attaching a Radiographic Consultation Report, dated May 5, 2013, showing MRI

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findings. (Doc. 29, Ex. A.)

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Plaintiff argues that he has a serious medical condition and that Defendants were

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deliberately indifferent to his medical needs when they did not transfer him knowing he

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would suffer unnecessary pain. (Doc. 28 at 13-16.) He notes that Dr. Gibula agreed that

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transferring Plaintiff would be a good idea. (Id. at 14.)

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B.

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Plaintiff fails to show a likelihood of success on the merits, or the existence of

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serious questions, as to the denial of a transfer. Moreover, Plaintiff has no constitutional

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right to be housed at a particular prison facility. The Court finds that no hearing is

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necessary.

Analysis

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As noted above, to act with deliberate indifference a prison official must both

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know of and disregard an excessive risk to inmate health. The official must both be

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

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harm exists, and he must actually draw the inference.

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Although deliberate indifference in the medical context may be shown by failure to

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respond to a prisoner’s pain or possible medical need, Jett, 439 F.3d at 1096, differences

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in judgment between an inmate and prison medical personnel regarding an appropriate

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medical diagnosis or treatment are not enough to establish a deliberate-indifference

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claim. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
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Farmer, 511 U.S. at 837.

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Here, even if a prison doctor thought a move might be a good idea, that is not

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sufficient to support a claim of deliberate indifference against Defendant or the requested

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injunctive relief. Moreover, the Court cannot locate any such notation by the doctor in

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the medical records. The recent MRI report shows knee damage, but Plaintiff provides

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no evidence to establish what the report means in terms of his care or housing

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requirements. There is also no evidence that other facilities have significantly fewer

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slopes and stairs or less rocky terrain. Plaintiff has failed to establish anything more than

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his own belief that he must be moved to another facility.

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In addition, prison officials who actually knew of a substantial risk to inmate

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health or safety may be found free from liability if they responded reasonably to the risk,

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even if harm ultimately was not averted. Farmer, 511 U.S. at 845. Here, Ryan upheld

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Plaintiff’s grievance in part, directing that he be seen by a medical provider. In other

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words, Ryan did not ignore Plaintiff’s knee problem even though Ryan denied the request

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for a move. And Ryan relied on medical staff to make an assessment of Plaintiff’s need

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to be moved to another facility. Plaintiff has not shown that he is likely to prove that

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Defendants were deliberately indifferent to his medical needs. Nor has he raised serious

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questions about whether Defendants violated his constitutional rights.

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Plaintiff has no right to be housed at a particular facility. See Meachum v. Fano,

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427 U.S. 215, 224-25 (1976). The Court must defer to prison officials= expert judgments.

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Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). In Bell v. Wolfish, the Supreme

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Court explained:

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[T]he problems that arise in the day-to-day operation of a corrections
facility are not susceptible of easy solutions. Prison administrators
therefore should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and maintain institutional security.

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Norwood, 591 F.3d at 1066 (quoting Bell, 441 U.S. 520, 547 (1979). Deference requires

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“that neither judge [nor jury] freely substitute their judgment for that of officials who

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have made a considered choice.” Norwood, 1066-67 (quoting Whitley v. Albers, 475

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U.S. 312, 322 (1985).)

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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

for a Preliminary Injunction and Request for Hearing (Doc. 12).

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(2)

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is denied.

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(3)

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The Motion for a Preliminary Injunction and Request for Hearing (Doc. 12)

Defendant’s Motion for Clarification (Doc. 32) is granted; Defendant need

not file a response to Plaintiff’s Statement of Facts.
Dated this 22nd day of July, 2013.

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