Palmer v. Wexford Medical et al

Filing 81

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendant Ryan's Motion for Summary Judgment 59 and Defendant Stowell's Motion for Summary Judgment 61 . Defendant Ryan's Motion for Summary Judgment 59 is grant ed; Count II is dismissed with prejudice. Defendant Stowell's Motion for Summary judgment 61 is granted in part and denied in part as follows: (a) the Motion is granted as to Count I, and Count I is dismissed with prejudice; and (b) the Motion is denied as to the request for attorneys fees under 42 U.S.C. § 1988. (4) The Clerk of Court must enter judgment accordingly and terminate the action. Signed by Judge Steven P Logan on 11/6/2014.(ALS)

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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donald Ray Palmer, 10 11 12 No. CV 12-08214-PCT-SPL (MHB) Plaintiff, vs. ORDER Wexford Medical, et al., 13 Defendants. 14 15 Plaintiff Donald Ray Palmer brought this pro se civil rights action under 42 U.S.C. 16 § 1983 against Charles L. Ryan, Arizona Department of Corrections (ADC) Director, and 17 Elise Stowell, former complex manager for Wexford Health, the health care company 18 contracted to provide medical services to prisoners (Doc. 1). Before the Court are Ryan’s 19 and Stowell’s separate Motions for Summary Judgment (Docs. 59, 61). 20 The Court will grant the motions and terminate the action. 21 I. Background 22 Palmer’s claims arose during his confinement at the Arizona State Prison Complex 23 (ASPC)—Winslow, Kaibab North Unit (Doc. 11). Palmer alleged that he suffers from 24 serious knee injuries that cause unbearable pain and limit his ability to walk and navigate 25 the hilly terrain of the Winslow Complex. Palmer averred that he requested, and his 26 doctor supported, a transfer to another complex with flat terrain and handicap access. 27 According to Palmer, to receive the transfer, he was told that he would have to cancel a 28 1 pending appointment with an outside specialist and resume treatment after his move. 2 Palmer states he canceled the appointment and requested a transfer. 3 In Count I of his First Amended Complaint, Palmer alleged that Stowell acted with 4 deliberate indifference to his medical needs when she denied his transfer to a new unit 5 and refused to reschedule his appointment with the specialist (id. at 3-3C). In Count II, 6 Palmer claimed that Ryan acted with deliberate indifference when he, too, denied 7 Palmer’s request for a transfer and his request to reschedule his appointment with the 8 specialist (id. at 4-4B). 9 Palmer stated that as a result of Defendants’ actions, he suffers extreme pain that 10 is aggravated by the difficult terrain at the Winslow Complex and the lack of handicap 11 accessible facilities (id.). He requested money damages and injunctive relief (id. at 6). 12 Stowell moves for summary judgment on the grounds that (1) Palmer cannot show 13 he suffered a deprivation or harm serious enough to implicate the Eighth Amendment, 14 (2) Stowell did not act with deliberate indifference, (3) Palmer is not entitled to punitive 15 damages, and (4) Palmer’s claims for declaratory and injunctive relief should be 16 dismissed (Doc. 61) 17 Ryan argues that he is entitled to summary judgment on the grounds that (1) he 18 was not deliberately indifferent to Palmer’s medical needs, (2) the Eleventh Amendment 19 bars Palmer’s damages claim against Ryan in his official capacity, (3) claims for 20 declaratory or injunctive relief against Ryan in his individual capacity are not 21 appropriate, (4) Palmer’s claim for punitive damages is misplaced, and (5) Ryan is 22 entitled to qualified immunity (Doc. 59).1 23 II. Summary Judgment Standard 24 A court must grant summary judgment “if the movant shows that there is no 25 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 26 27 28 1 The Court issued a Notice, required under Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998), informing Palmer of his obligation to respond to the summary judgment motions and the requirements under Federal Rule of Civil Procedure 56 (Doc. 63). -2- 1 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 2 (1986). The movant bears the initial responsibility of presenting the basis for its motion 3 and identifying those portions of the record, together with affidavits, that it believes 4 demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 5 If the movant fails to carry its initial burden of production, the nonmovant need 6 not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 7 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the 8 burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that 9 the fact in contention is material, i.e., a fact that might affect the outcome of the suit 10 under the governing law, and that the dispute is genuine, i.e., the evidence is such that a 11 reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, 12 Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 13 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact 14 conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288- 15 89 (1968); however, it must “come forward with specific facts showing that there is a 16 genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 17 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1). 18 At summary judgment, the judge’s function is not to weigh the evidence and 19 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 20 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and 21 draw all inferences in the nonmovant’s favor. Id. at 255. The court need consider only 22 the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 23 56(c)(3). 24 III. Relevant Facts 25 The relevant facts, most of which are undisputed, are taken from the parties’ 26 separate Statements of Facts and attached exhibits (Doc. 60, Ryan’s Statement of Facts 27 28 -3- 1 (RSOF); Doc. 62, Stowell’s Statement of Facts (SSOF); Doc. 71 at 24-27 (PSOF)2). 2 In 2010, Palmer injured his knee playing basketball at the Lewis Complex, and, on 3 November 10, 2010, he saw a prison physician to address pain resulting from the injury 4 (PSOF ¶ 3;3 RSOF ¶ 13; SSOF ¶ 5). He was seen again on October 25, 2011, for 5 complaints of ongoing pain; Dr. Merchant, the prison physician, assessed Palmer with 6 right knee instability, prescribed Ibuprofen, and ordered x-rays and an MRI (RSOF ¶¶ 14- 7 15; SSOF ¶ 6). 8 appointment agreement (PSOF ¶ 5). Also on this date, Palmer signed an inmate outside consultation 9 On January 23, 2012, an x-ray and an MRI were performed (PSOF ¶ 6; RSOF 10 ¶¶ 16-17; SSOF ¶¶ 7-8). The x-ray showed no fracture or dislocation; however, the MRI 11 revealed a complex tear in the lateral meniscus, a subacute bone bruise on the tibial 12 plateau,4 and small joint effusion (RSOF ¶¶ 16-17; SSOF ¶¶ 7-8).5 On January 24, 2012, 13 Palmer was issued a Special Needs Order (SNO), good for one year, for a large right knee 14 sleeve (RSOF ¶ 18; SSOF ¶ 9). Two weeks later, Dr. Merchant met with Palmer and 15 submitted a request for an orthopedic surgery consult (RSOF ¶ 19; SSOF ¶ 10). 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Ryan and Stowell both object to PSOF on the grounds that it does not comply with Local Rule of Civil Procedure 56.1(b) (Doc. 75 at 2-3; Doc. 73 at 2-3). Although the paragraphs within PSOF do not correspond to the numbered paragraphs in RSOF and SSOF, they set forth Palmer’s factual assertions and are supported by the attached evidence. In light of Palmer’s pro se status and the requirement to construe his pleadings liberally and afford him the benefit of any doubt, the Court overrules Defendants’ objections and denies their requests to deem RSOF and SSOF admitted. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (courts must “construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly”); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 3 Ryan objects to PSOF ¶ 3 on the grounds that it lacks foundation and mischaracterizes Dr. Macabuhay’s November 10, 2010 medical note (Doc. 75 at 1). The objection is overruled. Palmer submits a copy of the medical note and he has personal knowledge to testify as to the reason he sought medical treatment. 4 Subacute is “between acute and chronic; denoting the course of a disease of moderate duration or severity.” Stedman’s Medical Dictionary subacute (27th ed. 2000). 5 Joint effusion is increased fluid in the cavity of a joint. Stedman’s Medical Dictionary joint effusion (27th ed. 2000). -4- 1 2 On May 29, 2012, Palmer was moved to the Winslow Complex (RSOF ¶ 20; SSOF ¶ 2; PSOF ¶ 1). 3 Two days after his transfer to Winslow, Palmer submitted a Health Needs Request 4 (HNR) seeking medical attention for his knee; he stated that slopes and rocks on the 5 Winslow yard make it too painful to get around and that the pain was extending from his 6 knee to his toes and leg (RSOF ¶ 21; SSOF ¶ 11; PSOF ¶ 8). On June 5, 2012, Palmer 7 saw a nurse practitioner, at which time he complained of sharp pain in his right knee, leg, 8 and toes; swelling at night; and knee pain when he walks the uneven terrain (SSOF ¶¶ 12- 9 13). 10 On June 12, 2012, Palmer complained of knee pain when walking and saw Dr. 11 Gibula, who observed mild flexion/extension, no patellar tenderness, marked meniscus 12 stress pain, and slight extension limit; Dr. Gibula diagnosed internal right knee 13 derangement and he requested a referral for an orthopedic consult (id. ¶ 19; RSOF ¶ 23; 14 PSOF ¶ 96). 15 On June 14, 2012, Palmer submitted an inmate letter to Deputy Warden Pruett 16 stating he had a real bad knee and was having trouble walking around the Kaibab Unit 17 due to the slopes and uneven surface and stairs, and he requested to move to another yard 18 (RSOF ¶ 24; PSOF ¶ 10). 19 On June 20, 2012, Dr. Gibula advised Palmer that he spoke with staff and was told 20 Palmer could not be placed on another yard at the Winslow Complex; however, Palmer 21 could be moved to another facility to have a level yard but, if he chose to transfer, his 22 orthopedic appointment would be canceled and he would have to start that process over 23 (RSOF ¶ 25; SSOF ¶ 21). Dr. Gibula instructed Palmer to let Dr. Gibula know if he 24 wanted to move to another facility and skip the orthopedic appointment (RSOF ¶ 25; 25 SSOF ¶ 22). 26 27 28 6 Ryan objects to PSOF ¶ 9 on the grounds that it lacks foundation and mischaracterizes Dr. Gibula’s medical note (Doc. 75 at 2). The objection is overruled. RSOF ¶ 23 does not dispute that Palmer complained about knee pain, and Palmer has personal knowledge to testify as to why he sought treatment and what he told Dr. Gibula. -5- 1 On June 28, 2012, Palmer sent an inmate letter to Dr. Gibula stating that he would 2 like to be moved and start the orthopedic consult process over (RSOF ¶ 26; SSOF ¶ 23; 3 PSOF ¶ 15). Palmer sent a second inmate letter to Dr. Gibula on July 2, 2012, stating he 4 wished to cancel the consult appointment and be moved (PSOF ¶ 16). And on July 5, 5 2012, Palmer submitted another inmate letter to Dr. Gibula stating that he signed a refusal 6 for treatment that day canceling any further appointments for his knee, that he would like 7 to be moved to a flat terrain yard, and that he wanted to be seen for his knee after transfer 8 to the new unit (SSOF ¶ 25; PSOF ¶ 18). The refusal-for-treatment form indicated that 9 the reason for refusal was “per doctor suggestion” (PSOF ¶ 17). 10 On July 16, 2012, Stowell issued a written response to Palmer’s July 5, 2012 11 inmate letter (PSOF ¶ 19). She advised Palmer that being uncomfortable walking around 12 the yard is not a medical need for a transfer and that all yards have stairs and slopes so it 13 is not a reason to move him, and she stated that “[i]t is unfortunate that you canceled your 14 appointment with Ortho but that is your choice” (id.; SSOF ¶ 29). 15 On August 8, 2012, Stowell issued another inmate letter response to Palmer 16 advising him that he was scheduled to see the provider so this issue could be resolved and 17 that many inmates have bad knees and feet but this was not a reason to move an inmate 18 (SSOF ¶ 30). 19 On August 23, 2012, Palmer advised medical staff that he did not want surgical 20 intervention to his knee; he just wanted a single-level yard (RSOF ¶ 32). Dr. Gibula 21 explained to Palmer that he was advised he did not have authority to move an inmate 22 (id.). 23 On August 30, 2012, Palmer submitted an inmate grievance appeal, in which he 24 appealed Stowell’s prior inmate letter response (PSOF ¶ 20). Stowell issued a written 25 response to this appeal, dated September 11, 2012, stating that Dr. Gibula is a MD and is 26 not aware of ADC policy and procedures; that inmates are not moved for reasons raised 27 by Palmer; and that the information Dr. Gibula gave Palmer was incorrect (SSOF ¶ 36). 28 -6- 1 Meanwhile, on September 4, 2012, Dr. Gibula issued a written inmate letter 2 response to Palmer stating that the ADC, according to the Facility Health Administrator, 3 does not transfer inmates for the reason underlying Palmer’s request for a transfer (id. 4 ¶ 35). 5 On October 25, 2012, Palmer filed a final appeal to the Director to appeal 6 Stowell’s September 11, 2012 response (RSOF ¶ 50). In his appeal, Palmer alleged 7 deliberate indifference on the part of staff for disregarding his knee injury when 8 transferring him to the Winslow-Kaibab Unit and he complained that he did not see the 9 orthopedic surgeon after the provider told him he had to cancel the appointment in order 10 to move to another facility (id.). 11 On October 26, 2012, Palmer was seen by a nurse in response to his HNR seeking 12 another knee sleeve because his current sleeve was stretched out (id. ¶¶ 37-38). On 13 November 8, 2012, Dr. Gibula examined Palmer for his request for a new knee brace (id. 14 ¶ 40; RSOF ¶ 35). The medical note from this visit documents that Palmer’s knee had no 15 edemas or effusions, but there was pain with attempted full extension; marked meniscus 16 strain tenderness; and tibial tubercle pain upon standing (SSOF ¶¶ 41-43; RSOF ¶ 35). 17 Dr. Gibula assessed him with chronic knee pain and prescribed Ibuprofen and a large 18 knee brace (SSOF ¶¶ 43-44; RSOF ¶ 35). 19 On November 20, 2012, Palmer again saw Dr. Gibula, who documented some 20 effusion on the right knee and ACL tension increased pain and assessed Palmer with 21 chronic knee pain and recurrent edema (SSOF ¶¶ 46-47; RSOF ¶ 37). Palmer was issued 22 an SNO for a knee sleeve in January 2013; the SNO expires in January 2029 (SSOF 23 ¶¶ 48-49; RSOF ¶ 38). 24 On February 8, 2013, Jeffery Hood, an ADC Deputy Director, responded to 25 Palmer’s October 25, 2012 final appeal on Ryan’s behalf (RSOF ¶ 50). Hood stated that 26 after an investigation, it was determined that Palmer’s medical records did not reflect any 27 medical issues that should have prevented his transfer to the Kaibab Unit (id.). Hood 28 further stated that the provider, Dr. Gibula, incorrectly implied that he could move -7- 1 Palmer to another facility and that Palmer should cancel his orthopedic appointment (id.). 2 For this reason, the appeal was partially upheld, and it was directed that Palmer be seen 3 by the medical provider within 30 days, at no charge, to determine if a new orthopedic 4 evaluation is necessary at this time (id.). 5 On February 14, 2013, Palmer was seen by a nurse practitioner for an orthopedic 6 complaint (id. ¶ 49). The nurse practitioner documented no edema or erythema (redness) 7 and assessed Palmer with right knee pain and medial ligament tear (SSOF ¶ 52; RSOF 8 ¶ 39). The treatment plan called for a prescription of Naproxen, muscle exercises, and 9 follow up in four weeks (SSOF ¶ 53; RSOF ¶ 39). 10 Palmer was seen by the nurse practitioner for follow up on March 14, 2013, at 11 which time his knee had pain and was unstable, there was trace edema, and there was 12 decreased range of motion (SSOF ¶¶ 54-55; RSOF ¶ 40). He was assessed with medial 13 ligament tear, arthritis, and knee instability; Meloxicam was prescribed in place of the 14 Naproxen; and an orthopedic consult was requested (SSOF ¶¶ 56-57; RSOF ¶ 40). 15 On May 5, 2013, Palmer had an MRI, which revealed degenerative arthropathy 16 most pronounced at the medial femorotibial joint space, a complex degenerative tear of 17 the medial meniscus, an extensive edema in the anterior cruciate ligament and a partial 18 tear, and small effusion with synovitis (RSOF ¶ 41). A few days later, a consultation 19 request was submitted requesting an orthopedic consult for Palmer’s right medial 20 ligament tear (id. ¶ 42; SSOF ¶ 59). 21 In June 2013, Palmer saw an orthopedic specialist, who recommended right knee 22 arthroscopy, ice daily, activity modifications, and Motrin (RSOF ¶ 43). 23 underwent surgery on his right knee on July 18, 2013 (id. ¶ 45; SSOF ¶ 61). Palmer 24 In August, Palmer submitted an HNR informing medical staff that he still 25 experienced pain in his knee and that it was hard to walk (Doc. 71 at 11). On February 4, 26 2014, Palmer was issued a cane (id.). 27 28 -8- 1 In April 2014, Palmer was transferred to the Arizona State Prison Complex- 2 Eyman, Special Management Unit 1 (Doc. 64).7 3 IV. Governing Standard 4 Under the Eighth Amendment standard, a prisoner must demonstrate “deliberate 5 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 6 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs to the 7 deliberate-indifference analysis: an objective standard and a subjective standard. First, a 8 prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations omitted). 9 A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result 10 in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 11 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by, 12 WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 13 citation omitted). Examples of indications that a prisoner has a serious medical need 14 include “[t]he existence of an injury that a reasonable doctor or patient would find 15 important and worthy of comment or treatment; the presence of a medical condition that 16 significantly affects an individual’s daily activities; or the existence of chronic and 17 substantial pain.” McGuckin, 974 F.2d at 1059-60. 18 Second, a prisoner must show that the defendant’s response to that need was 19 deliberately indifferent. Jett, 439 F.3d at 1096. The state of mind required for deliberate 20 indifference is subjective recklessness; however, the standard is “less stringent in cases 21 involving a prisoner’s medical needs . . . because ‘the State’s responsibility to provide 22 inmates with medical care ordinarily does not conflict with competing administrative 23 concerns.’” McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillian, 503 U.S.1, 6 24 (1992)). Whether a defendant had requisite knowledge of a substantial risk of harm is a 25 question of fact, and a fact finder may conclude that a defendant knew of a substantial 26 risk based on the fact that the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842 27 28 7 Palmer’s surgery and subsequent transfer to a different facility effectively moot his claims for injunctive relief. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). -9- 1 (1994). While the obviousness of the risk is not conclusive, a defendant cannot escape 2 liability if the evidence shows that the defendant merely refused to verify underlying 3 facts or declined to confirm inferences that he strongly suspected to be true. Id. 4 “Prison officials are deliberately indifferent to a prisoner’s serious medical needs 5 when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. 6 Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks 7 omitted). Deliberate indifference may also be shown by the way in which prison officials 8 provide medical care, Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988), or 9 “by circumstantial evidence when the facts are sufficient to demonstrate that a defendant 10 actually knew of a risk of harm.” Lolli v. Cnty. of Orange, 351 F.3d 410, 421 (9th Cir. 11 2003). And deliberate indifference may be shown by a purposeful act or failure to 12 respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. But the 13 deliberate-indifference doctrine is limited; an inadvertent failure to provide adequate 14 medical care or negligence in diagnosing or treating a medical condition does not support 15 an Eighth Amendment claim. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) 16 (citations omitted). Further, a mere difference in medical opinion does not establish 17 deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 18 Finally, even if deliberate indifference is shown, to support an Eighth Amendment 19 claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 20 1096; see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing 21 medical treatment does not constitute Eighth Amendment violation unless delay was 22 harmful). 23 V. Discussion 24 A. 25 Ryan does not challenge that Palmer’s knee condition constituted a serious 26 medical need (see Doc. 59). But Stowell argues that Palmer cannot satisfy this initial 27 element in deliberate-indifference analysis because Stowell followed Wexford and ADC 28 policies when determining there was no basis for transferring Palmer (Doc. 61 at 10). Serious Medical Need - 10 - 1 This argument does not relate to the objective element and whether Palmer’s condition 2 constituted a serious medical need. Stowell also argues that Palmer cannot show that the 3 failure to transfer him to another facility resulted in further injury (id. at 9-10). As stated, 4 a serious medical need exists where a reasonable doctor finds a condition worthy of 5 treatment, the condition significantly affects an individual’s daily activities, or the 6 condition causes chronic and substantial pain. McGuckin, 974 F.2d at 1059-60. The 7 evidence documents ongoing treatment and medications that prison medical staff and 8 specialists provided to Palmer, and he avers he suffered chronic pain that affected his 9 daily activities. On this record, a jury could find that Palmer’s condition constituted a 10 serious medical need. The Court therefore turns to the subjective prong of the deliberate- 11 indifference analysis. 12 B. 13 When a plaintiff seeks to hold an individual defendant personally liable for 14 damages, the causation inquiry between the deliberate indifference and the Eighth 15 Amendment deprivation requires a very individualized approach that accounts for the 16 duties, discretion, and means of each defendant. Leer v. Murphy, 844 F.2d 628, 633 (9th 17 Cir. 1988). The Court must look at “whether [each] individual defendant was in a 18 position to take steps to avert the [incident], but failed to do so intentionally or with 19 deliberate indifference.” Id. 20 1. Deliberate Indifference Stowell 21 Stowell argues that the failure to transfer Palmer to a different facility did not 22 amount to deliberate indifference because there is no constitutional right to be housed in a 23 certain facility and he was receiving the necessary care for his knee at the Winslow 24 facility (Doc. 61 at 9-10). She further argues that there is no evidence the failure to 25 transfer Palmer resulted in further significant injury, as required under the Eighth 26 Amendment (id. at 10). With respect to rescheduling the appointment with a specialist, 27 Stowell asserts that it was Palmer who initially refused an orthopedic consult and, 28 thereafter, medical staff provided appropriate treatment; he was not denied an orthopedic - 11 - 1 consult; and Palmer ultimately saw a specialist and underwent knee surgery (id. at 10- 2 11). 3 Palmer contends that Stowell was deliberately indifferent when she denied his 4 request to transfer to another yard despite Dr. Gibula’s recommendation and without 5 personally seeing or evaluating Palmer’s condition (Doc. 71 at 14-15, 21). Palmer also 6 alleges that, through his grievances, Stowell was aware of his medical need and the pain 7 he suffered; however, she was indifferent to his pain and disregarded Dr. Gibula’s advice 8 based on some unidentified policy that does not permit transfers for medical reasons like 9 his (id. at 20-21). 10 It is undisputed that Dr. Gibula advised Palmer he could move Palmer to a 11 different facility with a more level terrain. The evidence shows, however, that Dr. Gibula 12 was not authorized to move inmates to other facilities (Doc. 71, Ex. 20 (Dec. 24, 2012 13 appeal resp.) (Doc. 71 at 76)). Rather, inmate housing assignments are based on an 14 inmate’s classification and determined by the Offender Services Bureau (Doc. 62, SSOF 15 ¶¶ 1-3). Palmer does not allege that the medical staff at the Winslow Complex was 16 unequipped to treat his knee condition, and the record supports that he received adequate 17 treatment, including outside assessments and specialist care. Under these circumstances, 18 Dr. Gibula’s suggestion that Palmer move to another facility was not akin to a 19 physician’s recommendation for specific treatment, i.e., for medication or surgery, and 20 Stowell’s failure to follow through on Dr. Gibula’s misadvisement does not give rise to a 21 constitutional claim. Cf. Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (where the 22 treating physician recommended surgery, a reasonable jury could conclude that it was 23 medically unacceptable for the non-treating physicians to deny recommendations for 24 surgery), overruled in part on other grounds by, Peralta v. Dillard, 744 F.3d 1076, 1082- 25 83 (9th Cir. 2014). 26 There is no question that Dr. Gibula’s misinformation led to Palmer cancelling his 27 orthopedic consult in July 2012 and caused a delay in ultimately seeing a specialist. 28 Given that prison officials acknowledged Palmer was misinformed by Dr. Gibula and - 12 - 1 partially upheld his final appeal for this reason, Stowell’s grievance response to Palmer— 2 that it was unfortunate he canceled his appointment but that it was “his choice”— 3 misconstrued the facts and was not tactful. But a mistake or even unprofessional conduct 4 does not rise to a constitutional violation. 5 The medical records show that after Palmer learned in August/September 2012 6 that he could not transfer to another facility, he continued to see medical staff regularly— 7 almost monthly—for his knee condition (id., SSOF ¶¶ 37, 40, 44, 46-48, 53-54). The 8 ongoing treatment during this time included medications to address his pain, muscle 9 exercises, and issuance of a knee brace and knee sleeve (id.). Notably, the August 23, 10 2012 medical record documents that Palmer told Dr. Gibula he did not want surgical 11 intervention; thus, the conservative treatment was in line with Palmer’s expressed desire 12 to avoid surgery (Doc. 22, Ex. 18 (Doc. 62-1 at 50)). Finally, however, in March 2013, 13 an orthopedic consult was requested for an MRI, which occurred in May 2013, and which 14 led to another orthopedic consult for a specialist appointment in June and surgery in July 15 2013 (id. ¶¶ 57, 59, 61; Doc. 60, RSOF ¶¶ 40-45). There is no evidence of an orthopedic 16 consult request prior to March 2013 that Stowell interfered with or denied. 17 On this record, the Court finds no genuine issue of material fact to support that 18 Stowell was deliberately indifferent to Palmer’s serious medical need; thus, her request 19 for summary judgment on Count I will be granted. Stowell’s remaining arguments for 20 summary judgment need not be addressed. 21 The Court notes that in her motion, Stowell appears to request attorney’s fees 22 under 42 U.S.C. § 1988 (Doc. 61 at 13).8 Under § 1988, a district court may award 23 attorney’s fees to a prevailing defendant if the plaintiff’s underlying claim is frivolous, 24 unreasonable, or without foundation. Vernon v. City of L.A., 27 F.3d 1385, 1402 (9th Cir. 25 1994). This standard “is applied with particular strictness in cases where the plaintiff 26 27 28 8 The section pertaining to attorney’s fees is mistitled “Palmer is entitled to her reasonable attorneys’ fees incurred in defending this case” (Doc. 61 at 13) (emphasis added). The section proceeds to argue for recovery of attorney’s fees incurred in defending against a different plaintiff’s claims (id.). - 13 - 1 proceeds pro se.” Miller v. L.A. Cnty. Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987). 2 Palmer’s claim was not frivolous, unreasonable, or without foundation; indeed, the Court 3 screened his Amended Complaint and found that the allegations sufficiently stated a 4 constitutional claim against Stowell (Doc. 13). Her request for attorneys’ fees will 5 therefore be denied. 6 2. Ryan 7 There is no respondeat superior liability under § 1983. Monell v. Dep’t of Soc. 8 Servs., 436 U.S. 658, 691-92 (1978). Therefore, as a supervisor, Ryan may be liable for 9 an Eighth Amendment violation only if he participated in or directed the violation or he 10 knew of the violation and failed to act to prevent it. Taylor v. List, 880 F.2d 1040, 1045 11 (9th Cir. 1989). 12 Ryan asserts that Palmer cannot show that he was aware of a substantial risk of 13 harm to Palmer’s health (Doc. 59 at 12). Ryan avers that he is not a medical provider and 14 does not prescribe treatment and that he had no involvement with Palmer’s transfer from 15 the Lewis Complex to the Winslow Complex in May 2012 (Doc. 60, Ex. B, Ryan Decl. 16 ¶¶ 9, 11 (Doc. 60-1 at 23-24)). Ryan states that both inmate medical care and inmate 17 classification/assignments are duties delegated, pursuant to state law, to the Health 18 Services and Offender Operations Division Directors respectively (id. ¶¶ 4-6). Lastly, 19 Ryan asserts that his sole involvement in this case is Palmer’s final grievance appeal to 20 the Director, which was responded to by Deputy Director Hood and which, according to 21 Ryan, does not amount to active unconstitutional behavior under § 1983 (Doc. 59 at 13, 22 citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). 23 In his response memorandum, Palmer argues that Ryan’s involvement includes 24 both his response to the grievance appeal and his policies and practices (Doc. 71 at 5, 16). 25 He contends that Ryan has a policy of failing to provide prisoners adequate healthcare 26 (id. at 13). According to Palmer, when he first saw a prison physician, Dr. Macabuhay, 27 in November 2010 after injuring his knee, Dr. Macabuhay told him that the ADC had a 28 policy and practice of denying knee operations (id.). Palmer identifies five significant - 14 - 1 “failures” in his treatment that resulted from the alleged unconstitutional policy: (1) the 2 initial failure to take x-rays ordered by Dr. Macabuhay; (2) Palmer’s transfer in May 3 2012 to Winslow before he saw an outside specialist; (3) Stowell’s finding that Palmer’s 4 placement on the Winslow yard was appropriate; (4) Stowell’s failure to take Dr. 5 Gibula’s advice that Palmer should be moved; and (5) Ryan’s failure to transfer Palmer 6 (id. at 13-16). Palmer alleges that Ryan effectively approved all of these failures and 7 deprived Palmer adequate care when he responded to Palmer’s final appeal (id. at 16). 8 Palmer notes that the final appeal response directed that he be seen by a provider within 9 30 days; according to Palmer, this is evidence that Ryan had the power to intervene and 10 direct appropriate medical care (id. at 16-17). 11 established the Offender Services Bureau policy and that the failure to take into account 12 Palmer’s medical condition, pursuant to that policy, was clearly unreasonable (id. at 19). Palmer further alleges that Ryan 13 To the extent Ryan argues that he is not liable because his only involvement was 14 in the grievance process, he overstates the holding of Shehee, a Sixth Circuit opinion. 15 Whether involvement in the grievance process is sufficient personal involvement to state 16 a claim of a constitutional deprivation would depend on several factors, such as whether, 17 at the time of the grievance response, the violation is ongoing, see e.g., Flanory v. Bonn, 18 604 F.3d 249, 256 (6th Cir. 2010), or the unconstitutional conduct is completed, see 19 Shehee, 199 F.3d at 300, and whether the defendant responding to the grievance has 20 authority to take action to remedy the alleged violation, see Bonner v. Outlaw, 552 F.3d 21 673, 679 (8th Cir. 2009). Further, under Sixth Circuit law, liability under § 1983 requires 22 “active unconstitutional behavior; failure to act or passive behavior is insufficient.” King 23 v. Zamiara, 680 F.3d 686, 706 (6th Cir. 2012). But under Ninth Circuit law, a defendant 24 can be liable for the failure to act. See Taylor, 880 F.2d at 1045. 25 Nonetheless, in this case, Ryan did not actually respond to or sign Palmer’s final 26 appeal response. Even assuming Ryan was aware of Palmer’s appeal, because Ryan is 27 not a physician, it was appropriate for him to rely on the Deputy Director’s investigation 28 and review of medical records when responding to Palmer’s medical complaint. See - 15 - 1 Peralta, 744 F.3d at 1087 (defendant not aware of risk of harm where he was not a 2 dentist, he did not independently review medical chart before signing off on appeal and 3 had no expertise to contribute to a review, and he relied on dental staff who investigated 4 the plaintiff’s complaints). As discussed above, the medical records show that Palmer 5 received consistent and adequate medical care for his knee in 2012 and 2013, including 6 medications, knee sleeves, and MRIs and other assessments. 7 It was also reasonable for Ryan to rely on information from the Offender Services 8 Bureau, which determined that there was no record of any medical issue that would 9 restrict Palmer’s housing assignment (Doc. 19, Ex. A, Mata Decl. ¶ 5 (Doc. 19-1 at 2)). 10 Palmer does not demonstrate that he was qualified under the Americans with Disabilities 11 Act for accommodations. More importantly, in his deposition, Palmer conceded that 12 Ryan did not personally know about his bad knee (Doc. 60, Ex. J, Palmer Dep. 28:17-25, 13 Jan. 8, 2014) (Doc. 60-2 at 103)). 14 On this record, there is no evidence that Ryan had the requisite knowledge of a 15 substantial risk of harm to Palmer’s health; thus, he cannot be liable in his individual 16 capacity for deliberate indifference. See Farmer, 511 U.S. at 837 (a prison official 17 cannot be liable under the Eighth Amendment “unless the official knows of and 18 disregards an excessive risk to inmate health or safety”). 19 Palmer alleges, however, that Ryan is liable in his official capacity for enacting 20 policies that led to the alleged deliberate indifference. The requisite elements of a § 1983 21 claim based on a policy, practice, and custom are that: (1) the plaintiff was deprived of a 22 constitutional right; (2) the entity had a policy or custom; (3) the policy or custom 23 amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the 24 policy or custom was the moving force behind the constitutional violation. Mabe v. San 25 Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 26 The Court has determined that neither Stowell nor Ryan’s actions amounted to a 27 violation of Palmer’s constitutional rights and that Palmer received adequate medical care 28 for his knee condition. As a result, Palmer cannot satisfy the first element required to - 16 - 1 establish a § 1983 claim based on an unlawful policy or practice. In addition, although 2 Palmer argues generally that the policies governing medical care and the Offender 3 Services Bureau were deficient, he fails to present evidence of any specific policy, rule, 4 or regulation promulgated by Ryan. Palmer’s conclusory allegations that Ryan has a 5 policy of failing to provide adequate health care and that there is a practice of denying 6 knee operations are insufficient to preclude summary judgment. See Taylor, 880 F.2d at 7 1045. Accordingly, Ryan is not liable for a constitutional violation stemming from a 8 policy or practice. The Court will grant summary judgment to Ryan on Count II, and the 9 remaining arguments need not be addressed. 10 IT IS ORDERED: 11 (1) The reference to the Magistrate Judge is withdrawn as to Defendant Ryan’s 12 Motion for Summary Judgment (Doc. 59) and Defendant Stowell’s Motion for Summary 13 Judgment (Doc. 61). 14 15 16 17 (2) Defendant Ryan’s Motion for Summary Judgment (Doc. 59) is granted; Count II is dismissed with prejudice. (3) Defendant Stowell’s Motion for Summary judgment (Doc. 61) is granted in part and denied in part as follows: 18 (a) the Motion is granted as to Count I, and Count I is dismissed with 19 prejudice; and 20 (b) the Motion is denied as to the request for attorneys’ fees under 42 21 U.S.C. § 1988. 22 (4) The Clerk of Court must enter judgment accordingly and terminate the action. 23 Dated this 6th day of November, 2014. 24 25 Honorable Steven P. Logan United States District Judge 26 27 28 - 17 -

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