Warren v. Corizon Health et al

Filing 35

ORDER re 28 MOTION filed by John F Warren. Plaintiff shall return the documents Bates stamped COR 121, COR 122, and COR 525 (Dkt. 28-1 at 5-7) to Defendants counsel. The documents shall be stricken from the record and the Clerk shall seal the documents from public view.. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN F. WARREN,
Case No. 1:14-cv-00011-EJL-CWD
Plaintiff,
REPORT AND RECOMMENDATION
v.
CORIZON HEALTH; DR. APRIL
DAWSON, M.D.; MICHAEL TAKAGI,
PA-C; DIANE DICE, PA-C; STEVEN
STEDTFELD, PA-C; DAVID FOSS,
NP RYAN VALLEY, HSA; BRISTY
DELAOE; JOHN DOE PROVIDER;
JANE DOE PROVIDER; STEVEN
LITTLE, WARDEN; BRENT REINKE,
DIRECTOR OF IDAHO DEPT. OF
CORRECTIONS,
Defendants.

INTRODUCTION
Pending before the Court in this prisoner civil rights matter is Plaintiff’s Motion to
Amend Complaint. (Dkt. 28.) The motion is now fully briefed.
Having fully reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and record and that the decisional
REPORT AND RECOMMENDATION - 1

process would not be significantly aided by oral argument. Therefore, the Court will
decide this matter on the written motion, briefs and record without oral argument. Dist.
Idaho L. Rule 7.1(d). The Court makes the following report and recommendation.
BACKGROUND
Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC),
filed his complaint against Defendants on January 10, 2014, alleging that Corizon Health
allows its medical providers to prescribe nonsteroidal anti-inflammatory drugs (NSAIDs),
such as Ibuprofen, Meloxicam (Mobic), and Naproxen, that are known to cause intestinal
bleeding and other health problems if used over a long period of time. Plaintiff claims
that the decisions of Defendant medical providers— Dr. April Dawson, Michael Takagi,
Diana Dice, Steven Stedtfeld, and David Foss—to prescribe him this type of medication
for four years has caused him to suffer from colon ulcers, intestinal bleeding, gastritis,
inflammatory bowel disorder, and other injuries known to be linked to the use of
NSAIDs. He alleges that each Defendant acted with deliberate indifference in prescribing
these medications to Plaintiff without providing precautionary information, knowing that
the medications would cause Plaintiff injury. Additionally, Plaintiff brought state law
claims under the Court’s supplemental jurisdiction.
On May 7, 2014, the Court entered its initial review order allowing certain claims
to proceed. 1 As to the state law claims, the Court articulated that Plaintiff had not clearly
stated which type of state law claims he wished to pursue, and allowed him to file an
amended complaint to clarify the causes of action in the Complaint. Later, Defendants
1

Additional claims not mentioned here were not allowed to proceed. (See Dkt. 9.)

REPORT AND RECOMMENDATION - 2

filed a motion for summary judgment, which was granted in part and denied in part,
leaving the Section 1983 claims regarding over-prescription of NSAID medications and
intestinal bleeding remaining.
On January 15, 2015, Plaintiff filed a motion to amend his complaint to add claims
asserted under the Eighth Amendment against Defendants April Dawson, MD, and
Corizon Health. As against Dr. Dawson, Plaintiff alleges that, for a period of twenty-four
days, she failed to give Plaintiff a medication recommended by a specialist physician to
treat his ulcerative colitis. (Dkt. No. 28-1 at 1.) Specifically, Asacol HD was
recommended by a specialist who prescribed it. He alleges that Dr. Dawson did in fact
order the prescribed medication, but it was not approved, 2 thereby resulting in Plaintiff
receiving a “low-rate formulary medication that was not recommended by the specialist.”
Id. The records attached to the proposed amended complaint indicate an alternative
medication, Colazal, was recommended as a substitute. 3
As against Corizon, Plaintiff alleges that it maintains policies that “force providers
to only order from a formulary list of low cost and cut rate medications that do not work
as well . . . and causes a undue delay in medical care.” (sic) (Dkt. No. 28-1 at 3.)
Defendants oppose the motion to amend on the grounds that the proposed
amendments are futile, because the allegations fail to state a claim under the Eighth
Amendment. Defendants ask also that three pages of medical records inadvertently

2

It is not clear from the record who approves the medications dispensed at the prison. The record indicates only that
Dr. Dawson “learned …Asacol not approved.” (Dkt. 30-1 at 9.)
3
Again, it is not clear from the record who advised Dr. Dawson that Colazal was recommended as a substitute. The
record indicates that Dr. Dawson was “advised trial of formulary Colazol. Will order med. Confirm with Dr.
Serricati that substitution is okay to try.” (Dkt. 30-1 at 9.)

REPORT AND RECOMMENDATION - 3

disclosed to Plaintiff during discovery pertaining to two other inmates, and attached to
Plaintiff’s motion, be stricken from the record and returned to Defendants or be
destroyed. (See Dkt. 28-1 at 5-7.)
REPORT
1.

Rule 15 Standard
Under the federal rules, the Court “should freely give leave [to amend] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). In making that discretionary decision:
[A] court must be guided by the underlying purpose of Rule 15—to
facilitate decision on the merits rather than on the pleadings or
technicalities. This court has noted on several occasions that the Supreme
Court has instructed the lower federal courts to heed carefully the command
of Rule 15(a) ... by freely granting leave to amend when justice so requires.
Thus Rule 15's policy of favoring amendments to pleadings should be
applied with extreme liberality.
Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal citations, quotation
marks, and alterations omitted). Leave to amendment is appropriate “in the absence of
any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
A motion for leave to amend may be denied if it appears to be futile or legally
insufficient. Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). A proposed
amendment is futile if no set of facts can be proven under the amendment of the
pleadings that would constitute a valid and sufficient claim or defense. Id. If it could be

REPORT AND RECOMMENDATION - 4

defeated on a motion for summary judgment, an amendment will be deemed futile.
Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986).
2.

Standard of Law for Eighth Amendment Claims
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To

succeed on a claim under § 1983, a plaintiff must establish a violation of rights protected
by the Constitution or created by federal statute proximately caused by the conduct of a
person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991).
The Eighth Amendment to the United States Constitution protects prisoners
against cruel and unusual punishment. To state a claim under the Eighth Amendment, a
prisoner must show that he is “incarcerated under conditions posing a substantial risk of
serious harm,” or that he has been deprived of “the minimal civilized measure of life's
necessities” as a result of Defendants' actions. Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal quotation marks omitted). An Eighth Amendment claim requires a
plaintiff to satisfy “both an objective standard—that the deprivation was serious enough
to constitute cruel and unusual punishment—and a subjective standard—deliberate
indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). The Eighth
Amendment includes the right to adequate medical care in prison, and prison officials or
prison medical providers can be held liable if their “acts or omissions [were] sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976).

REPORT AND RECOMMENDATION - 5

Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained that, “[b]ecause society does not expect that
prisoners will have unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
The Ninth Circuit has defined a “serious medical need” in the following ways:
failure to treat a prisoner's condition [that] could result in further significant
injury or the unnecessary and wanton infliction of pain [;] ... [t]he existence
of an injury that a reasonable doctor or patient would find important and
worthy of comment or treatment; the presence *1214 of a medical
condition that significantly affects an individual's daily activities; or the
existence of chronic and substantial pain ....
McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992) (internal citations omitted),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)
(en banc).
As to the subjective standard, a prison official or prison medical provider acts with
“deliberate indifference ... only if the [prison official] knows of and disregards an
excessive risk to inmate health and safety.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d
1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). “Under this
standard, the prison official must not only ‘be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also
draw the inference.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting
Farmer, 511 U.S. at 837).

REPORT AND RECOMMENDATION - 6

Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). A delay in treatment does not constitute a violation of the Eighth
Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060.
Additionally, differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o
prevail on a claim involving choices between alternative courses of treatment, a prisoner
must show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the
prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (alteration
omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
A.

Dr. Dawson

The allegations in the proposed amendments to the complaint fail to state a claim
against Dr. Dawson that is actionable under the Eighth Amendment. The allegations are
of mere delay, and of a disagreement with the substitution of a formulary medication for
a brand name medication. Plaintiff received the substituted medication, and alleges no
injury or damages suffered from the delay in treatment or because of the different
medication ultimately prescribed.
Plaintiff’s complaint actually contains allegations that Dr. Dawson did not ignore
Plaintiff’s medical needs. She sought to prescribe Asacol HD, and when she learned that
the medication was not authorized, she prescribed Colazal after confirming the
REPORT AND RECOMMENDATION - 7

substitution was appropriate. The allegations as contained in the complaint do not
establish that Dr. Dawson ignored Plaintiff or that Plaintiff was harmed by the alleged
delay, and Plaintiff’s insistence on receiving Asacol HD instead of the Colazal is a
disagreement between a prisoner and a medical provider, which is not actionable under
the Eighth Amendment.
B.

Corizon

Plaintiff proposes to add a claim against the entity Corizon, alleging Corizon has a
policy or custom of providing less effective formulary medications and that its ordering
process results in a delay in care.
To bring a civil rights claim against a municipality, local governing body, or
private entity performing a public function, a plaintiff must allege sufficient facts in the
complaint meeting the test articulated in Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 69–194 (1978): (1) the plaintiff was deprived of a constitutional
right; (2) the entity had a policy or custom; (3) the policy or custom amounted to
deliberate indifference to plaintiff’s constitutional right; and (4) the policy or custom was
the moving force behind the constitutional violation. See Mabe v. San Bernardino
County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir. 2001).
The allegations asserted against Corizon fail to state a claim under the Eighth
Amendment. Even assuming that Corizon seeks to cut costs by prescribing formulary
approved medications, the allegations do not rise to a level supporting a claim of
deliberate indifference to Plaintiff’s medical needs. Further, as discussed above, the
allegations against Dr. Dawson do not support a claim of deliberate indifference. Thus,
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Plaintiff’s claim that Dr. Dawson, by following the ordering policy established by
Corizon, does not support a finding that Corizon’s policy amounts to deliberate
indifference. See Cutler v. CMS, No. 3:08–cv–00507–BLW, 2011 WL 4479025 (D.
Idaho Sept. 26, 2011) (denying inmate’s claim that the defendant had a policy of acting in
its interest of sustaining a profitable company without regard to the inmate patient’s
medical needs where there was no showing that Plaintiff lacked access to medical
services, and defendants used their medical judgment, among other facts).
Moreover, the policy provisions for substitution of formulary medications for
brand name or other prescribed medications amounts to nothing more than a
disagreement over the choice of which medications may be used to treat Plaintiff. As
such, the allegations do not rise to an actionable Eighth Amendment claim.
3.

Disclosure of Medical Records
There are three pages of medical records attached to Plaintiff’s submissions that

pertain to two other inmates, which are not relevant to the claims in this matter. Plaintiff
appears to allege a violation of privacy on behalf of these other inmates, which he cannot
do on another’s behalf. See Idaho Aids Foundation, Inc. v. Idaho Housing & Fin. Ass’n.,
422 F.Supp.2d 1193, 1199 (D. Idaho 2006) (individuals have a right to informational
privacy as it pertains to confidential medical information). And, the inadvertent
disclosure of the medical records appears to have been a mistake. Aff. of Counsel (Dkt.
30-2.) It appears two persons reviewed the 698 pages of medical information before
producing the records to Plaintiff, and inadvertently included three pages pertaining to
other inmates in that production. The steps taken to prevent inadvertent disclosure of
REPORT AND RECOMMENDATION - 9

others’ protected medical information appears reasonable, and now that counsel is aware
of the error, he is attempting to rectify it.
Plaintiff will be ordered to return to Defendants’ counsel the three pages
inadvertently disclosed, the three pages of records will stricken from the record, and the
Clerk will be ordered to remove the documents from public view.
CONCLUSION
Based upon the allegations in the proposed amendments to the complaint, Plaintiff
has not alleged facts establishing an Eighth Amendment claim. Moreover, any
amendment to the proposed allegations would be futile, because the factual claims pled
simply establish a disagreement over the choice of medications prescribed, and do not
allege any injury or damages as a result of the twenty-four day delay in treatment.

REPORT AND RECOMMENDATION - 10

RECOMMENDATION
NOW THEREFORE IT IS HEREBY RECOMMENDED:
1)

Plaintiff’s Motion to Amend Complaint to Add Additional Charges (Dkt.
28) be DENIED.

Written objections to this Report and Recommendation must be filed within
fourteen (14) days pursuant to 28 U.S.C. § 636(b)(1) and Dist. Idaho L. Rule 72.1(b), or
as a result of failing to do so, that party may waive the right to raise factual and/or legal
objections to the United States Court of Appeals for the Ninth Circuit.

March 19, 2015

ORDER
IT IS HEREBY ORDERED THAT Plaintiff shall return the documents Bates
stamped COR 121, COR 122, and COR 525 (Dkt. 28-1 at 5-7) to Defendants’ counsel.
The documents shall be stricken from the record and the Clerk shall seal the documents
from public view.
March 19, 2015

REPORT AND RECOMMENDATION - 11