Gutierrez-Valencia 091102 v. Corizon Utilization Management ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Luis Gutierrez-Valencia, No. CV-18-03007-PHX-JAT 10 Plaintiff, FINDINGS OF FACT AND CONCLUSIONS OF LAW 11 v. 12 Corizon Utilization Management, et al., 13 Defendants. 14 15 In this prisoner civil rights case, Plaintiff Luis Gutierrez-Valencia sued several 16 defendants under 18 U.S.C. § 1983 alleging that Defendants violated his Eighth 17 Amendment right against cruel and unusual punishments. The Court presided over a 18 bench trial on May 10, 2021 regarding Plaintiff’s claim against Defendant Nathaniel 19 Harris (“Defendant”), property sergeant at the Special Management Unit (SMU) of the 20 Arizona State Prison Complex–Eyman. Plaintiff argues Defendant improperly withheld 21 Plaintiff’s transcutaneous electrical nerve stimulation (TENS) unit, which Plaintiff uses 22 to treat his chronic back pain, between May 15, 2017 and January 18, 2018. The Court 23 now finds and concludes the following. 24 I. FINDINGS OF FACT1 25 Plaintiff suffers from chronic back pain resulting from multiple car accidents and a 26 gunshot wound. As part of his back-pain treatment, Plaintiff was permitted to have and 27 1 The Court notes that both parties offered, and the Court admitted, very little documentary evidence in support of their positions at trial. (See Exhibits 6, 13, 100, 109, 28 115). Accordingly, unless otherwise indicated, the Court’s findings are drawn from the parties’ trial testimony. 1 use a TENS unit, and Plaintiff used the TENS unit daily. (Ex. 6). 2 On May 15, 2017, Plaintiff was transferred to a detention unit within SMU. (Ex. 3 100 at ADC0011, ADC0023). A detention unit is commonly used to house inmates 4 following disciplinary infractions and has greater restrictions than other units within 5 SMU. For example, Arizona Department of Corrections Order (“DO”) 909, Attachment 6 A provides that inmates housed in a detention unit may not possess playing cards, CD 7 players, desk lamps, or—as relevant here—batteries. (Ex. 115 ADC0322).2 8 DO 909 § 1.3.3.1 provides that “[a]n inmate may be authorized to have . . . kept in 9 his/her possession, . . . specialized medical equipment or items . . . which are clinically 10 indicated for the inmate’s medical condition(s).” (Ex. 115 at ADC0291). When an inmate 11 in detention requires the use of a medical item that the inmate may not have in his 12 possession, the inmate may ask to go to the medical department to use the item there. 13 Plaintiff and Defendant both testified at trial. Defendant testified that as property 14 sergeant, he was responsible for checking the property that came into and left SMU to 15 identify contraband. Defendant further testified that on May 16, 2017, he determined that 16 Plaintiff’s TENS unit constituted contraband under DO 909 because it contained 17 batteries. Defendant asked his superior, the chief of security, whether the TENS unit 18 constituted contraband, and the chief of security confirmed that Defendant was not 19 allowed to possess his TENS unit. Defendant testified that his decision was not motivated 20 by any personal animus towards Plaintiff, he did not know about Plaintiff’s medical 21 condition (although he did know the TENS unit was a medical item), and he did not 22 receive written or verbal communication from Plaintiff regarding his TENS unit during 23 the relevant period. 24 2 The copy of DO 909 admitted at trial was effective from May 30, 2013 to November 25 18, 2017. (Ex. 115). The subsequent version of DO 909, which became effective on November 19, 2017 and remains in effect today, contains the same restrictions on the 26 listed items. See Arizona Department of Corrections, Rehabilitation, and Reentry (ADOC) Department Order 909, Attachment A, at 10, 11 (available at 27 https://corrections.az.gov/sites/default/files/policies/900/0909_031821.pdf); see also Fed. R. Evid. 201(b); Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (noting 28 that courts “may take judicial notice of a record of a state agency not subject to reasonable dispute”). 1 Plaintiff testified that as a result of his back injuries, he had severe and persistent 2 back pain that would sometimes result in his inability to walk. He testified that he 3 repeatedly requested to receive his TENS unit during the relevant period through written 4 requests to both the medical and security departments and that he spoke to Defendant in 5 the courtyard and the medical department several times about his TENS unit. Plaintiff 6 stated that he believed Defendant harbored animosity towards him because Plaintiff 7 participated in a prison riot around 2010 that resulted in serious injuries to a prison 8 employee. Plaintiff further testified that another prison employee told Plaintiff that 9 Defendant did not like Plaintiff. Plaintiff further testified that he was unable to use his 10 TENS unit in the medical department because the property department refused to provide 11 the TENS unit to the medical department. 12 The Court finds Defendant’s testimony generally credible. Defendant’s statement 13 that he was simply following policy when he determined that Plaintiff’s TENS unit was 14 contraband is supported by DO 909, which prohibits inmates from possessing batteries. 15 Indeed, it appears that Defendant would have violated DO 909 by allowing Plaintiff to 16 receive his TENS unit as Plaintiff argues Defendant should have. Furthermore, the Court 17 has no reason to believe Defendant’s decision was motivated by hostility to Plaintiff. 18 Although Plaintiff participated in a prison riot that injured another prison employee, this 19 incident occurred approximately seven years prior to the period relevant to this case. 20 Given this span of time, the Court does not find that this event impacted Defendant’s 21 decision not to allow Plaintiff to possess his TENS unit. Also, the Court is unpersuaded 22 by Plaintiff’s testimony that he heard from another prison employee that Defendant did 23 not like him. The Court does not find this second-hand statement from an unidentified 24 sergeant sufficient to overcome Defendant’s testimony. Although Defendant testified 25 candidly that he occasionally gets annoyed with certain inmates who are difficult to 26 manage, the Court does not find that Defendant was motivated by any particularized 27 hostility towards Plaintiff in this case. 28 Additionally, the Court finds credible Plaintiff’s testimony regarding his injuries 1 and the severity of the resulting pain. Plaintiff’s testimony is supported by the fact that 2 prison medical providers have repeatedly authorized Plaintiff to possess and use the 3 TENS unit over the course of several years. On other points, however, the Court does not 4 find Plaintiff credible as his testimony is based on his belief rather than any first-hand 5 knowledge and is unsupported by other evidence. Additionally, the Court notes that 6 Plaintiff’s testimony was lacking in particularity, which renders the testimony less 7 credible. For example, Plaintiff testified that he asked a medical provider at the prison 8 about his TENS unit, and Plaintiff believed that the provider contacted Defendant. 9 Plaintiff also testified that he repeatedly wrote letters to the property department and 10 received a letter back from Defendant at one point, but Plaintiff did not offer the letter as 11 evidence in this case and could not recall what the letter said. Because they are 12 unsupported by witnesses with personal knowledge or other evidence, the Court finds 13 that statements such as these are unreliable. Accordingly, the Court finds that Defendant 14 did not have notice of Plaintiff’s medical condition during the relevant period. 15 II. ANALYSIS AND CONCLUSIONS OF LAW 16 a. Administrative Exhaustion 17 As a preliminary matter, the Court finds that Defendant waived the affirmative 18 defense of administrative exhaustion. 19 1. Legal Standard 20 The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust 21 administrative remedies before suing in federal court. 42 U.S.C. § 1997e(a). The PLRA’s 22 exhaustion requirement is an affirmative defense that a defendant must plead and prove. 23 Jones v. Bock, 549 U.S. 199, 211–17 (2007). “[T]he defendant’s burden is to prove that 24 there was an available administrative remedy, and that the prisoner did not exhaust that 25 available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). The failure of a 26 defendant to do so results in a waiver of the defense. Lira v. Herrera, 427 F.3d 1164, 27 1171 (9th Cir. 2005); see also Tapia Fierro v. Wilmot, No. CV 19-03096-PHX-JAT 28 (ESW), 2020 WL 8483004, at *3 (D. Ariz. June 23, 2020); Ross v. Arpaio, No. CV 05- 1 4177-PHX-MHM, 2008 WL 4277666, at *2 (D. Ariz. Sept. 16, 2008). “To the extent 2 evidence in the record permits, the appropriate device is a motion for summary judgment 3 under Rule 56. If summary judgment is not appropriate, the district judge may decide 4 disputed questions of fact in a preliminary proceeding.” Albino, 747 F.3d at 1168. “[T]he 5 exhaustion question in PLRA cases should be decided as early as feasible.” Id. 6 2. Procedural History 7 The original Scheduling and Discovery Order in this case provided that “[a]ny 8 motion seeking dismissal of Plaintiff’s claims or judgment as a matter of law on 9 Plaintiff’s claims based on an assertion that Plaintiff failed to administratively exhaust his 10 claims shall be brought no later than June 13, 2019.” (Doc. 25 at 2). The Order also set 11 October 11, 2019 as the dispositive motion deadline. (Id.). It further provided that “[i]f 12 Defendant files a motion for summary judgment . . . based on Plaintiff’s failure to 13 exhaust prison administrative remedies as required by 42 U.S.C. § 1997e(a) and the Court 14 denies that motion, Defendant may file a second motion for summary judgment without 15 requesting permission from the Court within forty-five (45) days of ruling on the failure 16 to exhaust or on November 25, 2019, whichever is later.” (Id.). 17 On June 11, 2019, Defendant moved for “an extension of time to file a dispositive 18 motion based on exhaustion of administrative remedies.” (Doc. 45 at 1). The motion 19 provided that it was “made for the purpose of providing a fully-briefed motion that will 20 provide the Court the necessary information to make a ruling.” (Id. at 2). The Court 21 granted the motion and extended the deadline “to file a dispositive motion based on 22 exhaustion” to July 1, 2019. (Doc. 46). Defendant did not file a motion within that 23 deadline. 24 On August 26, 2019, following a motion by Plaintiff, the Court “extend[ed] 25 deadlines that had not expired at the time of Plaintiff’s motion.” (Doc. 67 at 1). 26 Accordingly, the dispositive motion deadline was extended to November 25, 2019. (Id. at 27 2). On November 25, 2019, Defendant filed a motion to again extend the dispositive 28 motion deadline; this time, the motion was based on Defendant’s inability to acquire 1 Plaintiff’s medical records and made no mention of exhaustion. (Doc. 89). The Court 2 granted the motion and extended the deadline to February 24, 2020. (Doc. 93). 3 On February 24, 2020, Defendant moved for another extension of the dispositive 4 motion deadline (again based on medical records), and the Court granted the motion and 5 extended the deadline to April 27, 2020. (Doc. 101; Doc. 102). Defendant did not file a 6 motion within that deadline, and the Court later denied Plaintiff’s request to “revive this 7 expired deadline” and extend the deadline further. (Doc. 131 at 4). 8 Since Defendant’s June 11, 2019 motion to extend the deadline, Defendant’s first 9 mention of administrative exhaustion was in the parties’ proposed final pretrial order 10 filed on January 19, 2021 in anticipation of a jury trial. (Doc. 168-1). Defendant included 11 among his contested issues of law and fact, “Whether Plaintiff exhausted administrative 12 remedies prior to filing this lawsuit as to his claims.” (Id. at 6). 13 On April 30, 2021, the parties filed the updated proposed final pretrial order to 14 reflect that this case was set for a bench trial. (Doc. 201-1). In the updated proposed final 15 pretrial order, Defendant included among his proposed findings of fact a discussion of 16 ADOC’s inmate grievance procedures and stated that “[t]here is no evidence that Plaintiff 17 submitted a grievance,” and even if Plaintiff did, “there is no evidence that Plaintiff 18 submitted a grievance appeal to any level.” (Id. at 8). 19 That same day (six business days before trial), the parties jointly moved for a 20 pretrial hearing “for the purpose of resolving the issue of exhaustion of administrative 21 remedies.” (Doc. 202). The Court granted the motion and scheduled the hearing for 22 immediately preceding trial. (Doc. 203). 23 At the hearing, both parties acknowledged that the request for a hearing was 24 effectively an untimely dispositive motion, and, the Court denied the motion on that 25 basis. Following the close of Plaintiff’s case, Defendant moved for judgment as a matter 26 of law under Federal Rule of Civil Procedure (“Rule”) 503 in part because Defendant 27 believed the Court should have allowed Defendant to present evidence related to 28 3 Because Rule 50 applies only to jury trials, the Court interpreted Defendant’s Rule 50 motion as a motion for judgment on partial findings under Rule 52(c). 1 administrative exhaustion, which the Court denied. 2 3. Analysis and Conclusion 3 On the record before the Court, the Court concludes that Defendant waived the 4 affirmative defense of exhaustion. The record evinces no attempt on Defendant’s part to 5 resolve this issue “as early as feasible.” See Albino, 747 F.3d at 1168. To the contrary, 6 Defendant did not bring the exhaustion issue to the Court’s attention despite several 7 opportunities to do so. Defendant did not file a motion to dismiss on this basis despite 8 moving for an extension of time to do so in June 2019. Defendant also did not move for 9 summary judgment on exhaustion before the April 2020 deadline and made no further 10 mention of exhaustion until the January 2021 proposed pretrial order for a jury trial. 11 Setting aside the fact that administrative exhaustion is an issue for the Court to resolve 12 rather than a jury, see id., the inclusion of the issue in the January 2021 proposed pretrial 13 order indicates that Defendant planned to wait until trial to address the issue. 14 A former Judge of this Court decided an analogous issue in Ross v. Arpaio. In that 15 case, the defendant filed a motion to dismiss for failure to exhaust administrative 16 remedies. 2008 WL 4277666, at *1. The Court denied the motion but allowed the 17 defendant to file a new motion within 10 days of the denial, which the defendant did not 18 do. Id. The Court then issued a scheduling order establishing subsequent dates by which 19 motions to dismiss and motions for summary judgment could be filed, and the defendant 20 did not file any such motion within the deadlines. Id. The defendant, however, filed a 21 motion to dismiss 14 months after the order regarding the defendant’s first motion to 22 dismiss, 11 months after the subsequent motion to dismiss deadline, and 3 months after 23 the summary judgment motion deadline. Id. The Court concluded: 24 After Defendant’s first Motion to Dismiss was denied, he was given two, arguably three, more bites at the apple. Yet he 25 failed to raise the nonexhaustion argument either within 10 days of the Order denying the first motion, within the . . . 26 motions to dismiss deadline, or even within the . . . dispositive motions deadline. On this record, Defendant has 27 waived the affirmative defense of nonexhaustion. And, as set out by Plaintiff, there is no right to a jury determination on 28 exhaustion; rather, the issue should be decided early in litigation. 1 The Court concludes that Defendant waived the exhaustion defense by failing to raise it within the proper time period 2 and, with this issue decided, it would be improper to raise it at trial. 3 4 Id. at *3. 5 As in Ross, Defendant had several opportunities to address the exhaustion issue by 6 dispositive motion, but failed to do so. Accordingly, on this record, the Court concludes 7 that Defendant waived the exhaustion affirmative defense. 8 b. Deliberate Indifference 9 “[D]eliberate indifference to serious medical needs of prisoners constitutes the 10 unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle 11 v. Gamble, 429 U.S. 97, 104 (1976) (internal citation omitted). To show Plaintiff’s Eighth 12 Amendment rights have been violated, Plaintiff must make two showings: “First, the 13 plaintiff must make an ‘objective’ showing that the deprivation was ‘sufficiently serious’ 14 to form the basis for an Eighth Amendment violation. Second, the plaintiff must make a 15 ‘subjective’ showing that the prison official acted ‘with a sufficiently culpable state of 16 mind.’” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quoting Wilson v. Seiter, 17 501 U.S. 294, 298 (1991)). The plaintiff must “make a subjective showing that the 18 deprivation occurred with deliberate indifference to the inmate’s health or safety.” 19 Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “This second prong— 20 defendant’s response to the need was deliberately indifferent—is satisfied by showing (a) 21 a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) 22 harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 23 Given the Court’s factual findings set forth above, Plaintiff has not met his burden 24 of showing that Defendant acted with deliberate indifference to his health, and 25 accordingly, judgment for Defendant is appropriate. At the time Defendant decided that 26 Plaintiff could not be in possession of his TENS unit, DO 909 provided that inmates in 27 detention could not possess batteries, and Defendant credibly testified that he was 28 following that policy in good faith. Furthermore, although Defendant knew that the 1 TENS unit was a medical item, Defendant credibly testified that he did not know about 2 the severity of Plaintiff’s back condition at the time he made the decision. And other than 3 second-hand reports from Plaintiff who had no personal knowledge, the trial record does 4 not indicate that any communication occurred between prison medical professionals and 5 Defendant that would have made Defendant subsequently aware of Plaintiff’s medical 6 condition. Given Defendant’s lack of subjective awareness, the Court finds that Plaintiff 7 has not met his burden of showing Defendant acted with deliberate indifference. 8 c. Doe Defendants 9 On November 30, 2018, this Court Ordered: “Within 120 days from the filing date 10 of this Order, Plaintiff must file a ‘Notice of Substitution,’ substituting Defendant 11 Corizon Utilization Management Unit John and Jane Doe’s actual name. The Court may 12 dismiss without prejudice Defendant Corizon Utilization Management Unit John and 13 Jane Doe if Plaintiff fails to timely file a notice of substitution, unless Plaintiff seeks and 14 is granted an extension of time.” (Doc. 11 at 11). After several interim extensions, on 15 August 26, 2019, the Magistrate Judge to whom this case was assigned granted a motion 16 for extension of time filed by Plaintiff and ordered: “Plaintiff must file a ‘Notice of 17 Substitution,’ substituting Defendant Corizon Utilization Management Unit John Doe and 18 Jane Doe’s actual names by October 3, 2019. Failure to comply with the Court’s order 19 may result in the dismissal of the claims against Defendant Corizon Utilization 20 Management Unit John and Jane Doe without prejudice.” (Doc. 67 at 2). This was the 21 last granted extension of time regarding filing a Notice of Substitution for the Doe 22 Defendants, and Plaintiff failed to file any Notice of Substitution. Later, Plaintiff filed an 23 objection to a Magistrate Judge Order. This Court summarized the state of the Doe 24 Defendants as of January 22, 2020 as follows: 25 Finally, Plaintiff asks the Court to explain whether “a decision was made or is being made in regard to Corizon 26 defendants, so Plaintiff may refile and/or act accordingly.” (Doc. 97 at 5–6). It does not appear that Plaintiff seeks any 27 type of relief but merely explanation. If Plaintiff is seeking relief from the Court’s order dismissing Corizon Utilization 28 Management Unit John and Jane Doe, (see Doc. 67), it is denied as untimely and procedurally inappropriate. 1 The Court previously noted it would dismiss Corizon Utilization Management Unit John and Jane Doe as parties on 2 November 30, 2018 (Doc. 11), on March 14, 2019 (oe. 26), on May 15, 2019 (Doc. 38), on July 19, 2019 (Doc. 61), and 3 on August 26, 2019 (Doc. 67) because it is impossible for the United States Marshal to serve a summons and complaint 4 upon anonymous defendants. The Court originally gave Plaintiff 12 days to cure by filing notices of substitution for 5 all anonymous defendants with each defendant’s actual name, (Doc. 11 at 11), but he failed to do so. The Court extended 6 this deadline many times, (Docs. 26, 38, 61, 67), and eventually gave Plaintiff until October 3, 2019—over six 7 months after the original deadline—to file a notice of substitution for any anonymous defendant. (Doc. 67). 8 Therefore, Plaintiff had nearly ten months to file notices of substitution with the actual names of the anonymous 9 defendants, and the Court’s orders were not equivocal about what Plaintiff had to do. Plaintiff failed to do so, and the 10 Court then dismissed the claims against these anonymous defendants, just as it said it would, on November 22, 2019. 11 || (Doc. 100 at 7). 13 By these Findings of Fact and Conclusions of Law, the Court now formalizes the dismissal of the Doe Defendants referenced in this Court’s January 22, 2020 Order. 15] I. JUDGMENT 16 IT IS ORDERED that the Clerk of the Court shall enter judgment as follows: 17 (1) in favor of Defendant Harris and against Plaintiff for the reasons stated above; 18 (2) dismissing the Doe Defendants, without prejudice; and 19 (3) dismissing all other Defendants without prejudice for the reasons stated in this 30 Court’s Order of November 30, 2018. (See Doc. 11). 1 Dated this 24th day of May, 2021. 22 23 24 James A. Teilborg 25 Senior United States District Judge 26 27 28 -10-