Arther v. Corizon Health Incorporated ( 2023 )

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jonathan M. Arther, No. CV-20-00189-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Corizon Health Incorporated, et al., 13 Defendants. 14 15 I. Procedural History 16 Plaintiff Jonathan M. Arther, who is currently confined in the Arizona State Prison 17 Complex (ASPC)-Tucson and is represented by counsel,1 brought this civil rights action 18 pursuant to 42 U.S.C. § 1983. Defendants Eye Doctors of Arizona PLLC and Dr. Warren 19 Heller move for summary judgment on the merits of Plaintiff’s Eighth Amendment medical 20 care claims. (Doc. 122.) Defendants State of Arizona, Corizon Health Incorporated 21 (Corizon), Dr. Christopher Lee Johnson, and Registered Nurses (RNs) Kimberly Marie 22 Brinton, Claudine C. Kabongo, and Cynthia Glee Walton-Sparks separately move for 23 summary judgment on the merits of Plaintiff’s Eighth Amendment medical care claims and 24 filed a Joinder in Defendants Eye Doctors of Arizona and Heller’s Motion for Summary 25 Judgment. (Doc. 131.) The Motions are fully briefed. (Doc. 138, 149, 154, 155). 26 After the summary judgment briefing was complete, Defendant Corizon filed a 27 Suggestion of Bankruptcy and Notice of Automatic Stay. (Doc. 158.) On March 10, 2023, 28 1 Plaintiff was pro se when he filed the original Complaint. 1 the parties filed Responses to the Notice of Automatic Stay. (Docs. 160, 161, 162.) In a 2 March 13, 2023 Order, the Court noted that Corizon and the five non-debtor co- 3 Defendants—that is, the State of Arizona, Johnson, Walton-Sparks, Brinton, and 4 Kabongo—had not filed a motion in the bankruptcy proceeding to have the automatic stay 5 extended to this case or applied as to the non-debtor co-Defendants. (Doc. 163.) The Court 6 further determined that the automatic stay did not apply to any of Corizon’s co-Defendants. 7 (Id.) 8 On April 26, 2023, Defendants State of Arizona, Johnson, Walton-Sparks, Brinton, 9 and Kabongo filed a Motion to extend the deadline to file a motion to extend the stay in 10 the bankruptcy proceeding. (Doc. 166.) In a May 12, 2023 Order, the Court granted the 11 Motion and gave Defendants until May 15, 2023 to file a motion to extend the stay in 12 Corizon’s bankruptcy proceedings. (Doc. 167.) It appears Defendants did not file a motion 13 to extend the stay in the bankruptcy case. 14 II. Fourth Amended Complaint 15 As relevant here, in the Fourth Amended Complaint (FAC), Plaintiff asserts claims 16 regarding inadequate treatment of his eye conditions, which ultimately resulted in total loss 17 of vision in his left eye. (Doc. 66 at 2.) In addition to Defendants Eye Doctors of Arizona, 18 Heller, State of Arizona, Corizon, Brinton, Johnson, Kabongo, and Walton-Sparks,2 19 Plaintiff also named as Defendants former Arizona Department of Corrections, 20 Rehabilitation and Reentry (ADC) Director Charles Ryan, Correctional Officers Ferman 21 and Stevens, and the “IFF Liaison.” (Id. at 1-2.) 22 In a July 15, 2021 Order, the Court dismissed Ryan for failure to serve. (Doc. 78.) 23 In a September 13, 2021 Order, the Court dismissed Defendants Ferman, Stevens, and IFF 24 liaison for failure to prosecute. (Doc. 96.) The remaining claims are Counts One, Two, 25 and Three. 26 In Count One, Plaintiff asserts a claim under Arizona Revised Statutes, § 31-201.01, 27 28 2 Defendants Brinton, Walton-Sparks, Johnson, and Kabongo were fictitiously identified in the Fourth Amended Complaint but were later substituted. 1 against the State of Arizona. (Id. at 9-10 ¶¶ 66-75.) In Count Two, Plaintiff asserts an 2 Eighth Amendment claim against Defendants Heller, Brinton, Johnson, Kabongo, and 3 Walton-Sparks for deliberate indifference to his serious medical needs. (Id. ¶¶ 76-147.) In 4 Count Three, Plaintiff asserts a claim based on policy, practice, or custom against 5 Defendants Eye Doctors of Arizona and Corizon. (Id. ¶¶ 148-168.) 6 The remaining Defendants seeks summary judgment. 7 III. Summary Judgment Standard 8 A court must grant summary judgment “if the movant shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 10 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 11 movant bears the initial responsibility of presenting the basis for its motion and identifying 12 those portions of the record, together with affidavits, if any, that it believes demonstrate 13 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 14 If the movant fails to carry its initial burden of production, the nonmovant need not 15 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 16 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 17 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 18 contention is material, i.e., a fact that might affect the outcome of the suit under the 19 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 20 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 21 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 22 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 23 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 24 it must “come forward with specific facts showing that there is a genuine issue for trial.” 25 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 26 citation omitted); see Fed. R. Civ. P. 56(c)(1). 27 At summary judgment, the judge’s function is not to weigh the evidence and 28 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 1 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 2 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 3 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 4 IV. Facts 5 The following facts are relevant to both Motions for Summary Judgment. 6 Plaintiff is a prisoner in the custody of the Arizona Department of Corrections, 7 Rehabilitation and Reentry. While he was in custody, he began to experience increased 8 pressure in his left eye and blurry vision. (FAC ¶ 3.) On December 5, 2016, Plaintiff saw 9 Nurse Practitioner (NP) Christine Armenta for intake. (Doc. 132-1 at 2.) Plaintiff reported 10 a nine-year history of type 2 diabetes and a retinal tear secondary to eye trauma. (Id.) 11 Plaintiff could not recall his last diabetic eye exam or who diagnosed him with a retinal 12 tear. (Id.) NP Armenta noted that Plaintiff was taking 1000 mg of metformin, a diabetes 13 medication, and that she would continue the metformin and would refer Plaintiff for routine 14 follow-up once he was placed on a yard. (Id. at 4.) 15 On February 24, 2017, Plaintiff saw Dr. Adelberg at Southwest Eye Center. (FAC 16 ¶ 6.) Dr. Adelberg diagnosed Plaintiff with a moderately sized macular hole and 17 recommended surgical intervention. (Id. ¶ 7.) Dr. Adelberg prescribed Ofloxacin OS to 18 start one day prior to surgery and a Prednisolone Acetate OS until the bottle was gone, 19 starting the day after surgery. (Id. ¶ 8.) On March 29, 2017, Dr. Adelberg performed 20 surgery on Plaintiff’s left eye. (Doc. 132-1 at 70.) Subsequently, Plaintiff experienced 21 severe pain and significant pressure in his left eye. (FAC ¶ 11.) On April 4, 2017, Dr. 22 Adelberg prescribed additional medication to decrease the pressure in Plaintiff’s left eye. 23 (Id. ¶ 12.) 24 Thereafter, Plaintiff was moved to ASPC-Florence North Unit. (Id. ¶ 13.) The 25 medication Dr. Adelberg prescribed was not transferred to ASPC-Florence. (Id. ¶ 15.) On 26 May 3, 2017, Plaintiff saw Defendant Walton-Sparks for intake. (Doc. 132-1 at 10.) In 27 the Plan Notes for the visit, Defendant Walton-Sparks noted, “Pt takes kop [keep on 28 person] meds-from private prison-call to on[-]call provider-received orders for 1 medication.” (Id. at 12.) Defendant Walton-Sparks did not review Plaintiff’s medical 2 chart, and her intake notes do not mention that Plaintiff underwent retinal surgery the 3 previous month, was experiencing significant and ongoing pain, and was being treated by 4 the surgeon, Dr. Adelberg. (PSOF ¶ 2.) The same day, Chizoba Ngwube entered a verbal 5 order of 1000 mg of metformin for Plaintiff to keep on his person. (Id. at 12, 14.) 6 Plaintiff was supposed to have a follow-up visit with Dr. Adelberg on May 9, 2017 7 to have his intraocular pressure checked, but he did not. (PSOF ¶ 4.) On May 11, 2017, 8 Plaintiff saw Defendant Johnson for chronic care related to his diabetes. (Doc. 132-1 at 9 21.) During the visit, Plaintiff reported vision issues and stated that his last eye exam 10 occurred on March 4, 2017. (Id.) Plaintiff denied diabetic retinopathy. (Id.) Plaintiff 11 reported that he had eye surgery in April and was supposed to continue using eyedrops 12 after his surgery and have a follow-up visit with the surgeon. (Id. at 26.) Plaintiff reported 13 he was kicked in the eye two years prior, which created a macular hole. (Id.) Plaintiff 14 requested a follow-up visit with his eye surgeon and prescriptions for dorzolamide and 15 Combigan.3 (Id. at 28.) Defendant Johnson conducted a physical examination and 16 assessed a macular hole based on Plaintiff’s reported history. (Id.) Defendant Johnson 17 ordered dorzolamide three times daily, timolol three times daily, and brimonidine three 18 times daily. (Id. at 27.) 19 Following the May 11, 2017 visit, Defendant Johnson submitted a routine 20 consultation request for Plaintiff to see an offsite ophthalmologist. (Id. at 29.) In the 21 request, Defendant Johnson noted that Plaintiff underwent repair of the macular hole on 22 March 29, 2017, and he was supposed to have followed up with the surgeon on May 9, 23 2017, but he had been transferred from a private prison to ASPC-Florence and did not make 24 the May 9 appointment. (Id.) Defendant Johnson requested authorization for post- 25 operative follow-up and recommendations for continuation of several medications. (Id.) 26 27 3 Dorzolamide is used to treat increased pressure in the eye caused by open-angle glaucoma or hypertension of the eye. Combigan combines brimonidine tartrate and timolol 28 maleate solution and is used to treat high pressure inside the eye due to glaucoma or other eye diseases. 1 The request was reviewed and approved by Corizon’s Utilization Management Team, and 2 an appointment was scheduled for June 16, 2017. (Id. at 32.) Between May 11 and June 3 13, 2017, Defendant Johnson did not follow up on the consultation request. (PSOF ¶ 8.) 4 On May 15, 2017, Plaintiff received the dorzolamide, timolol, and brimonidine 5 eyedrops. (PSOF ¶ 9.) Plaintiff was not told how to properly administer the eyedrops, and 6 he experienced negative side effects when he started using the drops. (PSOF ¶¶ 5, 9.) 7 On May 24, 2017, Plaintiff submitted an HNR stating his left eye was painful, 8 tearing up, and swollen. (Doc. 132-1 at 47, 54.) Defendant Brinton saw Plaintiff the same 9 day. (Id. at 47.) Plaintiff reported recent left eye macular degeneration surgery and that 10 he had been using eyedrops “hit or miss” in the last week, which was when his eye became 11 red and blurry. (Id. at 48.) Plaintiff also reported that the blurry vision had been present 12 since the surgery. (Id.) Plaintiff rated his pain at 7.5/10. (Id.) Defendant Brinton observed 13 that his left eye was bloodshot. (Id.) Defendant Brinton contacted the pharmacist, who 14 advised her that Plaintiff’s eye drop medications should be administered one at a time with 15 5-10 minutes between medications. (Id. at 52-53.) Defendant Brinton communicated this 16 information to Plaintiff, and he stated he would begin administering the medications as 17 directed. (Id. at 52-53.) 18 On June 6, 2017, Plaintiff submitted an HNR stating his eye was painful and tearing 19 up. (Id. at 60, 64.) Defendant Walton-Sparks reviewed the HNR and saw Plaintiff the 20 same day. (Id. at 60.) Plaintiff stated he was taking eye drops, but they were irritating, 21 painful, and made his eyes tear up. (Id.) Plaintiff reported stopping the eye drops three 22 days prior and began using cold compresses. (Id.) Defendant Walton-Sparks checked his 23 visual acuity, which was 20/20 in his right eye, but he was unable to read the chart with his 24 left eye. (Id.) Defendant Walton-Sparks observed that his sclera was reddened and watery. 25 (Id.) Defendant Walton-Sparks advised Plaintiff to continue using cold compresses and 26 referred him to a provider for further evaluation. (Id. at 62.) 27 On June 13, 2017, Plaintiff saw Defendant Johnson. (Id. at 66.) Plaintiff reported 28 that he had a macular hole repaired in March 2017 and had seen the surgeon twice for 1 follow-up. (Id.) Plaintiff reported that he stopped using the eye medications on May 26, 2 2017 because they caused his eye to burn and tear, and he had swelling under the lower 3 eyelid. (Id.) Plaintiff reported he initially used the eyedrops at the same time until advised 4 to wait 10 minutes in between the drops. (Id.) Plaintiff stated that he saw the optometrist 5 three days prior, who told him he should return to see his eye surgeon as soon as possible. 6 (Id.) Plaintiff reported that during the visit with the optometrist, his eye pressure was 17 7 in the right eye and 27 in the left eye.4 (Id.) Plaintiff reported that his eye felt fine without 8 eyedrops, but when he used the eyedrops, his eye ached and was sensitive to light, and he 9 was concerned he was allergic to the eyedrops. (Id.) Plaintiff also reported hazy vision. 10 (Id.) 11 Defendant Johnson examined Plaintiff’s eyes, which were not red, swollen, or 12 irritated. (Id.) Defendant Johnson noted his May 11, 2017 consultation request for 13 ophthalmology was still pending. (Id. at 68.) Defendant Johnson noted that he spoke with 14 the clinical coordinator and that they were attempting to get Plaintiff in to see the surgeon 15 as soon as possible. (Id.) Defendant Johnson informed Plaintiff of the plan to get him 16 scheduled as soon as possible. (Id.) 17 On June 16, 2017, Plaintiff saw Dr. Adelberg. (Id. at 70.) Plaintiff reported that his 18 eye was throbbing and painful, and he had blurry vision. (Id.) Dr. Adelberg noted that 19 Plaintiff’s intraocular pressure was 13 in his right eye and 35 in his left eye. (Id. at 71.) 20 Plaintiff reported stopping his eyedrops two months prior because they made his eye swell 21 and tear. (Id.) Dr. Adelberg advised him the side effects of not using glaucoma drops and 22 potential damage that could occur. (Id. at 71.) Dr. Adelberg recommended Diamox to help 23 reduce Plaintiff’s eye pressure until he could see a glaucoma specialist, who could 24 determine which eyedrops would be beneficial. (Id.) Dr. Adelberg noted that Plaintiff’s 25 retina was stable but had not closed all the way, that the surgery was partially successful, 26 27 4 According to the Glaucoma Research Foundation, normal eye pressure ranges from 12-21 mm Hg, and eye pressure of greater than 21 mm Hg is considered higher than 28 normal. High eye pressure alone does not cause glaucoma, but it is a significant risk factor. See https://glaucoma.org/high-eye-pressure-and-glaucoma/ (last visited Aug. 24, 2023). 1 and that additional surgery was not recommended due to his increased intraocular eye 2 pressure and because it might not benefit Plaintiff in any event. (Id.) Dr. Adelberg 3 recommended obtaining a glaucoma evaluation. (Id.) 4 On June 19, 2017, NP Joanna Burns ordered 250 milligrams of acetazolamide (the 5 generic of Diamox) four times daily. (Id. at 77.) Defendant Walton-Sparks entered the 6 order. (Id. at 73.) 7 On June 20, 2017, Defendant Johnson saw Plaintiff for follow-up after his visit with 8 Dr. Adelberg. (Id. at 79.) Defendant Johnson reviewed Dr. Adelberg’s report and noted 9 that Dr. Adelberg had encouraged Plaintiff to use his prescribed eyedrops. (Id.) Defendant 10 Johnson noted that Plaintiff continued to refuse to use the eyedrops, although Dr. Adelberg 11 and Defendant Johnson advised him to use them. (Id.) Defendant Johnson noted that Dr. 12 Adelberg had recommended referral to a glaucoma specialist and a prescription of Diamox 13 four times daily in the interim. (Id.) Defendant Johnson noted that according to Dr. 14 Adelberg’s report, the surgery was partially successful in that the retina was stable, but the 15 hold did not close all the way. (Id.) Defendant Johnson noted that additional surgery to 16 “close the hole” was not recommended due to Plaintiff’s increased intraocular pressure. 17 (Id.) Defendant Johnson assessed Plaintiff as having glaucoma and prescribed 250 18 milligrams of acetazolamide four times daily, pursuant to Dr. Adelberg’s recommendation. 19 (Id. at 80.) Defendant Johnson also submitted an urgent consultation request for Plaintiff 20 to see a glaucoma specialist, pursuant to Dr. Adelberg’s recommendation. (Id. at 82.) The 21 consultation request was approved by June 26, 2017, and an appointment was scheduled 22 for August 7, 2017 with Defendant Heller. (Doc. 123-1 at 54.) 23 On June 28, 2017, Plaintiff refused a scheduled appointment with Defendant 24 Johnson, stating that his “issue ha[d] improved.” (Doc. 132-1 at 92.) On June 29, 2017, 25 Defendant Johnson noted that Plaintiff was refusing to use his eyedrops as prescribed and 26 that Plaintiff stated he was allergic to them. (Id. at 96.) Defendant Johnson noted that he 27 and Dr. Adelberg had recommended that Plaintiff use the eyedrops, but Plaintiff refused to 28 use them for the last two months. (Id.) Defendant Johnson noted that Plaintiff was taking 1 an oral medication for his intraocular pressure and that “[they were] awaiting approval” of 2 a follow-up visit with the ophthalmologist. (Id.) The following day, Defendant Johnson 3 discontinued the timolol, brimonidine, and dorzolamide. (Id. at 98.) 4 On August 7, 2017, Plaintiff saw Defendant Heller. (Doc. 123-1 at 43.) Defendant 5 Heller noted that the iris and fundi were both negative for diabetic retinopathy. (Id.) 6 Defendant Heller noted that Plaintiff had a severe injury to his left eye and that he had 7 surgery for a macular hole “several years” earlier, but his vision did not improve. (Id.) 8 Defendant Heller noted that Plaintiff had macular edema and a “partial hole,” but Heller 9 did not think it was related to Plaintiff’s decreased vision. (Id.) Defendant Heller 10 recommended an Avastin injection, which was performed. (Id.) Defendant Heller noted 11 he would see Plaintiff again in one month. (Id.) Defendant Heller sent short notes from 12 the visit to Corizon on the date of the visit and sent the dictated report on August 22, 2017. 13 (Id. at 44-48.)5 14 After Plaintiff returned from the appointment with Defendant Heller, RN Stacey 15 Fenwick reported to Defendant Johnson that Plaintiff returned without complication after 16 receiving eye injections. (Doc. 132-1 at 100.) Defendant Johnson had no additional orders 17 because he did not yet have detailed notes from the visit with Defendant Heller. (Id.; Decl. 18 of Christopher Johnson, Doc. 132-1 at 44 ¶ 11.) Plaintiff was “denied access to prescribed 19 ice upon his return to the prison[.]” (PSOF ¶ 13.) 20 On August 8, 2017, Defendant Johnson reviewed the short notes from Plaintiff’s 21 visit with Defendant Heller and noted that Plaintiff needed follow-up with the 22 ophthalmologist in one month. (Doc. 132-1 at 105.) 23 On August 19, 2017, Plaintiff saw Dr. Michael Rowley for a chronic care visit. (Id. 24 at 107.) Plaintiff requested ice because he had been receiving injections in his eye, but he 25 was again “denied access to medically prescribed ice.” (PSOF ¶¶ 19-20.) “Defendant[]s 26 failed to correctly input medical information into Plaintiff’s records.” (Id. ¶ 16.) 27 5 Beginning May 20, 2015, Corizon requested that consultants complete a 28 Practitioner Consultation Report on the date of service and within seven business days, to submit a typewritten Consultation Report to the Clinical Coordinator. (Id. at 15.) 1 Plaintiff’s medical records indicate that on August 19, 2017, Dr. Rowley entered an 2 urgent consultation request for Plaintiff to see Defendant Heller. (Doc. 132-1 at 112.) The 3 consultation request was reviewed and approved on August 28, 2017, and the appointment 4 was scheduled for September 18, 2017. (Doc. 123-1 at 57.) 5 On August 29, 2017, Defendant Johnson reviewed the detailed notes from Plaintiff’s 6 August 7, 2017 visit with Defendant Heller and noted that Plaintiff had received an Avastin 7 injection. (Doc. 132-1 at 119.) Defendant Johnson noted that a follow-up consultation had 8 already been requested by another provider. (Id.) 9 On September 12, 2017, Defendant Johnson renewed Plaintiff’s prescription for 5 10 milligrams glipizide twice daily for Plaintiff’s diabetes. (Doc. 132-1 at 124.) Defendant 11 Brinton entered the order the same day. (Id. at 121.) 12 On September 18, 2017, Plaintiff saw Defendant Heller. (Doc. 123-1 at 35.) 13 Defendant Heller noted that Plaintiff had a previous injury and surgery in his left eye and 14 that Plaintiff had “what could just be swelling,” but there was a “hole in it,” which was 15 possibly a macular hole. (Id.) Defendant Heller noted that he recommended an Avastin 16 injection to reduce the swelling. (Id.) Defendant Heller noted that Plaintiff’s vision in his 17 left eye was “count fingers.” (Id.) Defendant Heller assessed Plaintiff with macular edema 18 in his left eye and noted that he would check Plaintiff in a month with an OCT6 and that 19 his condition appeared to be stable. (Id.) Defendant Heller sent short notes to Corizon on 20 the day of the visit and sent the dictated report on September 27, 2017. (Id. at 35-38.) 21 On September 18, 2017, Plaintiff returned from his appointment with Defendant 22 Heller and saw Nursing Director Phyllis Raney. (Doc. 132-1 at 126.) Raney noted that 23 Plaintiff was to follow up in one month and that Dr. Babich was notified of Plaintiff’s 24 return “with no orders noted.” (Id. at 128.) 25 On October 5, 2017, Plaintiff saw Dr. Rowley. (Id. at 131.) Plaintiff told Dr. 26 Rowley that he was supposed to see Dr. Heller in October to receive an Avastin injection. 27 (Id.) Dr. Rowley noted that Plaintiff had seen an ophthalmologist and was assessed with 28 6 Optical coherence tomography. 1 macular edema with a likely macular hole. (Id.) Dr. Rowley noted the ophthalmologist 2 recommended an Avastin injection and follow-up in one month. (Id.) 3 The same day, Dr. Rowley submitted an urgent request for a consultation with 4 Defendant Heller. (Doc. 123-1 at 62.) Dr. Rowley noted that Plaintiff had been diagnosed 5 with “likely macular hole,” and an Avastin injection was recommended, along with follow- 6 up one month from the date of the service, or the end of October. (Id.) The request was 7 reviewed and approved on October 13, 2017, and an appointment was scheduled for the 8 week of November 13, 2017. (Doc. 123-1 at 62.) 9 On November 14, 2017, Plaintiff saw Defendant Heller for an abnormality of his 10 left macula. (Doc. 123-1 at 25.) Defendant Heller examined Plaintiff’s eye and noted that 11 it “look[ed] more like a macular hole now,” but it had some edema around it, and that if 12 the edema were to “go down, perhaps the macula, which seems normal, possibly normal 13 thickness, would restore his vision.” (Id.) Defendant Heller noted that he gave Plaintiff 14 an Avastin injection. (Id.) Defendant Heller noted that he asked Plaintiff to return in one 15 month, but Plaintiff said “it is too cold to come then because they make him stand in the 16 yard.” (Id.) Defendant Heller noted that he told Plaintiff to return in two months, and 17 Plaintiff “was happy with that.” (Id.) Defendant Heller noted that he thought Plaintiff 18 “should be followed up more frequently, though you cannot force him to get medical care.” 19 (Id.) Defendant Heller sent the short notes to Corizon on the day of the visit and sent the 20 dictated report on November 17, 2017.7 (Id. at 25-29.) 21 Plaintiff saw Nursing Director Raney after he returned from the appointment with 22 Defendant Heller. (Id. at 141.) Raney noted that no new orders were given. (Id.) 23 On November 16, 2017, Dr. Rowley submitted an urgent request for a consultation 24 with Defendant Heller, noting that Plaintiff had been diagnosed with macular edema with 25 “likely macular hole,” an Avastin injection was given, and follow-up in one month for a 26 repeat injection was recommended. (Doc. 123-1 at 65.) The request was reviewed and 27 28 7 The Practitioner Consultation Report for the November 14, 2017 visit incorrectly notes the date of service as October 14, 2017. (Doc. 123-1 at 29.) 1 approved on November 17, 2017, and an appointment was scheduled for the week of 2 December 18, 2017. (Id.) 3 On November 20, 2017, Plaintiff saw Dr. Robert Patel. (Id. at 160.) Plaintiff told 4 Dr. Patel that he was being punished and forced to stand outside in the cold, without 5 clothing, for his offsite appointments. According to Plaintiff’s medical records, during the 6 visit with Dr. Patel, Plaintiff reported that he was no longer taking eyedrops and he was 7 receiving eye injections. (Id.) Plaintiff reported that he was supposed to follow-up with his 8 eye doctor in a month but requested to wait two months. (Id.) Dr. Patel submitted a routine 9 request for a consultation with the ophthalmologist, noting that Plaintiff refused follow-up 10 within one month and asked to wait two months. (Id. at 160, 163.) The request was 11 reviewed and approved by November 28, 2017. (Id. at 163.) Plaintiff disputes the assertion 12 that he asked to wait two months and asserts that he did not ask to wait two months to see 13 Defendant Heller again. (PSOF ¶ 28.) 14 On December 18, 2017, Plaintiff saw Defendant Heller for follow-up for his diabetic 15 retinopathy. (Doc. 123-1 at 21.) (Id.) Plaintiff had pressure of 12 in each eye and some 16 mild macular edema. (Id.) Defendant Heller noted that Plaintiff told him that he “did not 17 want to come now because they make him stand outside without his clothes on and he is 18 cold.” (Id.) Defendant Heller noted that he recommended that Plaintiff return on March 19 10, 2018, which was Plaintiff’s “choice of day.” (Id.) Defendant Heller sent short notes 20 to Corizon on the day of the visit and sent the dictated report on December 27, 2017. (Id. 21 at 21-24.) Plaintiff asserts that after the December 18, 2017 visit, Defendant Heller 22 “decided to stop monthly follow up appointments and scheduled a three month follow up 23 instead.” (PSOF ¶ 30.) 24 Plaintiff saw Nursing Director Raney after his return from the visit with Defendant 25 Heller. (Doc. 132-1 at 170.) Raney noted that Defendant Heller’s office recommended 26 follow-up in March 2018 but had no other orders. (Id. at 173.) Plaintiff’s medical records 27 state that on December 19, 2017, Plaintiff refused acetazolamide. (Id. at 176.) However, 28 Plaintiff asserts that he did not “willingly refuse” the acetazolamide. (PSOF ¶ 31.) 1 On January 10, 2018, Plaintiff saw NP Deborah McGarry. (Id. at 178.) Plaintiff 2 requested medical exemption from education due to his eye problems. (Id.) Plaintiff 3 complained of blurred and worsening vision. (Id.) NP McGarry noted that Plaintiff was 4 unable to complete the visual acuity evaluation and could not identify any letter on the first 5 line of the chart. (Id.) NP McGarry noted that Plaintiff had an appointment with Defendant 6 Heller scheduled for March 10, 2018, but Plaintiff requested that the appointment “be 7 moved up so [he] can be evaluated immediately.” (Id.) 8 The same day, NP McGarry submitted an urgent request for a consultation with the 9 ophthalmologist, pursuant to Plaintiff’s request. (Doc. 123-1 at 74.) NP McGarry noted 10 that Plaintiff had a macular injury approximately two years earlier and had been followed 11 by ophthalmology for macular edema. (Id.) NP McGarry also noted that Plaintiff 12 previously underwent surgery that was partially successful in closing a macular hole and 13 had been receiving intraocular injections of Avastin for the edema. (Id.) NP McGarry 14 noted that Plaintiff had an appointment with Defendant Heller scheduled for March 10, 15 2018 for a check of his intraocular pressure and a possible Avastin injection, but due to 16 Plaintiff’s worsening vision, McGarry “would like this to be rescheduled to happen as soon 17 as possible.” (Id.) The request was reviewed and approved by January 11, 2018, and an 18 appointment with Defendant Heller was scheduled for February 6, 2018. (Doc. 123-1 at 19 74.) 20 On February 6, 2018, Plaintiff saw Defendant Heller. (Id. at 16.) Defendant Heller 21 noted that Plaintiff presented with decreased vision in both eyes, which was much more 22 severe in the left eye. (Id.) Defendant Heller noted that Plaintiff reported he had macular 23 surgery in March 2017. (Id.) Defendant Heller noted that Plaintiff’s visual acuity in his 24 left eye was 20/300, and the interocular pressures were 17 OU. (Id.) Defendant Heller 25 also noted that Plaintiff had cataracts in both eyes. (Id.) Defendant Heller diagnosed 26 Plaintiff with a macular hole in both eyes, non-prolific diabetic retinopathy with cystoid 27 macular edema in the left eye, and a mature cataract in the left eye. (Id.) Defendant Heller 28 noted that he would observe the macular holes and the mature cataract and consider 1 treatment in the future. (Id.) Defendant Heller noted that Plaintiff reported improved 2 vision with previous Avastin injections and requested another injection during the visit, 3 which Defendant Heller did. (Id.) Defendant Heller sent short notes to Corizon on the date 4 of the visit and sent the dictated report to Corizon on February 16, 2018. (Id. at 16, 18-20.) 5 On February 8, 2018, NP McGarry reviewed notes from Plaintiff’s February 6 visit 6 with Defendant Heller. (Doc. 132-1 at 192.) NP McGarry submitted another urgent 7 request for ophthalmology follow-up. (Id. at 195.) The request was reviewed and approved 8 on February 12, 2018. (Doc. 123-1 at 11.) 9 On March 6, 2018, Plaintiff saw Defendant Heller. (Id. at 2.) Defendant Heller 10 measured Plaintiff’s visual acuity as 20/400 in his left eye, examined Plaintiff retinas, 11 which were attached, and checked the intraocular pressure in both eyes, which were within 12 normal limits. (Id.) Defendant Heller noted that Plaintiff had a macular hole and some 13 “bubbled up areas around it.” (Id.) Defendant Heller noted that Plaintiff needed to be 14 referred to a retinal specialist, and, although it was not an emergency, the referral should 15 be done within a relatively reasonable time, one or two months. (Id.) Defendant Heller 16 noted that he told Plaintiff that he might need surgical intervention in his left eye, but that 17 was for the retinal specialist to decide. (Id.) The same day, Defendant Heller sent short 18 notes regarding his diagnosis and recommendations for follow-up care. (Id. at 3-4.) 19 V. Defendants State of Arizona, Corizon, Brinton, Johnson, Kabongo, and Walton-Sparks’s Motion 20 21 A . State Tort Claim against State of Arizona 22 The State of Arizona argues that it is entitled to Eleventh Amendment immunity. 23 Under the Eleventh Amendment to the Constitution of the United States, a state may not 24 be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 25 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 Arizona Revised Statutes, § 31-201.01, governs the duties of the ADC Director with 27 respect to medical treatment for ADC prisoners. Under the statute, the director must 28 “provide medical and health services for [] prisoners. The director may contract for 1 professional services to assist the director in carrying out this responsibility on behalf of 2 the state[.]” Ariz. Rev. Stat. § 31-201.01(D). The statute waives Arizona’s immunity 3 from suit in state courts, but it does not waive Arizona’s Eleventh Amendment immunity 4 from suit in federal courts. Thus, Defendant State of Arizona is immune from Plaintiff’s 5 claim under § 31-201.01, and the Court will grant summary judgment in favor of the State 6 of Arizona. 7 B. Corizon 8 As discussed above, this case was automatically stayed as to Corizon due to its 9 pending bankruptcy proceeding. The Court will deny the Motion for Summary Judgment 10 as to Corizon without prejudice to refiling as to Corizon if the stay is lifted. Regarding the 11 stay, Plaintiff is required to prosecute this case. See O’Donnell v. Vencor Inc., 466 F.3d 12 1104, 1110 (9th Cir. 2006) (stay did not preclude dismissal of case against debtor based on 13 plaintiff’s failure to prosecute). To that end, Plaintiff shall either dismiss this case as to 14 Defendant Corizon (without prejudice to pursuing any claims in bankruptcy court) or move 15 the bankruptcy court to lift the automatic stay to allow this case to go forward in this forum. 16 As a result, claims against Defendant Corizon will be dismissed, without prejudice, without 17 further notice on October 29, 2023, unless the Court is advised that the bankruptcy stay has 18 been lifted, or a request for a lifting of the bankruptcy stay has not been ruled upon by the 19 bankruptcy court. If the stay is lifted, Corizon must refile its motion for summary judgment 20 within 15 days of the stay being lifted. 21 C. Eighth Amendment Claims 22 1. Legal Standard 23 Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 24 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 25 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two 26 prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 27 First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 28 omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could 1 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 2 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds 3 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 4 citation omitted). Examples of a serious medical need include “[t]he existence of an injury 5 that a reasonable doctor or patient would find important and worthy of comment or 6 treatment; the presence of a medical condition that significantly affects an individual’s 7 daily activities; or the existence of chronic and substantial pain.” McGuckin, 974 F.2d at 8 1059-60. 9 Second, a prisoner must show that the defendant’s response to that need was 10 deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference 11 if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the 12 knowledge component, the official must both be aware of facts from which the inference 13 could be drawn that a substantial risk of serious harm exists, and he must also draw the 14 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 15 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 16 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 17 Cir. 2002) (internal citations and quotation marks omitted), or when they fail to respond to 18 a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. Deliberate indifference 19 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. 20 Farmer, 511 U.S. at 835. “Neither negligence nor gross negligence will constitute 21 deliberate indifference.” Clement v. California Dep’t of Corrs., 220 F. Supp. 2d 1098, 22 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 23 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” do not 24 support a claim under § 1983). “A difference of opinion does not amount to deliberate 25 indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 26 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim 27 against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State 28 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. 1 The action must rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 2 U.S. at 105. 3 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 4 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see 5 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing medical 6 treatment does not constitute Eighth Amendment violation unless delay was harmful). 7 2. Serious Medical Need 8 Defendants do not dispute that Plaintiff’s eye issues were a serious medical need. 9 The evidence indicates that Plaintiff suffered a serious injury that required years of 10 treatment, including two surgeries. The record supports the existence of a serious medical 11 need. See McGuckin, 974 F.2d at 1059-60. 12 3. Deliberate Indifference – Individual Defendants 13 To demonstrate deliberate indifference, Plaintiff must show that “the course of 14 treatment [Defendants] chose was medically unacceptable under the circumstances” and 15 they chose this course “in conscious disregard of an excessive risk to [P]laintiff’s health.” 16 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). A 17 difference of opinion with a medical provider about the appropriate medical diagnosis or 18 treatment does not establish a deliberate indifference claim. Id. 19 The inquiry into an individual defendant’s liability for deliberate indifference “must 20 be individualized and focus on the duties and responsibilities of each individual defendant 21 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 22 Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see Rizzo v. Goode, 423 U.S. 362, 370-71, 23 375–77 (1976). 24 a. Defendant Walton-Sparks 25 The available evidence indicates that Plaintiff saw Defendant-Walton twice. 26 Plaintiff contends that Defendant Walton-Sparks failed to ascertain the medications that 27 were prescribed to Plaintiff during the May 3, 2017, intake appointment and failed to 28 review Plaintiff’s medical chart and medical records at the time of his intake appointment. 1 (Doc. 138 at 3.) Plaintiff asserts that his medical records were “incorrect/incomplete” at 2 the time of his transfer and that the eyedrops Dr. Adelberg ordered were supposed to be 3 transported with Plaintiff on his person. (Id.) Plaintiff argues he was transported without 4 his eyedrops, which “ultimately caused him significant pain and permanent vision loss.” 5 Plaintiff has not presented any evidence to support that Defendant Walton-Sparks 6 knew or should have known that his medical records were incomplete or inaccurate or that 7 he told Walton-Sparks that he had been prescribed eyedrops that should have been 8 transported with him but were not. And even if Defendant Walton-Sparks should have, for 9 example, asked Plaintiff whether he had been prescribed any other medication, that might 10 constitute negligence, but it does not amount to deliberate indifference. 11 Plaintiff next saw Defendant Walton-Sparks on June 6, 2017. Defendant Walton- 12 Sparks checked Plaintiff’s visual acuity, examined his eye, observed that the sclera was 13 reddened and watery, advised Plaintiff to continue using cold compresses, and referred him 14 to a provider for further evaluation. The available evidence does not support that 15 Defendant Walton-Sparks failed to address Plaintiff’s pain and suffering. Plaintiff has not 16 presented any evidence to support that Defendant Walton-Sparks’ actions during the June 17 6 visit were medically unacceptable under the circumstances. 18 On this record, no reasonable jury could conclude that Defendant Walton-Sparks 19 was aware of and disregarded a substantial risk of serious harm to Plaintiff. The Court 20 concludes there is no genuine dispute of material fact regarding whether Defendant 21 Walton-Sparks was deliberately indifference to Plaintiff’s serious medical needs, and 22 summary judgment will be granted in her favor. 23 b. Defendant Brinton 24 The available evidence demonstrates that Defendant Brinton saw Plaintiff once, on 25 May 24, 2017. During that visit, Defendant Brinton examined Plaintiff’s eye, spoke to the 26 on-call provider and the pharmacist, obtained instructions about administering the 27 eyedrops, and conveyed this information to Plaintiff. The only other evidence of Defendant 28 Brinton’s involvement in Plaintiff’s medical care is that on September 12, 2017, Defendant 1 Brinton entered Defendant Johnson’s order for renewal of Plaintiff’s glipizide. 2 Plaintiff has not presented any evidence to support that Defendant Brinton failed to 3 respond to his complaints or that the steps Brinton took were medically unacceptable under 4 the circumstances. On this record, no reasonable jury could conclude that Defendant 5 Brinton was aware of and disregarded a substantial risk of serious harm to Plaintiff. The 6 Court concludes there is no genuine dispute of material fact regarding whether Defendant 7 Brinton was deliberately indifference to Plaintiff’s serious medical needs. 8 c. Defendant Johnson 9 The evidence indicates that Defendant Johnson saw Plaintiff on three occasions 10 between May 11, 2017 and September 12, 2017. During the May 11, 2017 visit with 11 Defendant Johnson, Plaintiff requested a follow up appointment with Dr. Adelberg. 12 Defendant submitted a request for consultation with Dr. Adelberg. Plaintiff contends that 13 Defendant Johnson realized the urgent need for an ophthalmology consultation on May 11, 14 2017 but failed to take any action until June 13, 2017. (Id. at 6.) Although the consultation 15 request was not approved by Plaintiff’s next visit with Defendant Johnson, there is no 16 evidence that Johnson was responsible for the delay in approving the consultation request 17 or in scheduling the appointment with Dr. Adelberg. 18 Plaintiff next saw Defendant Johnson on June 13, 2017. Defendant Johnson 19 contacted the clinical coordinator for an update on the status of the ophthalmology 20 consultation request and informed the coordinator that Plaintiff needed to be scheduled as 21 soon as possible. Plaintiff saw Dr. Adelberg three days later. 22 Plaintiff’s final visit with Defendant Johnson was on June 20, 2017 after Plaintiff’s 23 visit with Dr. Adelberg. Defendant Johnson reviewed Dr. Adelberg’s findings and 24 recommendations. Defendant Johnson assessed Plaintiff as having glaucoma and 25 prescribed acetazolamide pursuant to Dr. Adelberg’s recommendation. Defendant Johnson 26 also submitted an urgent consultation request for Plaintiff to see a glaucoma specialist, 27 pursuant to Dr. Adelberg’s recommendation. 28 After the June 20, 2017 visit, Defendant Johnson’s only involvement in Plaintiff’s 1 care was that Johnson reviewed the notes from Plaintiff’s August 7, 2017 visit with 2 Defendant Heller, and Johnson renewed Plaintiff’s prescription for glipizide. 3 Plaintiff has not presented any evidence to support that Defendant Johnson failed to 4 respond to Plaintiff’s complaints or that Johnson’s decisions were medically unacceptable 5 under the circumstances. On this record, no reasonable jury could conclude that Defendant 6 Johnson was aware of and disregarded a substantial risk of serious harm to Plaintiff. The 7 Court concludes there is no genuine dispute of material fact regarding whether Defendant 8 Johnson was deliberately indifference to Plaintiff’s serious medical needs. 9 d. Defendant Kabongo 10 According to the evidence in the record, Plaintiff saw Defendant Kabongo once, on 11 June 6, 2018. During that visit, Defendant Kabongo observed tears and redness in 12 Plaintiff’s left eye, but the area was not swollen. Plaintiff had 20/40 vision in his left eye. 13 Defendant Kabongo referred Plaintiff to NP Burns for further evaluation. 14 Plaintiff has not presented evidence to support that Defendant Kabongo failed to 15 respond to Plaintiff’s complaints or that Kabongo’s decisions were medically unacceptable 16 under the circumstances. On this record, no reasonable jury could conclude that Defendant 17 Kabongo was aware of and disregarded a substantial risk of serious harm to Plaintiff. The 18 Court concludes there is no genuine dispute of material fact regarding whether Defendant 19 Kabongo was deliberately indifferent to Plaintiff’s serious medical needs. 20 VI. Defendants Eye Doctors of Arizona and Heller’s Motion 21 A. Parties’ Arguments 22 1. Defendants’ Motion 23 Defendants Eye Doctors of Arizona and Heller advance five arguments to support 24 their Motion for Summary Judgment. First, Defendants argue that Defendant Eye Doctors 25 of Arizona was not a state actor under § 1983. (Doc. 122 at 4.) Second, Plaintiff has not 26 presented evidence that Eye Doctors of America “had any policies or customs that caused 27 a deprivation of Plaintiff’s constitutional rights or that it was enforcing a Corizon or 28 governmental policy or custom that caused a deprivation of his constitutional rights.” (Id. 1 at 5.) Third, Eye Doctors of Arizona cannot be held vicariously liable for Defendant 2 Heller’s conduct. (Id.) Fourth, Plaintiff has not proven that Eye Doctors of Arizona or 3 Defendant Heller were deliberately indifferent to Plaintiff’s serious medical needs. (Id. at 4 6.) Fifth, in Arizona, an expert is required in cases like this “to establish that a healthcare 5 provider fell below the standard of care and caused an injury,” but Plaintiff failed to 6 disclose any medical evidence or testimony from a medical expert that his condition was 7 inadequately treated and/or worsened” under Defendant Heller’s care. (Id. at 7.) 8 2. Plaintiff’s Response 9 In his Response, Plaintiff contends Defendants are state actors because under 10 Arizona law, the state has a duty to provide medical care to prisoners. (Doc. 149 at 6.) 11 Plaintiff argues that when private medical physicians or business entities provide medical 12 care to prisoners, “it is presumed that they are state actors.” (Id.) Plaintiff further argues 13 that Defendant Heller was aware of Corizon’s policy regarding timely submission of 14 prisoner medical records, that is, that consultants should submit their dictated reports 15 within five days of treating a prisoner, and Heller “repeatedly engaged in conduct” that 16 “significantly delayed [his] medical care and treatment.” (Id. at 7.) Plaintiff contends he 17 “offered clear evidence” that shows that Defendant Heller was aware that Plaintiff “was 18 being forced to stand outside in the cold without clothing in order to attend his medical 19 appointments” and was aware that Plaintiff’s serious condition required that he be seen 20 monthly, but Defendant Heller “failed to report Plaintiff’s disclosure of abuse,” which he 21 knew could substantially injury Plaintiff. (Id. at 7-8.) 22 3. Defendants’ Reply 23 In their Reply, Defendants argue that Plaintiff fails to present evidence that “a 24 deterioration occurred” or that it was caused by Defendant Heller. (Doc. 155.) 25 B. Discussion 26 1. Expert Testimony 27 Expert testimony is not generally required to show deliberate indifference, 28 especially in cases where a layperson can understand the evidence. Reidhead v. Ariz., CV- 1 12-00089-PHX-JAT, 2014 WL 2861046, at *5 (D. Ariz. June 24, 2014) (citing Sander v. 2 York, 446 F. App’x 40, 43 (9th Cir. 2011) (deliberate indifference claim did not require 3 expert testimony)). In any event, for the reasons discussed below, the Court concludes 4 Defendants Eye Doctors of Arizona and Heller are entitled to summary judgment, and the 5 Court need not decide whether expert testimony is necessary. 6 2. State Action 7 Defendants are private actors. There are four ways to determine whether a private 8 actor’s conduct qualifies as state action for purposes of § 1983: (1) the private actor 9 performs a public function; (2) the private actor engages in joint activity with a state actor; 10 (3) the private actor is subject to governmental compulsion or coercion; or (4) there is a 11 governmental nexus with the private actor. See Gorenc v. Salt River Project Agric Imp. 12 and Power Dist., 869 F.2d 503, 507–08 (9th Cir. 1989); Kirtley v. Rainey, 326 F.3d 1088, 13 1092 (9th Cir. 2003). “Under the public function test, when private individuals or groups 14 are endowed by the State with powers or functions governmental in nature, they become 15 agencies or instrumentalities of the State and subject to its constitutional limitations.” 16 Kirtley, 326 F.3d at 1093 (citing Lee v. Katz, 276 F.3d 550, 553–54 (9th Cir. 2002) (internal 17 quotation marks omitted)). The public function test is satisfied only on a showing that the 18 function at issue is “both traditionally and exclusively governmental.” Id. A private 19 physician or hospital that contracts with a public prison system to provide treatment 20 for prisoners performs a public function and acts under color of law for purposes of 21 1983. See West v. Atkins, 487 U.S. 42, 56 n. 15 (1988). Thus, for purposes of § 1983, 22 Defendants Eye Doctors of Arizona and Heller engaged in state action. 23 3. Worsened Condition 24 At Plaintiff’s September 18, 2017 visit with Defendant Heller, Plaintiff’s vision was 25 20/20 in his right eye, and “count fingers” in his left eye. During Plaintiff’s final visit with 26 Defendant Heller on March 6, 2018, Plaintiff’s visual acuity as 20/400 in his left eye. Thus, 27 Plaintiff’s visual acuity in his left eye improved between September 18, 2017 and March 28 6, 2018. 1 With respect to Plaintiff’s intraocular pressure, Plaintiff reported that in June 2017, 2 the optometrist noted that Plaintiff’s eye pressure was 17 in the right eye and 27 in the left 3 eye. At Plaintiff’s December 18, 2017 visit with Defendant Heller, Plaintiff had pressure 4 of 12 in each eye. At his February 6, 2018 visit with Defendant Heller, Plaintiff had 5 interocular pressure of 17 in both eyes. And at Plaintiff’s final visit on March 6, 2018, 6 Defendant Heller noted the intraocular pressure in both eyes was within normal limits. 7 Thus, Plaintiff intraocular pressure improved between June 2017 and March 6, 2018. 8 It is unclear from the evidence whether Plaintiff’s macular edema improved or 9 worsened while he was under Defendant Heller’s care. Defendant Heller noted during his 10 first visit with Plaintiff that he had macular edema and gave him an Avastin injection. 11 During the September 18, 2017 visit, Defendant Heller assessed Plaintiff with macular 12 edema and gave him another Avastin injection to reduce the swelling. At the November 13 14, 2017 visit, Defendant Heller noted that it “look[ed] more like a macular hole now,” but 14 it had some edema around it, and that if the edema were to “go down, perhaps the macula, 15 which seems normal, possibly normal thickness, would restore his vision.” Defendant 16 Heller noted that he gave Plaintiff an Avastin injection. During the December 18, 2017 17 visit, Defendant Heller noted that Plaintiff had some mild macular edema. At the February 18 6, 2018 visit, Defendant Heller again assessed Plaintiff with macular edema in the left eye 19 and noted that Plaintiff reported improved vision with previous Avastin injections and 20 requested another injection during the visit, which Defendant Heller did. Thus, from 21 Plaintiff’s own report, his vision improved with the Avastin injections. 22 With respect to the macular hole, Dr. Adelberg diagnosed Plaintiff with a 23 moderately sized macular hole on February 24, 2017, and performed surgery to try to close 24 the hole on March 29, 2017, well before Plaintiff’s first visit with Defendant Heller. During 25 Plaintiff’s last visit with Defendant Heller on March 6, 2018, Defendant Heller referred 26 Plaintiff to a retinal specialist to try to close the macular hole. The evidence does not 27 support that the macular hole worsened while Plaintiff was under Defendant Heller’s care. 28 1 In short, the available evidence does not demonstrate that Plaintiff’s eye conditions 2 worsened under Defendant Heller’s care. But even assuming Plaintiff’s condition 3 deteriorated during the time Defendant Heller treated him, the evidence does not support 4 that his condition worsened because of Defendant Heller’s treatment or that Defendant 5 Heller acted with deliberately indifference to Plaintiff’s medical needs. Plaintiff has not 6 explained how Defendant Heller’s treatment or lack of treatment caused his condition to 7 deteriorate, identified any other treatment Defendant Heller should have provided, or 8 presented evidence to support that Defendant Heller’s treatment decisions were medically 9 unacceptable under the circumstances. The record does not support that Defendant Heller 10 provided deliberately indifferent medical care to Plaintiff. 11 4. Timeliness of Dictated Reports 12 Regarding the timeliness of Defendant Heller’s submission of dictated reports, 13 Defendants assert in their Reply that after four of the six visits Defendant Heller had with 14 Plaintiff, he submitted dictated reports to Corizon within seven business days. (Doc. 155 15 at 3.) Following the August 7, 2017 visit, Defendant Heller provided the dictated report 16 after ten business days. (Id.) In addition, Defendant Heller provided a cover sheet and 17 Practitioner Consultation Report to Corizon on the day of each visit. (Id. at 4.) The 18 Practitioner Consultation Report and cover sheet contained diagnoses and 19 recommendations for follow-up appointments. (Id.) Thus, Defendants contend, after each 20 visit, Corizon was sent the necessary information to schedule follow-up appointments for 21 Plaintiff. (Id. at 4.) 22 Plaintiff has not presented any evidence to support that Defendant Heller’s delay in 23 submitting dictated reports, particularly where Heller sent diagnoses and recommendations 24 to Corizon immediately following his visits with Plaintiff, caused Plaintiff any injury. 25 5. Follow-Up Visits 26 According to Plaintiff’s medical records Defendant Heller recommended that he 27 return in March, noting that he “should be followed up more frequently.” Plaintiff has not 28 presented any evidence to support that Defendant Heller had any control over how 1 frequently Plaintiff was scheduled for visits with Heller. And Plaintiff saw Defendant 2 Heller on February 6, 2018, earlier than his original recommendation. The record does not 3 support that Defendant Heller was deliberately indifferent with respect to ensuring Plaintiff 4 had follow-up visits with Heller. 5 6. Plaintiff’s Report of Abuse/Punishment 6 In his Response, Plaintiff contends that he disclosed to Defendant Heller that he was 7 “being punished and forced to stand outside in the cold without clothing before his 8 scheduled appointments.” (Doc. 149 at 3.) Plaintiff asserts that “[i]nstead of addressing 9 the fact that Plaintiff was being punished,” Defendant Heller stated that he would schedule 10 Plaintiff for a follow up appointment in two months. (Id.) 11 In his report from the November 14, 2017 visit, Defendant Heller noted that he asked 12 Plaintiff to return in one month, but Plaintiff said that “it is too cold to come then because 13 they make him stand in the yard.” Defendant Heller noted that he told Plaintiff to return 14 in two months, and Plaintiff “was happy with that.” In his report from the December 18, 15 2017 visit, Defendant Heller noted that Plaintiff told him that he “did not want to come 16 now because they make him stand outside without his clothes on and he is cold.” 17 Defendant Heller noted that he recommended that Plaintiff return on March 10, 2018, 18 which was Plaintiff’s “choice of day.” 19 The available evidence demonstrates that Defendant Heller at least attempted to 20 make Corizon aware that Plaintiff had reported that he was being forced to wait in the cold 21 for his visits with Defendant Heller. Plaintiff has not stated what else Defendant Heller 22 could or should have done in response to Plaintiff’s reports, and he has not presented 23 evidence that he suffered any injury due to Defendant Heller’s action or inaction with 24 respect to Plaintiff’s reports. The record does not support that Defendant Heller was 25 deliberately indifferent to Plaintiff’s reports of “abuse.” 26 7. Policy or Custom 27 Defendants argue that Eye Doctors of Arizona provided no care to Plaintiff because 28 it was not incorporated until 2019. (Doc. 122 at 5.) Defendants contend that Defendant 1 Heller did business as Eye Doctors of Arizona in 2017 and 2018, but the corporation was 2 not formed until 2019. (Doc. 155 at 2.) Defendants further assert that Eye Doctors of 3 Arizona did not have a contract with Corizon to provide healthcare to prisoners in 2017 4 and 2018. (Id.) The Court need not decide this dispute of fact because even if Eye Doctors 5 of Arizona provided care to Plaintiff in 2017 and 2018, Plaintiff has not demonstrated that 6 Eye Doctors of Arizona had a policy or custom that resulted in a violation of his Eighth 7 Amendment rights. 8 Defendants contend that Plaintiff has not presented evidence that not providing 9 timely dictated medical reports to Corizon was a policy or custom. For the reasons 10 discussed above, the evidence does not support that Defendant Heller’s delay in submitting 11 dictated reports resulted in any harm to Plaintiff. Plaintiff has not presented any other 12 evidence regarding a specific policy or custom that caused a deprivation of his rights. 13 C. Conclusion 14 On this record, no reasonable jury could conclude that Defendant Heller was aware 15 of and disregarded a substantial risk of serious harm to Plaintiff. In addition, no reasonable 16 jury could conclude that Defendant Eye Doctors of Arizona had a policy or custom that 17 amounted to deliberate indifference to Plaintiff’s Eighth Amendment rights. Thus, there is 18 no genuine dispute of material fact regarding whether Defendants Eye Doctors of Arizona 19 and Heller violated Plaintiff’s Eighth Amendment rights, and the Court will grant summary 20 judgment in favor of Defendants Eye Doctors of Arizona and Heller. 21 IT IS ORDERED: 22 (1) The reference to the Magistrate Judge is withdrawn as to Defendants Eye 23 Doctors of Arizona PLLC and Heller’s Motion for Summary Judgment (Doc. 122) and 24 Defendants State of Arizona, Corizon, Johnson, Brinton, Kabongo, and Walton-Sparks’s 25 Motion for Summary Judgment (Doc. 131). 26 (2) Defendants Eye Doctors of Arizona PLLC and Heller’s Motion for Summary 27 Judgment (Doc. 122) is granted. 28 1 (3) Defendants State of Arizona, Corizon, Johnson, Brinton, Kabongo, and Walton-Sparks’s Motion for Summary Judgment (Doc. 131) is granted in part and denied in part, as follows: 4 (a) | The Motion is granted as to Plaintiffs claims in Counts One and Two 5 against Defendants State of Arizona, Johnson, Brinton, Kabongo, and 6 Walton-Sparks. 7 (b) |The Motion is denied without prejudice to refiling as to Defendant 8 Corizon if the stay in the bankruptcy proceeding is lifted. Plaintiff 9 shall either dismiss this case as to Corizon (without prejudice to 10 pursuing any claims in bankruptcy court) or move the bankruptcy 11 court to lift the automatic stay to allow this case to go forward in this 12 forum. Plaintiff's claims against Defendant Corizon will be 13 dismissed, without prejudice, without further notice on October 29, 14 2023, unless the Court is advised that the bankruptcy stay has been 15 lifted, or a request for a lifting of the bankruptcy stay has not been 16 ruled upon by the bankruptcy court. If the stay is lifted, Corizon must 17 refile its motion for summary judgment within 15 days of the stay 18 being lifted. 19 (4) | Counts One and Two are dismissed with prejudice. 20 (5) Defendants Eye Doctors of Arizona PLLC, Heller, State of Arizona, Johnson, Brinton, Kabongo, and Walton-Sparks are dismissed with prejudice. 22 Dated this 5th day of September, 2023. 23 24 A 25 James A. Teilborg 26 Senior United States District Judge 27 28