Derello 37292 v. Sanchez ( 2020 )

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Wayne Derello, Jr., No. CV 18-03575-PHX-MTL (JFM) 10 Plaintiff, 11 v. ORDER 12 Sanchez, et al., 13 Defendants. 14 15 Plaintiff Douglas Wayne Derello, Jr., who is currently confined in the Arizona State 16 Prison Complex-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. 17 Defendant Igwe moves for summary judgment1 and Plaintiff filed a Response and Cross- 18 Motion for Summary Judgment. (Docs. 110, 154.) Also pending is Plaintiff’s Motion to 19 Extend Computer Use. (Doc. 157.) 20 I. Background 21 In his Complaint, Plaintiff relevantly alleged that on January 5, 2018, he saw 22 Defendant Igwe regarding gout that caused swelling in his foot and excruciating pain. 23 (Doc. 7 at 6.) Plaintiff alleged that Defendant Igwe examined him and prescribed a shot 24 for pain and inflammation, but discontinued his prescription for Indomethacin, told him 25 she did not believe he had gout, told him that he had to go on a medication that caused him 26 27 1 Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 113), and he opposes the 28 Motion. (Doc. 153.) The Court granted Plaintiff multiple extensions of time to file his Response to the Motion for Summary Judgment. 1 bad side effects or nothing, and ordered him out of her office when he tried to talk to her 2 about prison medical care. (Id. at 6-7.) Plaintiff alleged that after that, he saw Defendant 3 Igwe a few times, but she refused to provide treatment and even after her superiors ordered 4 her to provide Plaintiff treatment, she delayed treatment for a month and a half. (Id. at 7.) 5 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 6 First Amendment retaliation claims against Defendants Harris and Sanchez, a failure to 7 supervise claim against Defendant Doe, and an Eighth Amendment medical care claim 8 against Defendant Igwe. (Id. at 8-9.) The Court dismissed the remaining claims and 9 Defendants. (Id. at 10.) Thereafter, Defendant Doe was dismissed because Plaintiff did 10 not file a timely notice of substitution and Defendant Sanchez was dismissed for failure to 11 timely effect service of process. (Docs. 45 and 58.) 12 II. Plaintiff’s Motion to Extend Computer Use 13 Plaintiff requests an Order from the Court directing the ADC to allow him to 14 purchase his own laptop. (Doc. 157.) In Response, Defendants explain that Plaintiff has a 15 typewriter that can be easily fixed, but he refuses to purchase the part to fix it. (Doc. 159.) 16 In Reply, Plaintiff does not deny that he needs to purchase a part to fix his typewriter, but 17 claims he does not wish to do so in case his typewriter will not work for some other reason. 18 (Doc. 166.) 19 Plaintiff has failed to show that he will suffer irreparable harm in the absence of an 20 order allowing him to purchase a computer. See Winter v. Natural Res. Def. Council, Inc., 21 555 U.S. 7, 20 (2008) (citation omitted) (A plaintiff seeking a preliminary injunction must 22 show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm 23 without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is 24 in the public interest). The evidence before the Court shows that Plaintiff can purchase a 25 part to fix his typewriter, which will allow him to submit typed, legible documents to the 26 Court. Plaintiff’s speculation that the part might not fix his typewriter is insufficient to 27 establish that he will suffer irreparable harm in the absence of an injunction. Accordingly, 28 Plaintiff’s Motion to Extend Computer Use will be denied. 1 III. Summary Judgment Standard 2 A court must grant summary judgment “if the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 4 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 5 movant bears the initial responsibility of presenting the basis for its motion and identifying 6 those portions of the record, together with affidavits, if any, that it believes demonstrate 7 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 8 If the movant fails to carry its initial burden of production, the nonmovant need not 9 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 10 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 11 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 12 contention is material, i.e., a fact that might affect the outcome of the suit under the 13 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 14 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 16 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 17 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 18 it must “come forward with specific facts showing that there is a genuine issue for trial.” 19 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 20 citation omitted); see Fed. R. Civ. P. 56(c)(1). 21 At summary judgment, the judge’s function is not to weigh the evidence and 22 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 23 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 24 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 25 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 26 IV. Facts 27 On January 19, 2018, Plaintiff was seen by Registered Nurse Owiti, who noted that 28 Plaintiff complained of swollen painful joints in both hands, knees, hips, and shoulders, 1 possibly from gout. (Doc. 155 at 9.) Owiti noted that Plaintiff stated he was previously 2 on Indomethacin for joint pain with good control, but that he was recently changed to 3 Ibuprofen, which did not control his pain. (Id.) On January 23, 2018, Plaintiff was seen 4 by Nurse Practitioner Igwe for follow-up care; Plaintiff complained of persistent swelling 5 and painful joints, possibly from gout. (Doc. 111 ¶ 1; Doc. 155 ¶ 2.) Igwe examined 6 Plaintiff and ordered lab tests to determine whether Plaintiff had gout, classified his 7 symptoms as chronic pain, ordered Ibuprofen for one month, requested offsite medical 8 records for joint pain and swelling, and put in a special needs order for Plaintiff to soak in 9 warm water twice daily for thirty days. (Doc. 111 ¶ 1; Doc. 155 ¶ 2.) On January 29, 2018, 10 Plaintiff saw NP Igwe and complained that parts of his wheelchair were falling off; Igwe 11 noted that parts of the wheelchair were missing and ordered a bariatric wheelchair. (Doc. 12 111 ¶ 1.)2 13 On February 5, 2018, Plaintiff saw NP Igwe for an unscheduled sick call and 14 complained of foot pain and swelling, describing his pain as intermittent 8/10. (Doc. 111 15 ¶ 3; Doc. 155 ¶ 3.) Plaintiff stated that Ibuprofen did not relieve his pain and that 16 Indomethacin relieved the pain. (Doc. 111 ¶ 3; Doc. 155 ¶ 3.) Igwe assessed Plaintiff with 17 a gout flare and prescribed Colchicine for gout pain. (Doc. 111 ¶ 3; Doc. 155 ¶ 3.) Igwe 18 instructed Plaintiff to elevate his lower extremities. (Doc. 111 ¶ 3; Doc. 155 ¶ 3.) Plaintiff 19 asserts that “NP Igwe [sic] lack of training and being irate with pltf [sic] she left pltf [sic] 20 in pain despite her supervisor agreed with plth [sic].” (Doc. 155 ¶ 3.)3 On February 9, 21 2018, Igwe reordered Colchicine for Plaintiff’s gout pain. (Doc. 111 ¶ 4.) Plaintiff asserts 22 that Igwe had to order medications “over and over again due to her logging it the wrong 23 way.” (Doc. 153 at 2.) 24 25 2 In his Controverting Statement of Facts, Plaintiff did not respond to certain facts 26 included in Defendant’s Statement of Facts. (See generally Doc. 155.) 27 3 Plaintiff cites to “pltf Exhibit 2” to support this statement, but the Court cannot 28 find anything in Plaintiff’s Exhibit 2 that suggests that Igwe’s supervisor instructed her that her care of Plaintiff was lacking in some way. (See Doc. 155 at 4-8.) 1 On April 3, 2018, Plaintiff saw NP Igwe, who noted that Plaintiff qualified for 2 temporary ADA status due to gouty exacerbations, and Igwe put in a special needs request 3 for Plaintiff to be given an ADA shower for one month. (Doc. 111 ¶ 5; Doc. 155 ¶ 4.) On 4 May 15, 2018, Plaintiff saw NP Igwe and denied pain or discomfort; Plaintiff requested 5 the results of his lab tests, but Igwe told him the results were not available and she would 6 review the results with him when they became available. (Doc. 111 ¶ 6; Doc. 155 ¶ 5.) 7 Plaintiff disputes that he told Igwe he was not in pain. (Doc. 153 at 2.) On May 23, 2018, 8 Plaintiff saw Igwe and they reviewed the results of Plaintiff’s labs; Igwe noted that 9 Plaintiff’s gout was controlled and prescribed Allopurinol, which is used to treat gout, at 10 100 mg daily for seven days and then increased to 200 mg daily for 120 days. (Doc. 111 11 ¶ 7.) On July 10, 2018, Plaintiff was seen by Igwe for the final time and complained of 12 left hand swelling; Igwe put in a special needs order for medical ice for the swelling. (Doc. 13 111 ¶ 8; Doc. 155 ¶ 6.) On October 9, 2018, Igwe reordered Colchicine for Plaintiff’s gout 14 pain. (Doc. 111 ¶ 9; Doc. 155 ¶ 7.) Plaintiff asserts that Igwe had to order Colchicine in 15 October because she “did not place the order correctly.” (Doc. 153 at 2.) 16 V. Discussion 17 Defendant argues that she is entitled to summary judgment because there is no 18 evidence that she was deliberately indifferent to Plaintiff’s serious medical needs; rather, 19 she asserts that the record shows that she was consistently responsive to Plaintiff’s 20 complaints of pain from gout. (Doc. 110 at 6.) Defendant asserts that her failure to 21 prescribe Indomethacin to Plaintiff is a disagreement regarding Plaintiff’s medication that 22 does not amount to deliberate indifference and Plaintiff’s claim that she denied that 23 Plaintiff had gout is belied by the medical records that show that she ordered lab tests to 24 determine whether Plaintiff had gout. (Id.) 25 A. Legal Standard 26 Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 27 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 28 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two 1 prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 2 First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 3 omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could 4 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 5 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds 6 by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 7 citation omitted). Examples of a serious medical need include “[t]he existence of an injury 8 that a reasonable doctor or patient would find important and worthy of comment or 9 treatment; the presence of a medical condition that significantly affects an individual’s 10 daily activities; or the existence of chronic and substantial pain.” McGuckin, 974 F.2d at 11 1059-60. 12 Second, a prisoner must show that the defendant’s response to that need was 13 deliberately indifferent. Jett, 439 F.3d at 1096. An official acts with deliberate indifference 14 if he “knows of and disregards an excessive risk to inmate health or safety; to satisfy the 15 knowledge component, the official must both be aware of facts from which the inference 16 could be drawn that a substantial risk of serious harm exists, and he must also draw the 17 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 18 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 19 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 20 Cir. 2002) (internal citations and quotation marks omitted), or when they fail to respond to 21 a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. Deliberate indifference 22 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. 23 Farmer, 511 U.S. at 835. “Neither negligence nor gross negligence will constitute 24 deliberate indifference.” Clement v. California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105 25 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) 26 (mere claims of “indifference,” “negligence,” or “medical malpractice” do not support a 27 claim under § 1983). “A difference of opinion does not amount to deliberate indifference 28 to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 1 A mere delay in medical care, without more, is insufficient to state a claim against prison 2 officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 3 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must 4 rise to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 5 Finally, even if deliberate indifference is shown, to support an Eighth Amendment 6 claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 7 1096; see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing 8 medical treatment does not constitute Eighth Amendment violation unless delay was 9 harmful). 10 B. Analysis 11 With regard to Plaintiff’s claim that Igwe was deliberately indifferent to his serious 12 medical needs because she did not prescribe Indomethacin, it is unclear which provider 13 discontinued Plaintiff’s Indomethacin prescription, but the record shows this occurred 14 before Plaintiff first saw Defendant Igwe. Plaintiff produces evidence that he was taken 15 off Colchicine in May of 2017 due to it “feel[ing] like it was causing nausea and blood in 16 stools” (Doc. 155 at 13), and Plaintiff states that he “repeatedly told Igwe that he could not 17 take Colchicine [because] he suffered side effects,” but he does not include any detailed 18 information regarding these encounters such as when they occurred. There is no evidence 19 that even if Igwe was aware that Plaintiff had previously tried Colchicine and had side 20 effects that it was deliberate indifference for Igwe to try Colchicine a second time a year 21 later. There is nothing in Plaintiff’s medical records after Igwe prescribed Colchicine 22 suggesting that he again complained of side effects or that he suffered side effects from 23 that medication. 24 To the extent Plaintiff complains that Igwe was deliberately indifferent to his serious 25 medical needs by improperly entering prescriptions into the computer, Plaintiff has not 26 produced any evidence showing that this happened or that if it did happen, that Igwe did it 27 deliberately, or that it was the result of anything other than negligence. 28 The record before the Court shows that Igwe consistently responded to Plaintiff’s 1 | complaints regarding his gout, but that Plaintiff did not always agree with the course of 2 treatment. But Plaintiff's disagreement with the chosen course of treatment does not 3 | demonstrate that Igwe was deliberately indifferent to his gout. There is no evidence that Igwe was deliberately indifferent to Plaintiffs complaints regardinghis gout. Accordingly, 5 | Igwe’s Motion for Summary Judgment will be granted and Plaintiff's Cross-Motion for 6 | Summary Judgment will be denied as moot. IT IS ORDERED: 8 (1) The reference to the Magistrate Judge is withdrawn as to Defendant Igwe’s 9] Motion for Summary Judgment (Doc. 110), Plaintiff?s Cross-Motion for Summary 10 | Judgment (Doc. 154), and Plaintiff’s Motion to Extend Computer Use (Doc. 157). 11 (2) Plaintiff’s Motion to Extend Computer Use (Doc. 157) is denied. 12 (3) Defendant Igwe’s Motion for Summary Judgment (Doc. 110) is granted, 13 | and Defendant Igwe is dismissed from this action with prejudice. 14 (4) Plaintiff’s Cross-Motion for Summary Judgment (Doc. 154) is denied as 15 | moot. 16 (5) The remaining claim in this action 1s Plaintiff’s First Amendment retaliation 17 | claim against Defendant Harris. 18 Dated this Ist day of April, 2020. 19 Michael T. Liburdi 22 United States District Judge 23 24 25 26 27 28