Flahive 151936 v. Corizon Health Services ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David William Flahive, No. CV 19-04834-PHX-DWL (MHB) 10 Plaintiff, 11 v. ORDER 12 Corizon Health Services, et al., 13 Defendants. 14 15 Plaintiff David William Flahive, who is currently confined in the Arizona State 16 Prison Complex-Lewis, brought this civil rights action pursuant to 42 U.S.C. § 1983. Two 17 of the defendants, Centurion of Arizona, L.L.C. (“Centurion”) and Angela White (“White”) 18 (collectively, “Defendants”), have now moved for summary judgment. (Doc. 39.) Plaintiff 19 was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 20 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 41), and he opposes the motion. (Doc. 42.) 21 For the following reasons, the motion will be denied without prejudice. 22 I. Background 23 A. The Complaint 24 In the complaint, which was filed on July 26, 2019, Plaintiff alleges that he suffers 25 from Hepatitis-C and raises various claims related to the alleged failure to provide 26 appropriate treatment for this condition. (Doc. 1.) 27 Specifically, in Count One, Plaintiff alleges that on December 20, 2018, he saw 28 Defendant Ende, a nurse practitioner, for a chronic care appointment but Ende refused to 1 submit his name to the Hepatitis-C committee and told Plaintiff that he did not qualify for 2 treatment. (Id. at 4.) Plaintiff alleges that, as a result, his Hepatitis-C progressed to stage 3 2 fibrosis and stage 2 liver inflammation, placing him at a greater risk of hepatocellular 4 carcinoma and death. (Id.) In Count Two, Plaintiff alleges that on May 13, 2019, 5 Defendant Johnson, a nurse practitioner, denied his request for direct-acting antiviral agent 6 medication (“DAA”) to treat and cure his Hepatitis-C and that Defendant Johnson 7 continued refusing to provide DAA after reviewing Plaintiff’s blood labs, which indicated 8 stage 2 fibrosis and liver inflammation. (Id. at 5.) In Count Three, Plaintiff alleges that 9 on July 4, 2019, he requested that Defendant White, a registered nurse, place him on the 10 provider’s line so he could obtain medication to cure his Hepatitis C, but White said that 11 he would not get treatment because “it is too expensive” and “there is a limited supply of 12 drugs” and that Johnson would not see Plaintiff for six months. (Id. at 6.) In Count Four, 13 Plaintiff alleges that Corizon has a policy, practice, or custom that resulted in the failure to 14 treat Plaintiff’s Hepatitis-C for over five years and that this absence of treatment caused 15 Plaintiff to develop stage 2 fibrosis and liver inflammation. (Id. at 7.) In Count Six, 16 Plaintiff alleges that since taking over for Corizon in May 2019, Centurion has also failed 17 to implement protocols to ensure that Plaintiff’s Hepatitis-C could be treated and that, 18 despite his many requests for treatment, Centurion has refused to treat his Hepatitis-C. (Id. 19 at 9.) 20 On screening under 28 U.S.C. § 1915A(a), the Court determined that “Plaintiff has 21 stated an Eighth Amendment claim and a state-law malpractice claim against Defendant 22 Ende in Count One, Defendant Johnson in Count Two, and Defendant White in Count 23 Three; Plaintiff has also stated Eighth Amendment claims against Defendant Corizon in 24 Count Four and Defendant Centurion in Count Six.” (Doc. 8 at 7.)1 25 … 26 … 27 28 1 The Court also dismissed Count Five, which asserted a deliberate-indifference claim against an additional medical provider. (Doc. 8 at 5-7.) 1 B. The Preliminary Injunction Request 2 At the same time he filed his complaint, Plaintiff filed a motion seeking a 3 preliminary injunction to “order ADOC and herein listed defendants” to treat his Hepatitis- 4 C with DAAs. (Doc. 4 at 7.) 5 On October 9, 2019, Defendants filed an opposition. (Doc. 18.) In a nutshell, 6 Defendants argued that Plaintiff had been seen by medical staff every six months to 7 monitor his Hepatitis-C and that Corizon had not administered DAAs because Plaintiff did 8 not satisfy Corizon’s “criteria for Hepatitis C treatment.” (Id. at 2.) The opposition 9 identified four different Corizon criteria that counseled against the administration of 10 DAAs, including (1) Plaintiff’s APRI scores had “consistently been calculated 0.3-0.8 and 11 never over 1.0, which is stable”; (2) Plaintiff had tested negative for Hepatitis-A and 12 Hepatitis-B and had been vaccinated to protect against those conditions; (3) Plaintiff was 13 not suffering from cirrhosis of the liver; and (4) Plaintiff had admitted to substance abuse 14 and tested positive for amphetamines. (Id. at 2-3.) The opposition further stated that, 15 although Centurion does not follow the exact same criteria as Corizon (for example, 16 Centurion does not rely on APRI scoring), Plaintiff also failed to qualify for DAA 17 administration under Centurion’s criteria, which are “very similar to the triaging of patients 18 for treatment in the community and match[] the most recent HCV Guidelines as published 19 in May 2018 by the AASLD (American Association for the Study of Liver Diseases), and 20 by ISDA (Infectious Diseases Society of America).” (Id. at 3.) In support of these 21 assertions, Defendants submitted (1) a declaration from Dr. Wendy Orm, Centurion’s 22 statewide medical director (id. at 13-15), and (2) a handful of records from Plaintiff’s 23 medical visits (id. at 16-25). 24 On October 17, 2019, Plaintiff filed a reply. (Doc. 20.) In it, Plaintiff clarified that 25 he “is not disputing that the defendant[s] are[] providing treatment” but asserted that “the 26 treatment is inadequate and is nothing more than ‘active surveillance’ [which] is equal to 27 no treatment at all.” (Id. at 2.) On the merits, Plaintiff focused primarily on whether his 28 1 Hepatitis-C qualifies as a “serious” medical condition for Eighth Amendment purposes. 2 (Id. at 3-5.) 3 On December 10, 2019, the Court issued an order denying Plaintiff’s motion for a 4 preliminary injunction. (Doc. 33.) First, the Court concluded that Plaintiff hadn’t 5 established a likelihood of success on the merits of his Eighth Amendment claims. (Id. at 6 7-8.) Second, and alternatively, the Court concluded that Plaintiff hadn’t shown a 7 likelihood of irreparable harm in the absence of a preliminary injunction because “[t]here 8 is no indication that Plaintiff’s hepatitis C is likely to progress to the point that he will 9 suffer irreparable harm before the merits of his claims can be addressed in the course of 10 this litigation.” (Id. at 8.) 11 II. Summary Judgment Standard 12 A court must grant summary judgment “if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 14 Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 15 movant bears the initial responsibility of presenting the basis for its motion and identifying 16 those portions of the record, together with affidavits, if any, that it believes demonstrate 17 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 18 If the movant fails to carry its initial burden of production, the nonmovant need not 19 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 20 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 21 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 22 contention is material, i.e., a fact that might affect the outcome of the suit under the 23 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 24 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248, 250 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 26 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, 27 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must 28 “come forward with specific facts showing that there is a genuine issue for trial.” 1 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 2 citation omitted); see also Fed. R. Civ. P. 56(c)(1). 3 At summary judgment, the court’s function is not to weigh the evidence and 4 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 5 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 6 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 7 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 8 III. Discussion 9 A. Preliminary Matters 10 As noted, the Court held in the screening order that Plaintiff had stated two different 11 claims (a § 1983 claim for deliberate indifference and a state-law malpractice claim) 12 against White in Count Three and that Plaintiff had stated a single claim (a § 1983 claim 13 for deliberate indifference) against Centurion in Count Six. (Doc. 8 at 7.) 14 In the introductory paragraph of their motion, Defendants state that they are moving 15 “for summary judgment on all of Plaintiff’s claims against them.” (Doc. 39 at 1.) 16 However, in the body of the motion, Defendants only address the elements of the § 1983 17 claims. (Id. at 4-8.) No mention is made of the medical malpractice claim against White 18 in Count Three. Although Defendants attempt to belatedly address the medical malpractice 19 claim in their reply (Doc. 45 at 5-6), “the district court need not consider arguments raised 20 for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 21 Thus, Defendants’ motion will be denied, without prejudice, to the extent it seeks summary 22 judgment on the medical malpractice claim against White in Count Three. 23 The Court further notes that, as to the § 1983 claims against White and Centurion, 24 Defendants did not approach the summary judgment briefing process with the necessary 25 level of detail. The thrust of Defendants’ position is that, because the Court previously 26 denied Plaintiff’s request for a preliminary injunction, this means that Defendants must be 27 entitled to summary judgment, too. (See, e.g., Doc. 39 at 2 [“Because this Court has now 28 been provided declaratory evidence and medical records that confirm Centurion medical 1 providers have determined that Plaintiff does not meet the criteria for the treatment he is 2 requesting, and . . . this Court has already decided that Plaintiff is not likely to succeed on 3 the merits and is not suffering irreparable harm, . . . summary judgment is also warranted 4 on Plaintiff’s claims against these Defendants . . . .”]; id. at 6 [“[T]his Court has already 5 determined . . . that Plaintiff simply disagrees with his medical providers about whether he 6 should be receiving treatment with direct acting anti-viral medications for his Hepatitis C 7 . . . .”].) Thus, Defendants submitted very little evidence in support of their motion—they 8 simply incorporated by reference the Orm declaration and other documents that were 9 submitted in opposition to the preliminary injunction request. (Doc. 40.) 10 This approach is improper. A preliminary injunction is an extraordinary remedy 11 that may be granted only when the movant—here, Plaintiff—makes several discrete 12 showings, including a showing that success on the merits is not just possible, but likely (or, 13 at a minimum, that there are substantial questions concerning the merits). In contrast, a 14 party seeking summary judgment—here, Defendants—has the burden of demonstrating the 15 absence of any genuine issues of material fact. A plaintiff’s inability to satisfy the rigorous 16 test for preliminary injunctive relief isn’t tantamount to a finding that the plaintiff’s claims 17 cannot survive summary judgment. 18 In any event, because Defendants have sought a determination under Rule 56 as to 19 whether they are entitled to summary judgment on the § 1983 claims asserted against them 20 in Counts Three and Six, the Court will consider the evidence and arguments they have 21 submitted. 22 B. 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 needs 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 Corr., 220 F. Supp. 2d 1098, 1105 22 (N.D. Cal. 2002). See also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) 23 (mere claims of “indifference,” “negligence,” or “medical malpractice” do not support a 24 claim under § 1983). “A difference of opinion does not amount to deliberate indifference 25 to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 26 A mere delay in medical care, without more, is insufficient to state a claim against prison 27 officials for deliberate indifference. Shapley v. Nevada Bd. of State Prison Comm’rs, 766 28 1 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise 2 to a level of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 3 Finally, even if deliberate indifference is shown, to support an Eighth Amendment 4 claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 5 1096; 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 C. Analysis 8 Defendants contend they are entitled to summary judgment because (1) “Plaintiff 9 has failed to show that these Defendants’ course of treatment was medically unacceptable 10 or that they chose that course of treatment in a conscious disregard of an excessive risk to 11 Plaintiff” (Doc. 39 at 6-7) and (2) “Plaintiff has failed to provide evidence of any damage 12 . . . [or] any injury [that] is related to any action or inaction of Defendants” (id. at 7-8). 13 As for the first issue, Defendants’ position hinges on their assertion that, when 14 choosing whether to administer DAAs to prisoners with Hepatitis-C, they adhere to 15 guidelines that “match[] the most recent HCV Guidelines as published in May 2018 by the 16 AASLD (American Association for the Study of Liver Diseases), and by ISDA (Infectious 17 Diseases Society of America).” (Doc. 40 ¶ 18; Doc. 18 at 14 ¶ 19. See also Doc. 39 at 8 18 [“Plaintiff has received continuous and appropriate assessment and treatment . . . based on 19 . . . community standards”].) However, Defendants did not actually submit a copy of their 20 guidelines or the AASLD/ISDA guidelines—they are not attached to Orm’s declaration 21 and were not submitted in support of Defendants’ summary judgment motion. Moreover, 22 Plaintiff disputes the factual accuracy of this assertion in his separate statement, claiming 23 that the “AASLD guidelines . . . state that all infected Hep-C patients should be treated.” 24 (Doc. 43 at 3 ¶ 12.) On this record, Defendants are not entitled to summary judgment.2 25 2 Moreover, several recent decisions appear to support Plaintiff’s, rather than Defendants’, characterization of the AASLD/ISDA guidelines. See, e.g., Atkins v. Parker, 26 412 F. Supp. 3d 761, 782 (M.D. Tenn. 2019) (“Plaintiffs[] rely upon the AASLD/IDSA Guideline . . . that favor administering DAAs to inmates with chronic HCV as soon as 27 possible. Plaintiffs then reason that [the prison’s] HCV treatment policies fall short of the prevailing standard of care because they do not guarantee immediate, universal treatment 28 of all HCV inmates with DAAs.”); Buffkin v. Hooks, 2019 WL 1282785, *7 (M.D.N.C. 2019) (“[T]he AASLD/IDSA Guidance itself . . . reflects, at least in part, the laudable 1 As for the second issue, the Court is again hamstrung by an undeveloped record. 2 Plaintiff’s complaint, which was executed under penalty of perjury (and which therefore 3 may be considered for summary judgment purposes), alleges that the lack of adequate 4 treatment has resulted in a tangible worsening of Plaintiff’s condition: “The . . . refusal to 5 place me on medication to cure my [Hepatitis-C] has caused fibrosis stage 2 and stage 2 6 inflammation of my liver.” (Doc. 1 at 5.) In response, Defendants offer the Orm 7 declaration, which asserts in conclusory fashion that these are “minimal” degrees of 8 fibrosis and inflammation that don’t qualify for DAAs under Centurion’s treatment criteria. 9 (Doc. 40 ¶¶ 13, 16-17.) But this assertion doesn’t address Plaintiff’s point—that his 10 condition has worsened due to the lack of care—and the allusion to Centurion’s criteria is 11 unpersuasive in light of the unresolved questions concerning whether those criteria actually 12 track the AASLD/IDSA guidelines. 13 In short, Defendants have not met their burden of showing they are entitled to 14 judgment as a matter of law. Nonetheless, because Defendants may be able to present 15 additional facts and arguments supporting their position, they will be granted leave to file 16 a second summary judgment motion. Hoffman v. Tonnemacher, 593 F.3d 908, 911-12 (9th 17 Cir. 2010) (district courts have discretion to permit successive motions for summary 18 judgment). 19 IT IS ORDERED: 20 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 21 motion for summary judgment (Doc. 39). 22 (2) Defendants’ motion for summary judgment (Doc. 39) is denied without 23 prejudice. 24 25 medical goal of eradicating HCV in society as a whole . . . [and] state that ‘HCV DAA 26 therapy for chronic HCV is now logistically feasible within the prison setting and would aid the HCV elimination effort.’ While these goals are commendable and desirable, they 27 are also aspirational objectives and thus do not provide a standard for evaluating deliberate indifference in the prison system.”). This underscores why it would be inappropriate to 28 grant summary judgment to Defendants based on their characterization of guidelines they have not actually submitted for the Court to review. 1 (3) Defendants may file another dispositive motion by the deadline for filing dispositive motions outlined in the Scheduling Order. (Doc. 30.) 3 Dated this 8th day of June, 2020. 4 5 im a 6 f t _ Dominic W. Lanza 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28