Gutierrez-Valencia #091102 v. Shinn et al

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JDN
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Luis Gutierrez-Valencia,
Plaintiff,
v.
David Shinn, et al.,
Defendants.
No. CV-24-00038-PHX-JAT (DMF)
ORDER
Plaintiff, who is currently confined in the Arizona State Prison Complex (ASPC)-
Tucson, Cimarron Unit, brought this pro se civil rights action under 42 U.S.C. § 1983
against former Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR)
Director David Shinn; current ADCRR Director Ryan Thornell; ADCRR Appeals
Officer/Director Julie Bowers; Assistant Director for Prison Operations Sean Malone;
former contracted healthcare provider Centurion; current contracted healthcare provider
NaphCare; and Nurse Practitioner (NP) Siji Thomas. (Doc. 1.) Before the Court are a
Motion for Summary Judgment filed by Shinn, Thornell, Bowers, and Malone (State
Defendants) (Doc. 58) and a Motion for Summary Judgment filed by Centurion, NaphCare,
and Thomas (Medical Defendants) (Doc. 89). The Court will grant in part and deny in part
State Defendants’ Motion and deny Medical Defendants’ Motion.
I. Background
In his Complaint, Plaintiff alleged that he was denied adequate and timely medical
care for severe stomach pain and a hernia condition, that his denial of care was pursuant to
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a custom or practice to deny or delay specialist care and surgery, and that drinking water
at the prison was toxic and contaminated, which contributed to his stomach issues. (Doc.
1.)
On screening, the Court determined Plaintiff sufficiently stated the following
claims: (1) an Eighth Amendment medical care claim against Defendants Centurion and
NaphCare regarding alleged deliberately indifferent policies concerning hernias, specialist
consultations, and surgery (Count One); (2) an Eighth Amendment medical care claim
against Defendant Thornell in his official capacity (Count One); (3) Eighth Amendment
medical care claims against Defendants Shinn and Thornell in their individual capacities
(Count One); (4) an Eighth Amendment medical care claim against Defendant Thomas
(Count Three); and Eighth Amendment conditions-of-confinement claims against
Defendants Bowers and Malone (Count Two). (Doc. 9.)
State Defendants move for summary judgment on the grounds that Plaintiff did not
exhaust administrative remedies as required under 42 U.S.C. § 1997e(a) for his medical
care claims against Defendants Shinn and Thornell in Count One, State Defendants were
not deliberately indifferent to Plaintiff’s Eighth Amendment rights, and State Defendants
are entitled to qualified immunity. (Doc. 58.)1
Medical Defendants move for summary judgment on the grounds that Plaintiff’s
treatment was not deliberately indifferent, Plaintiff cannot show that a policy or custom
caused a constitutional violation, punitive damages are not warranted, and there is no basis
for injunctive relief. (Doc. 89.)2
II. Summary Judgment Standard
A court must grant summary judgment “if the movant shows that there is no genuine
1 Upon the filing of State Defendants’ Motion for Summary Judgment, the Court
issued an Order with the Notice required under Rand v. Rowland, 154 F.3d 952, 960 (9th
Cir. 1998) (en banc), which informed Plaintiff of the requirements under Federal Rule of
Civil Procedure 56 and set a briefing schedule. (Doc. 60.)
2 Upon the filing of Centurion, NaphCare, and Thomas’ Motion for Summary
Judgment, the Court issued a second Rand Order. (Doc. 90.)
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The
movant bears the initial responsibility of presenting the basis for its motion and identifying
those portions of the record, together with affidavits, if any, that it believes demonstrate
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not
produce anything. Nissan Fire & Marine v. Fritz Co., Inc., 210 F.3d at 1099, 1102–03 (9th
Cir. 2000). But if the movant meets its initial responsibility, the burden then shifts to the
nonmovant to demonstrate the existence of a factual dispute and that the fact in contention
is material, i.e., a fact that might affect the outcome of the suit under the governing law,
and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return
a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250
(1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The
nonmovant need not establish a material issue of fact conclusively in its favor, First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968); however, it must “come
forward with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed. R. Civ. P. 56(c)(1).
At summary judgment, the judge’s function is not to weigh the evidence and
determine the truth but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. In its analysis, the court does not make credibility determinations; it must
believe the nonmovant’s evidence and draw all inferences in the nonmovant’s favor. Id. at
255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The Court need
consider only the cited materials, but it may consider any other materials in the record.
Fed. R. Civ. P. 56(c)(3). Further, where the nonmovant is pro se, the court must consider
as evidence in opposition to summary judgment all of the pro se litigant’s contentions that
are based on personal knowledge and that are set forth in verified pleadings and motions.
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Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see Schroeder v. McDonald, 55 F.3d
454, 460 (9th Cir. 1995).
III. Procedural Issues
In their Reply, Medical Defendants argue that Plaintiff’s Controverting Statement
of Facts fails to comply with Local Rule of Civil Procedure 56.1(b) and the Court’s Rand
Order because his Controverting Statement of Facts (1) does not, in many instances, cite
to evidentiary support for his factual assertions, (2) merely sets forth conclusory
statements, and (3) includes citations to inadmissible hearsay. (Doc. 116 at 1–2.)
Under Local Rule of Civil Procedure 56.1(b), a party opposing a summary judgment
motion must file a separate statement of facts that sets forth, for each of the movant’s
statements of facts, a correspondingly numbered paragraph indicating whether the
nonmovant disputes the statement in each paragraph and a reference to the admissible
evidence in the record that supports that nonmovant’s position if a statement is disputed.
In his Controverting Statement of Facts, Plaintiff indicates whether he agrees or
disputes each one of Medical Defendants’ asserted facts, and he cites to parts of the record
to support many of his disputes. (See Doc. 108.) The Court agrees that some of Plaintiff’s
Controverting Statement of Facts is difficult to follow; however, a number of his asserted
facts are supported by the record. Moreover, because Plaintiff’s Controverting Statement
of Facts is verified, the Court considers Plaintiff’s assertions within his Statement of Facts
that are based on personal knowledge, whether or not Plaintiff cited to a part of the record.
(See Doc. 108 at 21–22.) Fed. R. Civ. P. 56(c)(4); Jones, 393 F.3d at 923; see also S. Cal.
Housing Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1070
(C.D. Cal. 2005) (a declarant has personal knowledge of his or her own symptoms).
Construed liberally, Plaintiff more than sufficiently sets out disputes with Medical
Defendants’ factual assertions, and he supports his disputes with citations to the record or
statements based on personal knowledge. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th
Cir. 2010) (directing district courts to “construe liberally motion papers and pleadings filed
by pro se inmates and [ ] avoid applying summary judgment rules strictly”).
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Medical Defendants also argue that Plaintiff’s Response Memorandum does not
comply with the Rules of Procedure or the Court’s Rand Order because he often fails to
cite to support for his arguments, he relies on inadmissible and mostly irrelevant hearsay,
and he relies on his own self-serving and conclusory declarations. (Doc. 116 at 2.)
That a declaration “is self-serving bears on its credibility, not on its cognizability
for purposes of establishing a genuine issue of material fact.” United States v. Shumway,
199 F.3d 1093, 1104 (9th Cir. 1999); see Nigro v. Sears, Roebuck & Co., 784 F.3d 495,
497 (9th Cir. 2015) (the district court cannot “disregard a piece of evidence at the summary
judgment stage solely based on its self-serving nature[,]” even if it is uncorroborated).
Also, to survive summary judgment, the nonmovant “does not necessarily have to produce
evidence in a form that would be admissible at trial.” Block v. City of Los Angeles, 253
F.3d 410, 418–19 (9th Cir. 2001); see Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th
Cir. 2003).
Notably, Medical Defendants do not specifically object to any statement within
Plaintiff’s Memorandum or declaration, or to any specific paragraph within Plaintiff’s
Controverting Statement of Facts. (See Doc. 116 at 2.) The Court therefore has nothing
specific to rule on regarding admissibility. Further, in opposition to summary judgment,
the Court may consider evidence that, while inadmissible, may be produced in a form that
would be admissible at trial. See Block, 253 F.3d at 418–19; Fraser, 342 F.3d at 1036–37;
Walters v. Odyssey Healthcare Mgmt. Long Term Disability Plan, No. CV-11-00150-
PHX-JAT, 2014 WL 4371284, at *3 (D. Ariz. Sep. 4, 2014) “[m]aterial in a form not
admissible in evidence may be used to avoid, but not to obtain summary judgment”)
(internal quotation omitted).
To the extent Medical Defendants argue that Plaintiff’s Response Memorandum and
Controverting Statement of Facts should not be considered due to a failure to comply with
the Rules of Procedure or the Court’s Rand Order, the arguments fail.
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IV. Relevant Facts3
On July 19, 2019, Plaintiff underwent double hernia surgery. (Doc. 108 ¶ 2.) At
that time, Centurion was the contracted healthcare provider. (Doc. 87 ¶ 1.)4
On January 31, 2020, Plaintiff submitted a Health Needs Request (HNR) asking to
see a provider for pain issues; he reported sharp stomach pains and that his “hernia’s
burning.” (Doc. 108-5 at 38.)
On March 28, 2020, Plaintiff submitted an Inmate Grievance in which he wrote that,
following his July 19, 2019 double hernia surgery, he did not receive any follow up, and
he suffered sharp, stabbing pain, cramps, and numbness in both hernia areas. (Doc. 101-2
at 39.) Plaintiff requested that his medical needs be addressed. (Id. at 38–39.)
On July 10, 2020, Plaintiff submitted an HNR asking for help because both hernias
were still causing pain, he had continuous sharp stomach pain by both hernia areas, and he
had groin numbness. (Doc. 101-6 at 25.) The HNR response stating “PL,” referring to the
provider line. (Id.)
On September 7, 2020, Plaintiff submitted an HNR stating that he was suffering
painful urination and pain in his hernia areas. (Doc. 108-3 at 11; Doc. 108-5 at 40; Doc.
101-6 at 26.) Plaintiff also wrote that he had been submitting HNRs for a while about his
chronic conditions without any responses. (Doc. 108-5 at 40.)
On September 8, 2020, Plaintiff submitted another HNR stating that for two days
he had been having urination difficulty and that, after he urinated, his bladder still felt full
and it felt painful in his hernia areas. (Doc. 101-4 at 40.) Plaintiff was seen by Nurse
3 Because both parties infuse argument and conclusory statements into their
respective Statements of Facts when setting out their interpretations of the medical records,
the Court has relied directly on the medical record evidence as much as possible.
4 At the relevant time, Plaintiff was diagnosed with multiple chronic conditions,
including but not limited to chronic pain syndrome and low back pain resulting from prior
car accidents and a gunshot injury, where he was shot in the chest and the bullet exited
through his spinal cord. (See Doc. 87-2 at 25; Doc. 87-4 at 2.) Plaintiff had regular chronic
care visits for his chronic conditions, but the Court references only those medical records
that relate to Plaintiff’s hernia condition or involve a named Defendant.
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Clarissa Ortiz that same day, and she noted, “provider contacted, provider will see.” (Id.
at 41.)
On October 28, 2020, Plaintiff submitted an HNR complaining about hernia pain.
(Doc. 108-3 at 9.) Plaintiff was seen that same day by Nurse Sarah Cartwright via
telemedicine. (Id.) Plaintiff was referred for an ultrasound of the stomach and to see a
primary care provider. (Id. at 10.)
On November 27, 2020, Plaintiff submitted an HNR stating that he wrote to the
Facility Health Administrator and submitted several HNRs for multiple chronic conditions,
including hernia pain and that he was experiencing sharp pains. (Doc. 101-6 at 34.)
On January 10, 2021, Plaintiff submitted an emergency HNR stating that he had
sharp stomach and groin pains from where his hernia surgery was done. (Doc. 101-6 at
21.)
On January 12, 2021, Plaintiff submitted an HNR stating he would like to be seen
for sharp stomach and groin pain from his prior hernia sites. (Doc. 87-2 at 3.) That same
day, Plaintiff was seen by Nurse RaeLee Williams via telemedicine; Nurse Williams
documented Plaintiff’s report of sharp pains right under the xyphoid process (lowest tip of
the sternum) and inguinal area and that it felt like it might be a knot. (Id.) Nurse Williams
documented a plan for Plaintiff to be seen on the provider line for his hernia issue, and she
advised him to avoid lifting heavy things. (Id. at 7–8.)
On January 20, 2021, Plaintiff was seen by NP Angel Merriman. (Doc. 87-1 at 3.)
NP Merriman noted that Plaintiff had a history of hernia issues and documented his reports
of abdominal pain. (Id.) NP Merriman noted that Plaintiff was wearing an abdomen
binder. (Id.) NP Merriman documented a plan to provide ibuprofen for Plaintiff’s back
pain. (Id. at 5.)
On March 6, 2021, Plaintiff submitted an Inmate Letter on which he wrote at the
top “HNR.” (Doc. 101-6 at 28.) Plaintiff requested follow up for stomach and groin pain
in the areas of his prior hernia surgeries. (Id.) Plaintiff wrote that he had “sharp & shocking
like, pricking pains in his stomach & groin areas where the two hernias were.” (Id.)
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On March 8, 2021, Plaintiff submitted an HNR stating he had stomach and groin
pain with a history of hernia surgeries and he would like to be seen. (Doc. 101-4 at 31; see
Doc. 101-5 at 50.)
On March 22, 2021, Plaintiff was seen by NP Merriman. (Doc. 87-1 at 7.) NP
Merriman noted Plaintiff’s history of hernia surgeries and report of stomach and groin pain.
(Id.) Plaintiff reported abdominal pain in the upper central quadrant and that he had kept
a journal but cannot correlate his pain to any food or position. (Id.) For Plaintiff’s stomach
pain, NP Merriman documented a plan to “avoid further trauma.” (Id. at 9.)
On March 26, 2021, Plaintiff submitted an Informal Complaint Resolution in which
he complained that when he saw NP Merriman, he explained that his daily stomach pain
was so severe that at times he could not sleep. (Doc. 101-2 at 43.) Plaintiff wrote that
Merriman determined there was a lump/knot in the center of his stomach and said it could
be a hernia or something else but refused Plaintiff’s request for an ultrasound or consult
because, according to Merriman, Centurion would not approve anything and there was
nothing she could do beyond prescribe ibuprofen. (Doc. 101-2 at 43.)
On April 6, 2021, Plaintiff had a health services encounter with Nurse Williams for
gastrointestinal (GI) and other issues. (Doc. 101-4 at 29; Doc. 87-2 at 15.) Plaintiff was
referred to the provider. (Id. at 19.)
On April 20, 2021, Plaintiff submitted an Inmate Letter, titled “HNR,” stating that
he had met with two providers via telemedicine and they recommended Roboxin and an
ultrasound for his stomach pain. (Doc. 108-7 at 8.) Plaintiff wrote that NP Merrian felt
the lump in Plaintiff’s stomach but put it off and said she could not do anything because
“they would deny it.” (Id.) Plaintiff wrote that Merriman should have ensured he got an
ultrasound, that he has not seen a provider for a while, and to please help. (Id.) On April
21, 2021, Nurse S. Jason issued an HNR response informing Plaintiff “if you have pain,
symptoms, or changes to stomach please let us know.” (Doc. 101-6 at 30.)
On April 23, 2021, Plaintiff had a health services encounter with Nurse James
Callahan for GI issues. (Doc. 101-4 at 29; Doc. 87-2 at 23.) Nurse Callahan documented
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that Plaintiff’s stomach pain continued, though Plaintiff denied diarrhea and constipation.
(Doc. 87-2 at 24.) Nurse Callahan assessed “alteration in comfort r/t [related to] stomach
pain” and noted that Plaintiff would be scheduled with a provider. (Id. at 26–27.)
On April 30, 2021, Plaintiff submitted an HNR asking for follow up with the
provider because he was in pain. (Doc. 101-6 at 35.) Plaintiff wrote that telemed providers
had recommended an ultrasound and he was still having bad pain in his stomach and the
hernia surgery areas. (Doc. 101-6 at 35.) The May 3, 2021 HNR response stated “PL,”
referring to the provider line. (Id.)
On May 5, 2021, Plaintiff saw NP Michael Brathwaite for abdominal pain. (Id. at
19.) NP Brathwaite assessed abdominal pain with history of ventral hernia repair and
documented a plan to “continue meds as ordered.” (Id. at 20.)
On June 14, 2021, Plaintiff saw NP Siji Thomas, who noted Plaintiff’s history of
two hernia repair surgeries—one on the abdomen and one on the right inguinal area. (Doc.
87-1 at 23.) Thomas documented Plaintiff’s report that for six months he had experienced
pins and needles in the abdomen and inguinal area as well as stabbing pain. (Id.) Thomas
assessed “possible GERD vs scar tissue from previous abdominal surgery.” (Id. at 24.)
Thomas documented a plan for omeprazole and to avoid spicy food, chocolate, and mint.
(Id. at 25.)
On June 27, 2021, Plaintiff saw Nurse Sarah Cartwright via telemedicine after
presenting to a nurse the night before with right side hernia stomach pain. (Doc. 101-5 at
5.) Plaintiff stated that, due to his hernia, it is difficult to get to the top bunk, and his
cellmate must assist him, and he requested a lower bunk “chrono.” (Id.) The entire medical
record for this encounter was not provided, so it is not clear what, if any action, Nurse
Cartwright took. (See id.)
On July 16, 2021, Plaintiff submitted an HNR stating that he needed a stomach
ultrasound due to a lump and sharp pain. (Doc. 101-6 at 36; Doc. 108-7 at 8.) The July
16, 2021 HNR response stated “NL,” referring to the nurse line. (Doc. 101-6 at 36.) That
same day, Plaintiff had a health services encounter with Nurse Sarah Cartwright for GI
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issues via telemedicine. (Doc. 101-4 at 29; Doc. 87-2 at 29.) Nurse Cartwright noted that
Plaintiff would be referred to the provider. (Doc. 87-2 at 33.)
On July 21, 2021, Plaintiff saw NP Kendra Avant-Ortiz via telemedicine for reports
of sharp pain “like a lightning strike in his abdomen.” (Doc. 87-1 at 27.) Avant-Ortiz
assessed stomach pain and documented a plan for a KUB—a kidney, ureter, and bladder
x-ray—and, if the KUB was positive, to consider an ultrasound. (Id. at 28–29.) NP Avant-
Ortiz documented a plan for follow up for the results in 2–3 weeks. (Id. at 29.) At some
point between then and August 15, 2021, Plaintiff had the KUB. (See Doc. 101-6.)
On July 30, 2021, Plaintiff saw Defendant NP Thomas for low back pain. (Doc. 87-
4 at 30.) NP Thomas advised Plaintiff to stretch, continue taking Tylenol as needed, and
that he may use a TENS unit. (Id. at 32.)
On August 2, 2021, Plaintiff saw Defendant NP Thomas for chronic pain, high
cholesterol, and a toenail fungus. (Doc. 87-4 at 26.)
On August 15, 2021, Plaintiff submitted an HNR stating that he had not been
advised of the x-ray result and whether it shows where his sharp stomach pain was coming
from, and that NP Ortiz informed him that if the x-ray does not find it, she would order an
ultrasound. (Doc. 101-6 at 45; Doc. 108-7 at 8.)
On August 16, 2021, Plaintiff had a health services encounter with Sheila Sines for
GI issues, but the accompanying record for this encounter is not found. (Doc. 101-4 at 29.)
On August 23, 2021, Plaintiff saw NP Avant-Ortiz via telemedicine, at which time
he reported continued ongoing, sharp, abdominal pain around the area of his hernia and
requested an ultrasound. (Doc. 87-1 at 31.) Plaintiff complained of constant stomach pain
to NP Ortiz. (Doc. 108 ¶ 6.) NP Avant-Ortiz noted that Plaintiff had a KUB, which showed
only non-obstructive gas patterns. (Doc. 87-1 at 31.) NP Avant-Ortiz assessed abdominal
pain and documented a plan to consult with the Site Medical Director to see if an abdomen
ultrasound was warranted. (Id. at 32–33.)
On September 25, 2021, Plaintiff saw NP Adolfo via telemedicine for epigastric
(upper middle abdomen area) pain that had been ongoing for six months without any relief
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from Omeprazole. (Id. at 35.) NP Adolfo assessed “epigastric pain – peptic ulcer vs h.
pylori infection vs chronic pancreatitis.” (Id. at 36.) NP Adolfo documented a plan to
include diet modifications and follow up as needed. (Id. at 37.) NP Adolfo also ordered
labs, which were negative for h. pylori. (Doc. 87-6 at 2–3.)
On October 14, 2021, Plaintiff saw Defendant NP Thomas for chronic back pain
and pain medication. (Doc. 87-4 at 22.)
On November 16, 2021, Plaintiff saw Defendant NP Thomas for chronic back pain.
(Doc. 87-4 at 18.)
On January 26, 2022, Plaintiff submitted an HNR stating that he would like to be
seen for his hernia that is causing daily pain. (Doc. 108-7 at 8.) The medical records
document “encounter held” on this date; however, the specific medical record showing an
assessment or plan is not found. (Id.)
On February 4, 2022, Plaintiff saw Defendant NP Thomas for chronic neck and back
pain. (Doc. 87-4 at 14.)
On March 17, 2022, Plaintiff saw Defendant NP Thomas for stomach pains and a
back injury. (Doc. 101-3 at 16–17; Doc. 87-4 at 10.) NP Thomas only addressed Plaintiff’s
back injury pain and prescribed Cymbalta, despite Plaintiff’s concern that he may be
allergic to Cymbalta. (Id.) Plaintiff told NP Thomas that he believed he had a severe
reaction to Cymbalta in the past and that she should check his chart, but she declined to do
so. (Doc. 108-2 at 13.)
A couple days after taking Cymbalta, Plaintiff experienced blurred vision, itching,
dizziness, vertigo, and difficulty with his motor skills. (Doc. 108-2 at 14.) On March 19,
2022, a Correctional Officer activated an ICS due to Plaintiff’s worsening condition. (Id.)
Plaintiff was taken to medical in a wheelchair and given a Benadryl injection to bring down
severely elevated blood pressure. (Id. at 14–15.)
On March 29, 2022, Plaintiff saw Defendant NP Thomas to address the allergic
reaction to Cymbalta. (Doc. 87-4 at 6.) NP Thomas noted that Plaintiff’s allergy reactions
went away after he stopped the Cymbalta. (Id.)
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On April 19, 2022, Plaintiff saw Defendant NP Thomas for chronic pain related to
back injuries. (Doc. 87-4 at 2.)
On April 29, 2022, Plaintiff submitted an HNR stating that he still had bad stomach
pains “perhaps due to the long period with my double hernias before any surgery was done
or something else & still no ultrasound as advised a long time ago.” (Doc. 101-6 at 10.)
The April 30, 2022 response informed Plaintiff that he was scheduled to be seen in the
middle of May 2022. (Id.)
On May 26, 2022, Plaintiff submitted an HNR stating that he had requested to be
seen for his constant stomach pain. (Doc. 101-5 at 1.)
On May 27, 2022, Plaintiff saw Nurse Johanna Grignani, who noted Plaintiff’s
report that he had hernia pain. (Doc. 87-2 at 35.) Nurse Grignani assessed “alteration in
comfort related to pain,” and referred Plaintiff to a provider. (Id. at 37, 39.)
On June 10, 2022, Plaintiff saw NP Sharon Kary via telemedicine for complaints of
abdominal pain in the epigastric region for the past year. (Doc. 87-1 at 39.) NP Kary
documented that Plaintiff complained of abdominal pain for one year, “epigastric region,
0/10 at this time, sharp, slowly subsides, occurs before eating or after eating, sharp pain
occasionally wakes him up.” (Id.) But Plaintiff states that he never reported a pain level
at 0/10 because it was always at least 5/10 or higher, and he states he suffered pain all the
time. (Doc. 108 ¶ 24.) NP Kary noted Plaintiff’s history of a July 2019 abdominal surgery
and history of inguinal hernia. (Id.) NP Kary ordered an abdominal x-ray. (Doc. 87-6 at
16.)
The abdominal x-ray showed nonspecific bowel gas and feces patterning with no
acute disease identified in the abdomen. (Id.)
On July 7, 2022, Plaintiff saw NP Weigel for complaints of hernia pain in the left
inguinal areas, but Weigel noted that no hernia was observed on examination. (Doc. 101-
5 at 25.) NP Weigel noted Plaintiff’s history of a right inguinal hernia. (Id.)
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On July 12, 2022, Plaintiff submitted an HNR stating that the telemed provider had
ordered blood work and a stomach x-ray for his sharp stomach pains, yet nothing had been
discussed with him yet. (Doc. 101-5 at 27.)
On July 13, 2022, Plaintiff saw Nurse Anna Hernandez in response to his HNR.
(Doc. 87-2 at 41.) Nurse Hernandez noted that Plaintiff was referred to the provider line.
(Id. at 44.)
On July 21, 2022, Plaintiff saw NP Weigel, who documented that Plaintiff’s
abdomen was soft and nontender with good bowel sounds and there was no evidence of a
hernia. (Doc. 101-4 at 13.)
Shortly after the July 21, 2022 appointment with NP Weigel, Plaintiff underwent an
abdominal ultrasound. (Doc. 101-4 at 39.) The July 27, 2022 ultrasound report concluded
“non-obstructive bowel gas pattern. No radiographic evidence of an obvious acute
abdominal or pelvic abnormality. Further evaluation with an IV and oral contrast-enhanced
CT of the abdomen and pelvis would be warranted for persistent clinical concern and/or
worsening symptoms.” (Doc. 87-6 at 14.)
On July 27, 2022, Plaintiff had an x-ray of the groin, which showed “apparent
inguinal hernia, not containing bowel.” (Doc. 87-6 at 18.)
On July 31, 2022, Plaintiff saw NP Weigel for follow up on the ultrasound report.
(Doc. 101-4 at 39.) NP Weigel documented a plan for a hernia belt and to submit a consult
to Rubicon (an online medical consultation service). (Doc. 87-1 at 53.) Plaintiff did not
receive a hernia belt. (Doc. 108 ¶¶ 28, 56.)
On August 11, 2022, Plaintiff submitted an HNR complaining of inadequate
medical care and he requested an MRI to determine the source of his stomach pain. (Doc.
101-4 at 47.)
On August 13, 2022, Plaintiff was seen by Nurse Alex Dutton via telemedicine.
(Id.) Nurse Dutton documented that Plaintiff’s chief complaint was abdominal pain, but
the rest of the medical record for this encounter is not found. (Id.)
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On August 26, 2022, Plaintiff saw NP Weigel for continuous abdominal pain for
one year. (Doc. 101-5 at 45.) NP Weigel documented that Plaintiff reported pain at a 5/10
level; however, Plaintiff states his pain was actually at 10/10. (Id.; Doc. 108 ¶ 29.) NP
Weigel noted a plan to prescribe Pantoprazole and refer Plaintiff for an abdominal
ultrasound. (Doc. 101-5 at 46.)
On August 26, 2022, a consult request was submitted for an abdomen CT. (Doc.
101-4 at 35.) It appears no CT was ever done.
On or about September 8, 2022, Plaintiff underwent an abdominal ultrasound, which
concluded “no ascites, cirrhosis, or hepatic mass.” (Doc. 87-6 at 20.)
On September 22, 2022, Plaintiff submitted an HNR asking about the ultrasound
results and stating that he still feels pain often. (Doc. 108-3 at 15.)
On October 1, 2022, NaphCare became the contracted healthcare provider for
prisoners in ADCRR custody. (Doc. 87 ¶ 1.)
On October 12, 2022, Plaintiff submitted an HNR reporting stomach pain and
requesting renewal of his current SNOs. (Id. at 87-5 at 61–62.)
On October 17, 2022, Plaintiff saw Defendant NP Thomas for his complaint of
stomach pain. (Id. at 60–61.) Plaintiff reported bad stomach pain for over a year mostly
in the upper and mid abdomen; pain that was lingering at times and sharp pain; pain level
at 10/10; and “jolt and stabbing pain.” (Id. at 61.) NP Thomas examined Plaintiff and felt
the lump, which was the hernia. (Doc. 108 ¶ 31.) NP Thomas assessed “possible GERD
vs gastritis vs PUD vs IBS vs Chron’s [sic] disease vs ulcerative colitis,” and ordered labs
and Pantoprazole, Colace, Fibercon, and Dicyclomine (treats IBS). (Doc. 87-5 at 61.)
On October 17, 2022, Plaintiff submitted an HNR stating that he saw Defendant NP
Thomas that morning for his stomach pain, and she informed him he had a urine infection,
or UTI. (Doc. 101-6 at 46.) Plaintiff wrote that, according to his niece who is a nurse, the
standard of care for a UTI with stomach pain is an MRI and antibiotics; however, NP
Thomas did not provide any treatment or medication. (Id.) The HNR response stated,
“sent to NaphCare for chart review & FHA Renna.” (Id.)
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Also on October 17, 2022, Plaintiff filed an Inmate Letter to complain about
Defendant NP Thomas’ lack of adequate treatment at that day’s appointment. (Doc. 108-
1 at 51.) Plaintiff wrote that, despite diagnosing Plaintiff with a UTI, NP Thomas provided
no treatment apart from suggesting Tylenol and advising him to meditate, and Thomas
discontinued Plaintiff’s treatment prescribed by another provider for Plaintiff’s neck and
back pain. (Id.)
On November 7, 2022, Plaintiff saw Defendant NP Thomas. (Doc. 87-5 at 58–59.)
NP Thomas documented that Plaintiff reported he still had pain in the left groin and left
lower and mid abdomen; that the pain was occasional; and that he sometimes had stinging
during urination. (Id. at 59.) But Plaintiff states that, at this time, his pain was constant
and so severe it would wake him from sleep at times. (Doc. 108 ¶ 32.) In the “Plan”
section of the medical record, NP Thomas wrote “possible IBS vs. dyspepsia vs
malingering vs gastritis vs indigestion: will continue bowel care” with medications. (Doc.
87-5 at 59.)
On November 25, 2022, Plaintiff submitted an Informal Complaint Resolution
stating that he had undergone multiple ultrasounds and been diagnosed by Dr. Weigel with
a groin hernia. (Doc. 101-3 at 5.) Plaintiff requested to be seen by a specialist. (Id.)
On December 26, 2022, Plaintiff submitted an HNR requesting to see a physician
about his hernia and last ultrasound. (Doc. 87-5 at 55–56.)
On January 13, 2023, Plaintiff saw Defendant NP Thomas and reported pain in the
mid stomach for a year and in the left lower abdomen for the past three months, and
constipation. (Doc. 87-5 at 53–54.) NP Thomas ordered labs and Tylenol for pain. (Id. at
54.) NP Thomas told Plaintiff that she could not recommend a consult to a hernia specialist.
(Doc. 108 ¶ 34.)
On January 27, 2023, Plaintiff saw Defendant NP Thomas to follow up on labs.
(Doc. 87-5 at 52–53.) Plaintiff again requested a GI/hernia consult. (Doc. 108 35.) NP
Thomas noted Plaintiff’s report of left lower abdominal pain for the prior 8 days along with
bloating, fever, and vomiting, and chronic abdominal pain in mid abdomen for over a year.
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(Doc. 87-5 at 53.) At this time, Plaintiff was suffering excruciating pain whenever he used
the bathroom. (Doc. 108 35.) NP Thomas ordered a fecal occult blood test. (Doc. 87-5 at
53
On January 31, 2023, Plaintiff submitted an HNR stating that he was seen by
Defendant NP Thomas, who informed him that he had blood in his stool sample and was
going to schedule him to see a specialist but instead wanted another stool sample. (Doc.
87-5 at 51–52.) Plaintiff complained that he had experienced constant stomach pains for
over a year now, yet NP Thomas refused to send him to a specialist or provide a known
working pain management medication and instead advised Plaintiff to meditate. (Id. at
52.) Nurse Angela responded to the HNR and advised Plaintiff to provide a second stool
sample and allow a blood draw so the provider can make referrals if necessary. (Id.) Nurse
Johnson informed Plaintiff that he could submit an Inmate Letter to Medical Director
Stewart regarding issues with medical care, but the nurse could not override the provider.
(Id.)
On March 1, 2023, Plaintiff saw Defendant NP Thomas. (Doc. 87-5 at 48–49.) NP
Thomas noted that Plaintiff reported abdominal pain for over a year and sharp pains in the
center of abdomen that comes and goes. (Id. at 49.) But Plaintiff states that his pain did
not come and go but was constant—he was always in pain. (Doc. 108 ¶ 36.) In the “Plan”
section of the medical record, NP Thomas wrote “possible IBS vs Chron’s [sic] disease vs
colitis vs colon cancer vs hemorrhoids vs diverticulitis; referred to GI for evaluation. Will
monitor.” (Doc. 87-5 at 49.)
On March 31, 2023, Plaintiff saw Defendant NP Thomas for a chronic care visit and
to follow up on elbow pain. (Doc. 87-4 at 35.)
On April 4, 2023, Plaintiff saw Dr. Nadir Abdul, a gastroenterologist. (Doc. 87-7
at 2; see Doc. 101-4 at 28; see Doc. 87-5 at 45.) Dr. Abdul noted that Plaintiff had suffered
upper abdominal pain for over a year and had lost 20 pounds over the past year. (Doc. 87-
6 at 2.) Dr. Abdul conducted a complete examination and ordered an abdomen and pelvis
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CT with and without contrast, an upper endoscopy procedure (EGD), a colonoscopy, and
labs. (Id. at 2–3.) Dr. Abdul also ordered follow up in 8 weeks. (Id. at 3.)
Shortly thereafter, NaphCare ordered an alternative treatment plan (ATP) in
response to Dr. Abdul’s order for imaging and procedures. (Doc. 87-3 at 4, Thomas Decl.
¶ 19.)
On April 21, 2023, Plaintiff saw Defendant NP Thomas for follow up on the ATP.
(Doc. 87-5 at 43–44.) NP Thomas documented that she explained that the ATP
recommended waiting until the diagnostic work up was done before further imaging. (Id.
at 44.) But Plaintiff states that NP Thomas did not discuss the ATP with him. (Doc. 108
38.)
On May 2, 2023, Plaintiff underwent a stomach biopsy, which showed chronic
active gastritis with H. pylori organisms. (Doc. 87-7 at 5.) Plaintiff also underwent an
upper GI endoscopy, which was normal, and Dr. Abdul performed the colonoscopy, which
was normal. (Id. at 6, 8, 10.)
On May 5, 2023, Plaintiff saw NP Jennifer Begner following the GI consult and
colonoscopy. (Doc. 87-5 at 42–43.) Plaintiff reported abdominal pain, and NP Begner
documented a plan for a CT without contrast. (Id. at 43.) It appears that no CT was done.
On May 9, 2023, Plaintiff saw Defendant NP Thomas for follow up on the
gastroenterologist’s recommendations. (Doc. 87-5 at 41–42.) NP Thomas noted that
Plaintiff had an EGD and the biopsy was positive for H. pylori infection. (Id. at 42.) NP
Thomas documented Plaintiff’s report of abdominal pain and occasional constipation and
diarrhea. (Id.) NP Thomas prescribed Doxycycline, Metronidazole, Pepto-Bismol, and
Pantoprazole. (Id.)
On June 7, 2023, Plaintiff submitted an HNR stating that he saw a GI specialist a
while ago for stomach issues and he wanted to know the specialist’s recommendations.
(Doc. 101-6 at 49; Doc. 101-7 at 33.) Plaintiff wrote that he was still having sharp stomach
pains and it has been over a year and a half. (Id.) Plaintiff further wrote that NP Thomas
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had diagnosed Plaintiff with IBS and Plaintiff’s stool was still very dark green. (Id.) The
HNR response stated, “Placed on NL,” referring to nurse line. (Id.)
On June 9, 2023, Plaintiff submitted an Informal Complaint Resolution in which he
wrote that he had suffered severe stomach pains daily, and he was finally taken to a GI
specialist, who performed a colonoscopy and biopsy and diagnosed Plaintiff with a H.
pylori infection. (Doc. 101-3 at 19.) Plaintiff wrote that he was prescribed antibiotics;
however, it had been two weeks and he had not been given the antibiotics. (Id.)
On July 18, 2023, Plaintiff saw Defendant NP Thomas for a chronic care visit. (Doc.
87-4 at 41–42, 47.)
On July 21, 2023, Plaintiff submitted an HNR stating that he spoke to NP Thomas
and she advised Plaintiff to (1) ask for information regarding the two brand names and
serial numbers of the hernia mesh used in his 2019 hernia surgery and (2) inquire about
renewal of a bottom bunk SNO. (Doc. 87-5 at 35–36.) The medical record notes that
Plaintiff did not qualify for a bottom bunk SNO. (Id. at 36.)
On August 2, 2023, Plaintiff submitted an HNR asking to be seen for his lower right
hernia and inquiring if he will be sent for a hernia consult. (Doc. 87-5 at 34.)
On August 7, 2023, Plaintiff filed an Informal Complaint Resolution stating that he
was diagnosed with H. pylori, which comes from contaminated water. (Doc. 59-3 at 13.)
Plaintiff wrote that, because the Unit’s water is contaminated, he would like to know what
kind of pipes were used for water flow, what kind of filters were used and where they were
placed, and whether he could purchase a water purifier filter from the store or a vender.
(Id.) The Informal Complaint Resolution response informed him that a water purifier filter
is not available to purchase through the prison vendor. (Id.)
On or about August 9, 2023, Plaintiff filed a Formal Grievance regarding his request
to purchase a water purifier filter because the water at the Eyman Complex has caused him
injury. (Id. at 9.) The Formal Grievance Response informed Plaintiff that, as far as any
medical claims he had, he must submit an HNR. (Id.)
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On August 27, 2023, Plaintiff submitted an HNR requesting to be seen for various
issues, including increasing stomach pains and a hernia consult. (Doc. 87-5 at 30–31.)
On September 6, 2023, Plaintiff saw PA Bellene Racowsky for a chronic care visit
related to his back and neck pain. (Doc. 87-5 at 27–28.) PA Racowsky wrote in the record
that Plaintiff also complained about an inguinal hernia he has had for 1 1/2 years with no
nausea, vomiting, or pain, but he wanted it evaluated. (Id. at 28.) Plaintiff states that he
told the PA he suffered daily, excruciating pain that woke him from sleep and he told her
that he needed to see a specialist. (Doc. 108 ¶ 45.)
On September 11, 2023, Plaintiff saw Defendant NP Thomas for follow up on his
inguinal hernia. (Doc. 87-5 at 27.) NP Thomas documented that Plaintiff reported having
the hernia for 1.5 years; that he could push it back in; that he had stomach pains all the
time; and that pain level was on and off at 6–7/10. (Id.) Plaintiff states that NP Thomas
told him the hernia was reducible, which NaphCare considers elective surgery regardless
of his symptoms and that NaphCare would not approve a consult or surgery unless the
hernia burst or there was an emergency. (Doc. 108 ¶ 46.) At this time, Plaintiff had
constant pain that affected his daily living, including urinating, sleeping, and sitting up.
(Id.) NP Thomas assessed possible abdominal wall hernia, advised Plaintiff to avoid
strenuous work outs, and ordered an ultrasound. (Doc. 87-5 at 27.)
On September 24, 2023, Plaintiff filed a grievance stating that the water at his unit
was “toxic and/or contaminated” and that the water caused his medical issues. (Doc. 59-3
at 6.) Plaintiff requested that he be allowed to purchase directly from a vendor a water
purifier or Bristol water purifier bottle or cup. (Id.) The response to this grievance, issued
by Defendant Julie Bowers, informed Plaintiff that he provided no evidence to support the
claim that water at the unit was unsuitable for drinking and that Defendant Sean Malone,
Assistant Director for Prison Operations, had not responded to Plaintiff’s request to
purchase a water purifier. (Id. at 3.) Bowers informed Plaintiff that his complaint was
forwarded to Fred Moreno, Assistant Director for Facilities, and, if he can answer questions
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regarding the plumbing and water filtration at Eyman Complex, an amended response
would be provided to Plaintiff. (Id.)
On October 3, 2023, Plaintiff saw Defendant NP Thomas for a chronic care visit.
(Doc. 87-4 at 52–53.) Also on this date, Plaintiff underwent an extremity ultrasound, which
showed a left inguinal hernia. (Doc. 87-8 at 4.)
On October 18, 2023, Plaintiff saw Defendant NP Thomas for his left inguinal
hernia. (Doc. 87-5 at 25–26.) Plaintiff reported pain when walking, getting up, and sitting
up; pain level at 9/10; that he cannot do anything; and that he had to hold his side when
using the restroom. (Id. at 26.) In the “Plan” section of the medical record, NP Thomas
noted “left inguinal hernia: referred to general surgery for evaluation and treatment.” (Id.)
On November 14, 2023, Plaintiff saw Dr. Gregory Robertson, a surgeon. (Doc. 87-
7 at 13.) Dr. Robertson noted Plaintiff’s 2-year history of increasing discomfort associated
with a left groin bulge and conducted a history and complete examination. (Id. at 13–14.)
Plaintiff explained to Dr. Robertson that the hernia above his belly button would not push
in or out. (Doc. 108 ¶ 50.) Dr. Robertson assessed a left inguinal hernia that needed repair
and a possible recurrence of a right inguinal hernia that, if necessary, could be repaired at
the same time. (Doc. 87-7 at 14.)
On December 14, 2023, Plaintiff submitted an HNR stating that he was having
severe pains in his mid-stomach that woke him up from sleep, he had constant pain, and it
felt like when he had the H. pylori infection. (Doc. 108-6 at 32.) Plaintiff also inquired
whether his hernia surgery had been approved. (Id.)
On the night of December 27, 2023, Plaintiff had an emergency medical ICS due to
excruciating stomach pains. (Doc. 108 51–52; Doc. 87-10 at 2–4.) Plaintiff was given
Protonix, Tylenol, Loperamide, and Bentyl. (Doc. 87 ¶ 51.)
On January 11, 2024, Plaintiff saw Nurse Jetta Valle, apparently as follow up to the
ICS. (Doc. 87-5 at 19–20; Doc. 87 ¶ 51.) Plaintiff complained of pain in the epigastric
and right upper quadrant areas. (Doc. 87-5 at 20.)
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On January 24, 2024, Plaintiff underwent a left inguinal hernia repair surgery. (Doc.
101-8 at 3; Doc. 87-5 at 17.) Dr. Robertson recommended follow up in the office 1–2
weeks later. (Doc. 87-7 at 16, 22.)
On January 26, 2024, Plaintiff developed a sudden increase in pain with dysuria
(pain, burning, or discomfort during urination) and he was sent to the emergency room for
evaluation. (Doc. 87-5 at 11; Doc. 87-7 at 53.) The hospital discharged Plaintiff and
recommended a urology follow up in one week. (Doc. 87-5 at 11.)
On February 20, 2024, Plaintiff had an off-site surgery follow up. (Doc. 87-5 at 6;
Doc. 87-7 at 48–49.) Dr. Robertson conducted an examination and recommended scrotal
support, elevation of scrotum on rolled towels when supine, and a heating pad or hot
patches for use in area of abdominal wall. (Id. at 49–50.)
Upon his return to the prison, Pamela Olmstead documented in Plaintiff’s medical
record that a jock strap was ordered but that she “disagree[d] with heating pad/hot pad”
recommendation because those items for comfort were not available in a close/max custody
yard and were not medically necessary; rather, Plaintiff could use a warm compress/towel
for scrotal swelling. (Doc. 108-6 at 22.)
On March 7, 2024, Plaintiff saw an offsite urologist, Dr. Anthony Woodruff, for
testicular pain and swelling. (Doc. 87-11 at 2–3.) Dr. Woodruff noted that Plaintiff’s pain
was improving, and the swelling had resolved. (Id. at 3.) Dr. Woodruff explained that he
was not an expert in management of postoperative hernia repair. (Id.) Dr. Woodruff found
no infectious or malignant explanation for the testicular pain, and he recommended sitz
baths, scrotal support, NSAIDs, and to avoid excessive manipulation. (Id.)
On March 8, 2024, the scrotal support/athletic supporter was delivered to the yard.
(Id. at 21–22.)
V. Summary Judgment Based on Exhaustion
State Defendants argue that Plaintiff did not exhaust administrative remedies for his
claims regarding inadequate medical care against Defendants Shinn and Thornell in Count
One. (Doc. 58 at 9.)
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A. Legal Standard
Under the PLRA, a prisoner must exhaust “available” administrative remedies
before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill,
449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934–35 (9th Cir.
2005). The prisoner must complete the administrative review process in accordance with
the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required
for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the
type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731,
741 (2001). “Exhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).
Failure to exhaust is “an affirmative defense the defendant must plead and prove.”
Jones v. Bock, 549 U.S. 199, 204 (2007). The defendant bears the burden to show that
there was an available administrative remedy and that the prisoner did not exhaust it.
Albino, 747 F.3d at 1172; see Brown, 422 F.3d at 936–37. If the defendant can make that
showing, the plaintiff must either demonstrate that he, in fact, exhausted administrative
remedies or “come forward with evidence showing that there is something in his particular
case that made the existing and generally available administrative remedies effectively
unavailable to him.” Albino, 747 F.3d at 1172. The ultimate burden, however, rests with
the defendant. Id.
B. Discussion
State Defendants assert that the ADCRR grievance process is set out in Department
Order (DO) 802, Inmate Grievance Procedure. (Doc. 59 1.) In support of their exhaustion
argument, State Defendants submit the copy of DO 802 that was in effect at the time
Plaintiff’s claims arose. (Doc. 59-1 at 2–3 (Do 802 “Effective Date: March 2, 2022”).)
But State Defendants did not submit all of the relevant pages of DO 802; they submitted
only pages 1, 3, 4, 6, and 10 of the policy. (See id. at 3–7.) Although the Court can take
judicial notice of government websites, the version of DO 802 available on the ADCRR
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website became effective on May 12, 2025, after Plaintiff’s claim arose and after he used
the ADCRR grievance process; thus, it is not applicable to exhaustion in this case.5
The portion of DO 802 submitted by State Defendants shows that, for a complaint
regarding medical care, a prisoner must submit an Informal Complaint Resolution, to
which the contract Assistant Director of Nursing must respond within 15 days. (Doc. 59-
1 at 5.) The portion of DO 802 submitted by State Defendants does not include any other
information regarding what further steps a prisoner may take after the Assistant Director
of Nursing’s response because, presumably, that information is on the pages omitted by
State Defendants. (See id. at 5–7.)
To show a failure to exhaust, the movant has the burden to demonstrate that
pertinent relief remained available through the prison’s grievance process. Brown, 422
F.3d at 436. Relevant evidence to make this showing includes “statutes, regulations, and
other official directives that explain the scope of the administrative review process; [and]
documentary or testimonial evidence from prison officials who administer the review
process[.]” Id. at 936–37. State Defendants fail to provide a complete copy of DO 802,
and they submit no other regulations or official directives that explain the steps in the
administrative remedy process for a complaint related to medical care. Nor do State
Defendants submit a declaration of a prison official describing the steps in the ADCRR
grievance process. (See Doc. 59.) State Defendants’ incomplete copy of DO 802, without
more, is insufficient to establish that the prison had an available grievance process, that
relief remained available to Plaintiff through this grievance process for his claims regarding
inadequate medical care in Count One, and that Plaintiff failed to exhaust the steps in the
grievance process. See Albino, 747 F.3d at 1172; Wyatt v. Terhune, 315 F.3d 1108, 1120
& n.15 (9th Cir. 2003) (finding the defendants’ documents inadequate to establish that the
plaintiff failed to exhaust), overruled in part on other grounds by Albino, 747 F.3d 1162.
5 See DO 802, Inmate Grievance Procedure,
https://corrections.az.gov/sites/default/files/documents/policies/800/DO%20802%20-
%20Eff.%205-12-25.pdf
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Because State Defendants fail to meet their initial evidentiary burden, the Court
need not consider Plaintiff’s Response. See Nissan Fire, 210 F.3d at 1102–03. State
Defendants’ Motion will be denied on the issue of exhaustion.
VI. Summary Judgment on the Merits
A. Counts One and Three-Medical Care
1. Legal Standard
To support a medical care claim under the Eighth Amendment, a prisoner must
demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are
two prongs to the deliberate-indifference analysis: an objective standard and a subjective
standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). A
“‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in
further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin
v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other grounds by WMX
Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal citation
omitted). Examples of indications that a prisoner has a serious medical need include “[t]he
existence of an injury that a reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and substantial pain.” Id. at 1059–
60.
Second, a prisoner must show that the defendant’s response to that need was
deliberately indifferent. Jett, 439 F.3d at 1096. A prison official is deliberately indifferent
to a serious medical need if he “knows of and disregards an excessive risk to inmate
health.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This prong is satisfied by showing
“(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and
(b) harm caused by the indifference.” Id. “Prison officials are deliberately indifferent to a
prisoner’s serious medical needs when they ‘deny, delay or intentionally interfere with
medical treatment.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (quoting
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Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). “In deciding whether
there has been deliberate indifference to an inmate’s serious medical needs, [courts] need
not defer to the judgment of prison doctors or administrators.’” Colwell v. Bannister, 763
F.3d 1060, 1066 (9th Cir. 2014) (quoting Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
1989)).
Even if deliberate indifference is shown, to support an Eighth Amendment claim,
the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see
Hunt, 865 F.2d at 200 (delay in providing medical treatment does not constitute Eighth
Amendment violation unless delay was harmful). But a prisoner need not show that his
harm was substantial. Jett, 439 F.3d at 1096.
2. Discussion
a. Serious Medical Need
State Defendants do not address the first prong in the deliberate indifference
analysis—whether Plaintiff’s condition constituted a serious medical need. (See Doc 58.)
Medical Defendants state only that “it was initially determined that Plaintiff did not have
a serious medical need requiring surgery[.]” (Doc. 89 at 16.)
The evidence, construed in Plaintiff’s favor, shows that, beginning in January 2020,
Plaintiff began reporting pain, including sharp, stabbing pain in the areas where he
previously had hernias. (See Doc. 108-5 at 38; Doc. 101-2 at 39.) For the next three years,
Plaintiff continued to suffer sharp and stabbing pain in the stomach and groin, daily pain
so severe that it interfered with his sleep, difficulty and pain urinating, excruciating pain at
10/10 levels, pain all the time, and pain that affected his activities of daily living. (See,
e.g., Doc. 101-6 at 21, 26; Doc. 101-4 at 40; Doc. 101-2 at 43; Doc. 87-1 at 23; Doc. 87-5
at 27, 61; Doc. 108-7 at 8; Doc. 108 24, 29, 32, 35, 45, 46.) This evidence supports that
Plaintiff’s condition constituted a serious medical need. See McGuckin, 974 F.2d at 1059–
60; Jones v. Johnson, 781 F.2d 769, 771–72 (9th Cir. 1986) (recognizing that a painful
hernia constitutes a serious medical need requiring treatment).
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b. Deliberate Indifference-Individual Capacity Claims
The second prong in the analysis examines whether Defendants’ were deliberately
indifferent to Plaintiff’s serious medical need. The inquiry into an individual defendant’s
liability for deliberate indifference “must be individualized and focus on the duties and
responsibilities of each individual defendant whose acts or omissions are alleged to have
caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988);
see Rizzo v. Goode, 423 U.S. 362, 370–71, 375–77 (1976).
i. Directors Shinn and Thornell
A supervisor may be liable in his individual capacity under § 1983 “if there exists
either (1) his or her personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.” Starr v. Baca, 652 F.3d 1202 (9th Cir 2011) (quoting Hansen v.
Black, 885 F.2d 642, 646 (9th Cir. 1989)). A causal connection can be “an affirmative
link” between a constitutional deprivation and “the adoption of any plan or policy by [a
supervisor,] express or otherwise showing [his or her] authorization or approval of such
misconduct.” Rizzo v. Goode, 423 U.S. 362, 371 (1976). In other words, a supervisor can
be liable for creating policies and procedures that violated a plaintiff’s constitutional rights.
Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012). The sufficient causal connection
“may be shown by evidence that the supervisor “implement[ed] a policy so deficient that
the policy ‘itself is a repudiation of constitutional rights[.]’” Hansen v. Black , 885 F.2d
642, 646 (9th Cir. 1989) (citation omitted).
In addition, “a prison administrator can be liable for deliberate indifference to a
prisoner’s medical needs if he ‘knowingly fail[s] to respond to an inmate’s requests for
help.’” Peralta, 744 F.3d at 1085–86 (quoting Jett, 439 F.3d at 1098).
State Defendants argue that the Eighth Amendment claim against Defendants Shinn
and Thornell must be dismissed because Plaintiff cannot show Shinn or Thornell were
aware of or reviewed Plaintiff’s grievances about medical treatment; thus, there is no
showing that either Defendant was subjectively aware of a risk of serious harm to Plaintiff
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and consciously disregarded that risk. (Doc. 58 at 10–11.)
In response, Plaintiff does not claim that Shinn or Thornell created or implemented
a deficient policy that led to the denial of adequate medical care. Instead, he claims that
Shinn and Thornell were aware of Plaintiff’s serious medical needs and the denial of care
and failed to respond or correct the deficiencies. (Doc. 103 at 9–11.) Plaintiff asserts that
throughout the relevant time, there was ongoing litigation, articles, and court testimony
about the inadequate medical care at ADCRR, and Plaintiff submitted grievances seeking
help for his pain and suffering, which he argues put Defendants Shinn and Thornell on
notice of the healthcare providers’ failures. (Id. at 10.) Plaintiff further argues that these
Defendants were aware of the inadequate medical care via reports, HNRs, and hospital
records but they disregarded the issue or refused to correct the harm and, consequently, the
depravations continued. (Id. at 11, 13–14.)
There is no evidence that Defendants Shinn and Thornell, as ADCRR Directors and
nonmedical officials, had access to and reviewed Plaintiff’s HNRs, hospital records, and
medical reports such that they would have known of Plaintiff’s hernia condition and
ongoing pain at the relevant time.
In support of his claim that he filed grievances that put Shinn and Thornell on notice
of his condition and the inadequate medical care, Plaintiff cites to Exhibit 2A, which he
labeled “Grievance Log.” (Doc. 103 at 10; Doc. 101-2 at 31.) Exhibit 2A consists of 62
pages of grievance documents. (Doc. 102-2 at 31–49; Doc. 102-3 at 1–45.) Plaintiff does
not cite a page number within Exhibit 2A, nor does he refer to a grievance number or even
the dates of grievance documents that may support his claim. (See Doc. 103 at 10.) This
is not sufficient. Federal Rule of Civil Procedure 56(c)(1) requires a party to support any
factual assertion by citing to “particular parts of the materials in the record.” The Court is
“not required to comb the record” to find supporting evidence. Carmen v. S.F. Unified
Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001); see Indep. Towers of Wash. v. Wash., 350
F.3d 925, 929 (9th Cir. 2003) (“[j]udges are not like pigs, hunting for truffles buried in
briefs”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Thus,
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“[g]eneral references without page or line numbers are not sufficiently specific.” S. Cal.
Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
Plaintiff fails to identify the litigation or submit copies of the articles or court
testimony that purportedly put Defendants Shinn and Thornell on notice of inadequate
medical care. Nor does Plaintiff show how other litigation and articles regarding
inadequate medical care at ADCRR would have put Defendants Shinn and Thornell on
notice of Plaintiff’s medical condition and the alleged denial of care for his hernias and
severe pain. Plaintiff’s general and conclusory assertions are insufficient to show that these
Defendants were subjectively aware of Plaintiff’s serious medical need and disregarded it.
See Comprehensive Med. Ctr., Inc. v. State Farm Mutual Auto. Ins., 690 F. Supp. 3d 1104,
1114 (C.D. Cal. 2023) (“conclusory, speculative testimony in declarations or other
evidentiary materials is insufficient to raise genuine issues of material fact and defeat
summary judgment”); see also Nelson v. Pima Community College, 83 F.3d 1075, 1081–
82 (9th Cir. 1996) (“mere . . . speculation [does] not create a factual dispute for purposes
of summary judgment”) (citation omitted).
On this record, Defendants Shinn and Thornell cannot be liable in their individual
capacity for deliberate indifference to Plaintiff’s serious medical needs.6 Summary
judgment will be granted as to this claim in Count One.
ii. NP Thomas
Medical Defendants argue that Defendant Thomas was not deliberately indifferent
to Plaintiff’s serious medical need because she provided medically acceptable care based
on her diagnoses and Plaintiff’s “actual symptoms,” provided appropriate medications, and
submitted an outside consult when Plaintiff’s condition “actually worsened.” (Doc. 89 at
16.)
The evidence shows that, by the time Defendant NP Thomas saw Plaintiff in June
2021, Plaintiff had been submitting HNRs and been reporting sharp stomach and groin
6 In light of this finding, the Court need not address State Defendants’ argument for
qualified immunity as to Thornell. (See Doc. 58 at 13–14.)
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pain, hernia pain, severe pain, and painful urination for over a year. The Court infers that
NP Thomas was aware of Plaintiff’s HNRs and reports of pain. See Jett, 439 F.3d at 1094,
1097 (finding that as the party opposing summary judgment, the plaintiff was entitled to
an inference that the defendant prison doctor was aware of information in the plaintiff’s
medical record and aware of the medical slips the plaintiff continued to submit asking to
be sent to a specialist for treatment for a fractured thumb). In response this medical history,
and in response to Plaintiff’s new report of stabbing pain for the prior 6 months, NP
Thomas’s prescribed Prilosec and advised Plaintiff to avoid spicy food. (Doc. 87-1 at 23,
25.) Thereafter, Plaintiff continued to report sharp, stabbing, hernia pain, and that the
Prilosec provided no relief, but when NP Thomas saw Plaintiff for stomach pains and a
back injury in March 2022, NP Thomas did not address Plaintiff’s stomach pain. (Doc.
101-3 at 16–17; Doc. 87-4 at 10.) See Jett, 439 F.3d at 1096 (deliberate indifference shown
where an official fails to respond to a prisoner’s pain and the prisoner suffers harm as a
result).
Although Defendant NP Thomas did not see Plaintiff consistently, when she saw
him again in November 2022, it was evident from the medical records and Plaintiff’s
numerous HNRs that the conservative course of treatment Plaintiff had received for his
stomach and groin pain was not effective. See Jett, 439 F.3d at 1097. The parties dispute
the level of pain Plaintiff reported at this encounter. (Doc. 87-5 at 59; Doc. 108 ¶ 32.) The
Court must take as true on summary judgment Plaintiff’s assertion that his pain was
constant and so severe it interfered with sleep. (Doc. 108 ¶ 32.) Plaintiff’s 2020, 2021,
and 2022 medical records and HNRs—of which NP Thomas was aware—showed
complaints of severe stomach and groin pain for going on two years. The medical records
showed that Plaintiff’s treatment during this time included ibuprofen, Tylenol, Prilosec,
and other GERD medications and that these medications were ineffective. The records
also showed that labs and a KUB did not indicate a source of pain, but a July 2022 x-ray
documented an apparent left inguinal hernia. In response to this information, NP Thomas
made a list of differential diagnoses that did not include a hernia—she assessed possible
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IBS, gastritis, indigestion, or “malingering.” (Doc. 87-5 at 59.) NP Thomas’s treatment
plan for Plaintiff’s ongoing, severe, and constant pain was to continue with the same,
ineffective medications. (Id.) See Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994)
(“[a] jury could infer deliberate indifference from the fact that [the doctor] knew the extent
of [the prisoner’s] pain, knew that the course of treatment was largely ineffective, and
declined to do anything more to attempt to improve [the prisoner’s] situation”). It would
be another year before NP Thomas referred Plaintiff for hernia surgery.
Defendant NP Thomas’s treatment, which consisted primarily of monitoring,
prescribing some medications or maintaining Plaintiff’s current medications, and,
according to Plaintiff, advisements to meditate, may have been appropriate had Plaintiff
not been suffering ongoing and severe pain for years and if the medications had been
efficacious. To the extent Medical Defendants claim that Plaintiff’s pain was only
“general” and “intermittent,” that is a material fact disputed by Plaintiff. (Doc. 89 at 17.)
NP Thomas’s differential diagnosis of malingering—even after an ultrasound showed an
apparent hernia—suggests that NP Thomas did not take Plaintiff’s condition seriously and
disregarded his pain. George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 937–
38 (N.D. Cal. 2010) (“[s]uspicions of malingering may . . . be considered an indication of
an ulterior motive whereby a defendant failed to take a plaintiff’s condition seriously and
thus acted recklessly in failing to provide proper care”); see Egberto v. Nev. Dep’t of
Corrs., 678 F. App’x 500, 503 (9th Cir. Feb. 6, 2017) (the doctor’s challenge as to the
source and extent of the prisoner’s pain and the doctor’s opinion that the prisoner was
malingering “only creates a factual question for the jury to resolve”).
On this record, a reasonable jury could find that NP Thomas exhibited deliberate
indifference to Plaintiff’s serious medical needs. See Jett, 439 F.3d at 1096 (failure to
respond to a prisoner’s severe pain for months may amount to deliberate indifference);
Hathaway, 37 F.3d at 68.
As to the harm element, Plaintiff states that he suffered severe and constant pain for
years, and that his pain affected routine daily activities, including walking, running,
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coughing, urinating, and defecating. (Doc. 107 at 3, 8–9.) A reasonable jury could believe
Plaintiff’s allegations and find that he suffered harm as a result of Defendant NP Thomas’s
deliberate indifference. See Estelle, 429 U.S. at 103; McGuckin, 974 F.2d at 1060 (pain
and anguish suffered by prisoner constituted harm sufficient to support a § 1983 action).
Accordingly, Medical Defendants’ Motion for Summary Judgment will be denied as to the
individual capacity claim against NP Thomas in Count Three.
c. Policy Claim Against Centurion and NaphCare
To support a § 1983 claim against a private entity performing a traditional public
function, such as providing medical care to prisoners, a plaintiff must allege facts to support
that his constitutional rights were violated as a result of a policy, decision, or custom
promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d
1128, 1138–39 (9th Cir. 2012) (extending the “official policy” requirement for municipal
liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978),
to private entities acting under color of law). Under Monell, a plaintiff must show that (1)
he suffered a constitutional injury; (2) the entity had a policy or custom; (3) the policy or
custom amounted to deliberate indifference to the plaintiff’s constitutional right; and (4)
the policy or custom was the moving force behind the constitutional injury. See Monell,
436 U.S. at 691–94; Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d
1101, 1110–11 (9th Cir. 2001).
i. Constitutional Injury
Medical Defendants argue generally that Centurion and NaphCare staff “were
consistently responsive to Plaintiff’s needs, as evidenced by numerous evaluations,
imaging and labs, as well as a steady regimen of pain management[.]” (Doc. 89 at 15.)
Medical Defendants conclude that there is no evidence that Centurion or NaphCare staff
purposefully failed to respond to Plaintiff’s symptoms or withheld treatment. (Id.)
The Court has already determined there is a question of fact whether Defendant NP
Thomas exhibited deliberate indifference to Plaintiff’s serious medical need and caused
Plaintiff to suffer harm as a result.
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With respect to the conduct of other Centurion staff, the record shows that, despite
Plaintiff’s numerous HNRs reporting sharp and stabbing stomach and groin pain, severe
pain, and difficulty urinating, Plaintiff went for a year—January 2020–January 2021—
before he saw a Centurion provider. (See Doc. 108-5 at 9, 39; Doc 101-2 at 39; Doc. 101-
3 at 11; Doc. 101-6 at 34, 39; Doc. 108-3 at 11; Doc. 101-6 at 34; Doc. 87-2 at 3; Doc. 87-
1 at 3 (Jan. 20, 2021 encounter with NP Merriman).) He also went for weeks at a time
between HNRs without evidence he saw medical personnel, even when notations such as
NL or PL suggest he was to see a nurse or provider. Delays in treatment can constitute
deliberate indifference. See Wood, 900 F.2d at 1334
For the next almost two years, while Plaintiff continued to repeatedly seek care for
severe pain, Centurion treated Plaintiff with either nothing, advisements to “avoid further
trauma,” Roboxin and Prilosec, labs, and an x-ray and ultrasound. (See Doc. 87-1 at 5, 9,
16, 25, 28–29; Doc. 108-7 at 8; Doc. 101-4 at 39; Doc. 87-6 at 2–3; Doc. 108 32–33.) But
medical staff made no adjustments to Plaintiff’s treatment when the prescribed medications
proved ineffective. When NaphCare took over in November 2022, Plaintiff was prescribed
medications for GERD and suspected of malingering. (See Doc, 87-5 at 26, 59, 61.) As
stated, Plaintiff was not referred to a surgeon until October 2023. During this entire time,
Plaintiff suffered ongoing severe pain and difficulty urinating. On this record, a reasonable
jury could find that Medical Defendants failed to competently treat Plaintiff’s serious
medical need. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (“access
to medical staff is meaningless unless that staff is competent and can render competent
care”); Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (a prisoner does not have to
prove that he was completely denied medical care). Stocker v. Nevada, No. 3:23-cv-00634-
MMD-CLB, 2024 WL 4112299, at *3 (D. Nev. Aug. 12, 2024) (“if the prison’s medical
staff is not competent to examine, diagnose, and treat inmates’ medical problems, they
must ‘refer prisoners to others who can’”) (quoting Hoptowit, 682 F.2d at 1253).
Medical Defendants cite to cases holding that prison medical personnel did not act
with deliberate indifference when they provided medications, hernia belts, and monitoring
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in lieu of surgery for reducible hernias. (Doc. 89 at 17–18 n.3.) But they do not show that
any of the cases are analogous to the instant case; specifically, the cited cases do not involve
plaintiffs who suffered ongoing and severe pain and difficulty urinating for over a year
without relief from medications. The plaintiff in Hamby v. Hammond initially reported
sharp pains in certain circumstances but then rated his pain at 3/10 and “random.” 821
F.3d 1085, 1988 (9th Cir. 2016). The record showed that the plaintiff’s activities of daily
living were not impaired, he did not have continual pain, and his hernia pain subsided for
several months. Id. at 1089–90. In Brown v. Beard, the Third Circuit found that the
prison’s treatment for the plaintiff’s hernia was at worst negligent, and there is no record
showing that the plaintiff was in pain, much less severe pain, for a long period time. 445
F. App’x 453, 455 (3d Cir. 2011). In Webb v. Hamidullah, the plaintiff made numerous
complaints of pain; however, the Fourth Circuit found that his complaints focused largely
on work assignments, that prison medical staff did not ignore his complaints, and that
medical staff monitored his hernia. 281 F. App’x 159, 162–63 (4th Cir. 2008).7 In
Anderson v. Bales, the Seventh Circuit found that the plaintiff failed to present evidence
challenging the prison doctor’s judgment that his hernia could not be treated adequately
with non-surgical measures. 2013 WL 1278122, at *1 (7th Cir. 2013). There is no
indication that the plaintiff in Anderson suffered pain for an extended period of time. See
id. And in Rossi v. Nevada Department of Corrections, the Ninth Circuit held that the
plaintiff failed to raise a genuine issue of material fact as to whether the prison disregarded
a serious risk to his health. 390 F. App’x 719, at *1 (9th Cir. Aug. 2, 2010). There is no
indication that the plaintiff in Rossie suffered pain for an extended period of time. See id.
Contrary to these cases, Plaintiff suffered severe pain from 2020 through 2023 without any
relief from medications. (See Doc. 107 at 3.) The cited case law therefore does not support
7 Notably, in Webb, the prison sent the plaintiff to two different surgeons, who both
recommended hernia surgery, but the prison determined that surgery was elective and not
urgent. 281 F. App’x 159, 162–63. In the Ninth Circuit, such facts may support a disputed
factual issue regarding deliberate indifference because failure to comply with a treating
specialist’s recommendations can amount to deliberate indifference. See Colwell v.
Bannister, 763 F.3d 1060, 1069 (9th Cir. 2014).
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Medical Defendants’ Motion.
In sum, there are genuine issues of material fact whether the delays in care in treating
Plaintiff’s severe pain and the lack of effective treatment over time amounted to deliberate
indifference, and whether Plaintiff suffered harm as a result. Thus, the first element in the
Monell test is satisfied.
ii. Policy or Custom
A policy is “a deliberate choice to follow a course of action” made by the officials
or entity “responsible for establishing final policy with respect to the subject matter in
question.” Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992). A policy can be one of
action or inaction. Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). A “custom”
for purposes of municipal liability is a “widespread practice that, although not authorized
by written law or express municipal policy, is so permanent and well-settled as to constitute
a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
“Liability for improper custom may not be predicated on isolated or sporadic incidents; it
must be founded upon practices of sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99
F.3d 911, 918 (9th Cir. 1996). While one or two incidents are insufficient to establish a
custom or practice, the Ninth Circuit has not established what number of similar incidents
would be sufficient to constitute a custom or policy. See Oyenik v. Corizon Health Inc.,
No. 15-16850, 2017 WL 2628901, at *2 (9th Cir. June 19, 2017) (a reasonable jury could
conclude that at least a dozen instances of defendant Corizon denying or delaying
consultations and radiation treatment for cancer patient over a year amount to a custom or
practice of deliberate indifference) (citing Oviatt, 954 F.2d at 1478). But “[t]here is no
case law indicating that a custom cannot be inferred from a pattern of behavior toward a
single individual.” Id. Whether actions by entity officers or employees amount to a custom
“depends on such factors as how longstanding the practice is, the number and percentage
of officials engaged in the practice, and the gravity of the conduct.” Mi Pueblo San Jose,
Inc. v. City of Oakland, C-06-4094 VRW, 2006 WL 2850016, at *4 (N.D. Cal. Oct. 4,
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2006).
Defendants contend there is no evidence of a policy or custom to deny care and no
evidence that medical staff’s decisions regarding Plaintiff’s care were based on any
Centurion or NaphCare policy or custom to deny or delay medically needed surgery for
hernias. (Doc. 89 at 19.)
As mentioned, Plaintiff began requesting medical care in January 2020 and filed
numerous HNRs describing sharp, stabbing stomach and groin pain and painful urination.
The evidence shows that multiple different nurses repeatedly referred Plaintiff to the
provider line, but he did not see a provider until January 2021. Defendant Centurion
presents no explanation for this substantial delay in seeing a provider. A reasonable jury
could find that this year long period of repeated, unheeded referrals to a provider
constituted a policy or custom to delay care. See Oyenik, 2017 WL 2628901, at *2.
Once Plaintiff was able to see different providers, they provided ineffective
treatment—or no treatment at all—in response to Plaintiff’s severe pain and hernia
symptoms. The Court has already determined there are triable issues of fact whether the
delays in care and ineffective treatment by Centurion and then NaphCare providers
constituted deliberate indifference. The failures to adequately address Plaintiff’s pain and
hernia symptoms did not result from the actions of just NP Thomas; rather, they occurred
over time and involved multiple Centurion and NaphCare providers, which supports a
finding of a policy. See Henry v. Cnty. of Shasta, 132 F.3d 512, 521 (9th Cir. 1997) (finding
a policy more likely where multiple employees were involved in the constitutional
violation).
Finally, Plaintiff stated that, in 2021, when Plaintiff requested a consult for his
hernia symptoms, NP Merriman informed him that Centurion would not approve anything.
(Doc. 101-2 at 43.) Plaintiff stated that NP Thomas later informed him that NaphCare
considers surgery for reducible hernias to be elective regardless of symptoms; thus,
NaphCare would not approve a consult or surgery unless there was an emergency. (Doc.
108 46.) In his verified Memorandum, Plaintiff avers that, in addition to NPs Merriman
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and Thomas, NPs Gay, Weigel, and Ortiz advised him that Centurion and NaphCare’s
practice and unwritten policy was to delay or deny procedures and specialist consults
because hernia surgery is considered elective. (Doc. 107 at 5.) Plaintiff further averred
that all NPs informed him that any requests/consults are reviewed by someone who has
never evaluated Plaintiff and they will always recommend alternative treatment. (Id.)
These statements support that the providers were acting pursuant to policy when they
refused to make referrals for a surgery consult for Plaintiff despite his pain and hernia
symptoms.
In light of the above, there are genuine issues of material fact whether Defendants
Centurion and NaphCare had policies or customs to delay adequate treatment for serious
medical needs and to delay surgery referrals.
iii. Deliberately Indifferent Policy/Moving Force
To establish that a policy or custom is the “moving force” behind a constitutional
violation, a plaintiff must demonstrate a direct causal link between the policy or custom
and the constitutional deprivation. See Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v.
Brown, 520 U.S. 397, 404 (1997). Medical Defendants argue Plaintiff cannot establish the
“moving force” element because there was no deliberately indifferent treatment by medical
staff. (See Doc. 89 at 19.)
The Court has already found genuine issues of material fact whether medical staff
acted with deliberate indifference to Plaintiff’s serious medical need and whether there
existed a policy or custom of delaying adequate treatment and surgery referrals for a serious
medical need. An obvious consequence of such policies or customs may be the denial of
constitutionally adequate medical care. On this basis alone, the moving-force element is
satisfied. See Brown, 520 U.S. at 405 (“the conclusion that the action taken or directed by
the [entity] . . . itself violates federal law will also determine that the [entity] action was
the moving force behind the injury of which the plaintiff complains”).
Based on the above, there exists questions of fact whether Defendants Centurion
and NaphCare had deliberately indifferent policies or customs that deprived Plaintiff of his
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constitutional right to adequate medical care. Summary judgment will be denied as to the
policy claims against Defendants Centurion and NaphCare on Count One.
d. Official Capacity Claim Against Thornell
Because Naphcare is not entitled to summary judgment for its allegedly deliberately
indifferent medical care as ADCRR’s current contracted healthcare provider, and the
ADCRR Director is the state official charged with caring for prisoners’ needs under
Arizona law, Ariz. Rev. Stat. § 41-1604, the Court will also deny summary judgment to
Defendant Thornell in his official capacity for purposes of any potential injunctive relief.
Plaintiff’s official capacity claim against Thornell is, in effect, a claim against the State,
which has Eleventh Amendment immunity, so Plaintiff is not entitled to damages on this
claim. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). State officials may, however, be sued in their
official capacities for prospective injunctive relief because “official-capacity actions for
prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473
U.S. 159, 166 (1985), 473 U.S., 159, 167, n.14 (1985) (citing Ex Parte Young, 209 U.S.
123 (1908)); Flint v. Dennison, 488 F.3d. 816, 825 (9th Cir. 2007) (“a suit for prospective
injunctive relief provides a narrow, but well-established, exception to Eleventh
Amendment immunity”).
e. Injunctive Relief
Medical Defendants argue there is no basis for injunctive relief because Plaintiff
already saw a gastroenterologist, and he received hernia surgery on January 24, 2024.
(Doc. 89 at 20.)
Plaintiff has not been released from custody and remains reliant on Defendant
NaphCare for his medical care. In his November 2025 Response Memorandum, Plaintiff
indicated that he was experiencing stomach pain. (Doc. 107 at 12.) Because summary
judgment is denied herein as to the policy claim against NaphCare, and because the briefing
is insufficient to show Plaintiff’s current condition and NaphCare’s current conduct,
Plaintiff’s request for injunctive relief is not moot. See Farmer, 511 U.S. at 828 (whether
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injunctive relief is appropriate “should be determined in light of the prison authorities’
current attitudes and conduct”) (internal quotation omitted). Medical Defendants’ request
to dismiss the request for injunctive relief is denied.
f. Punitive Damages
Medical Defendants argue summary judgment is warranted on Plaintiff’s request
for punitive damages because the circumstances do not warrant it. (Doc. 89 at 20.)
A request for punitive damages is not a separate claim, but rather a request for a
particular relief as to Plaintiff’s Eighth Amendment claim. Whether punitive damages are
warranted is an issue reserved for the jury. See Pacific Mut. Life Ins. Co. v. Haslip, 111
U.S. 1, 16 (1991) (noting that, with respect to punitive damages, “[t]his has been always
left to the discretion of the jury, as the degree of punishment to be thus inflicted must
depend on the peculiar circumstances of each case”) (quotation omitted); Smith v. Wade,
461 U.S. 30, 48, 54, 56 (1983) (“punitive damages are awarded in the jury’s discretion”).
A jury may assess punitive damages in a § 1983 action when a defendant’s conduct “is
shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Smith, 461 U.S. at 56.
A reasonable jury could conclude that conduct by Medical Defendants was
motivated by a “reckless or callous indifference to the federally protected rights of”
Plaintiff, thereby warranting punitive damages. Id. The request for summary judgment as
to punitive damages will therefore be denied.
B. Count Two-Conditions of Confinement
1. Legal Standard
The Eighth Amendment protects prisoners from inhumane conditions of
confinement. Farmer, 511 U.S. at 833; Thomas v. Ponder, 611 F.3d 1144, 1151–52 (9th
Cir. 2010); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010). Prison officials have
a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation,
medical care, and personal safety. See Farmer, 511 U.S. 825.
Two requirements must be met to show an Eighth Amendment violation. Farmer,
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511 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious.” Id.
(internal quotation marks and citation omitted). The circumstances, nature, and duration
of the deprivations are critical in determining whether the conditions complained of are
grave enough to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis,
217 F.3d 726, 731 (9th Cir. 2006). Exposure to toxic substances can support a claim under
§ 1983. See Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir. 1995) (exposure to
asbestos); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992) (exposure to
environmental tobacco smoke).
Second, “prison officials must have a sufficiently culpable state of mind,” which for
conditions of confinement claims, “is one of deliberate indifference.” Farmer, 511 U.S. at
834 (internal quotation marks and citation omitted). Prison officials act with deliberate
indifference when they know of and disregard an excessive risk to prisoner health or safety.
Id. at 837.
2. Discussion
State Defendants do not present any argument as to whether the drinking water at
Plaintiff’s Unit was tainted or toxic such that it constituted an objectively, sufficiently
serious deprivation. (See Doc. 58.) Instead, State Defendants argue that Plaintiff cannot
satisfy the second prong in the deliberate indifference analysis because he cannot show that
Defendants Bowers and Malone were subjectively aware of the serious risk to Plaintiff’s
health. (Id. at 10–11.) Plaintiff contends that Defendants Bowers and Malone were put on
notice of chemicals in the water through his letters, grievances, and HNRs. (Doc. 103 at
9–10.)
As stated, in September 2023, Plaintiff filed a grievance complaining that the toxic
or contaminated water at his Unit caused his medical issues. (Doc. 59-3 at 6.) In her
Grievance Appeal Response, Defendant Bowers informed Plaintiff that he presented no
evidence to support the claim that water at the unit was unsuitable for drinking and that
Defendant Malone, the Assistant Director for Prison Operations, had not responded to
Plaintiff’s request to purchase a water purifier. (Id. at 3.) Bowers also informed Plaintiff
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that his complaint was forwarded to the Assistant Director for Facilities to address
questions regarding the plumbing and water filtration at Eyman Complex. (Id.)
Defendant Bowers’ response is insufficient to show that she was aware of toxic or
contaminated water at Plaintiff’s Unit. As she wrote, there was no evidence to show that
the water was contaminated. As a non-medical official who worked as the appeals
Administrator, Defendant Bowers would not have had access to Plaintiff’s medical HNRs,
so she was not on notice of Plaintiff’s health issues, nor was she trained or in a position to
infer that Plaintiff’s health issues were caused by the Unit’s drinking water.
As to Defendant Malone, the grievance documents show only that he was sent an
inquiry regarding Plaintiff’s request to purchase a water purifier. There is no evidence
Malone received this request. But even assuming that he did, there is no evidence that the
request contained sufficient information that would have put him on notice that
contaminated water caused Plaintiff’s serious health issues. Like Bowers, Malone was a
non-medical official and did not review prisoner HNRs, so he was not on notice of
Plaintiff’s health issues.
In support of their Motion, State Defendants submit Plaintiff’s deposition testimony,
in which he was asked whether Defendants were aware of the situation with Plaintiff’s
stomach issues and the bad water. (Doc. 59-8 at 9–10; Pl. Dep. 80:23–25.) Plaintiff
responded, “I’m not sure if they were aware or not, but I mean, they could have been aware
or they couldn’t have. I can’t tell you. You know what I mean? Because I don’t know
that. I wrote them the grievance.” (Id. at 10, 81:1–4.) Plaintiff’s speculation as to whether
Bowers and Malone were aware of contaminated water and Plaintiff’s stomach issues is
insufficient to create a material fact on the subjective prong of his conditions-of-
confinement claim. See Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir. 2004)
(speculation as to a defendant’s subjective knowledge does not create a factual dispute on
summary judgment). Accordingly, State Defendants’ Motion will be granted as to the
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Eighth Amendment conditions-of-confinement claim in Count Two.8
Based on the foregoing,
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to State Defendants’
Motion for Summary Judgment (Doc. 58) and Medical Defendants’ Motion for Summary
Judgment (Doc. 89).
(2) State Defendants’ Motion for Summary Judgment (Doc. 58) is granted in
part and denied in part as follows:
(a) the Motion is granted as to the claims against Shinn, Bowers, and
Malone in Counts One and Two;
(b) the Motion is denied as to the issue of exhaustion; and
(c) the Motion is denied as to the official policy claim against Thornell
in Count One.
(3) Medical Defendants’ Motion for Summary Judgment (Doc. 89) is denied.
(4) Count Two is dismissed.
(5) Shinn, Bowers, and Malone are dismissed as Defendants.
(6) The remaining claims are the Eighth Amendment medical care policy claims
against Centurion and NaphCare in Count One, the official capacity claim against Thornell
in Count One, and the Eighth Amendment medical care claim against NP Thomas in her
individual capacity in Count Three.
(7) This action is referred to Magistrate Judge Bachus to conduct a settlement
conference.
/ / /
/ / /
/ / /
/ / /
8 In light of this finding, the Court need not address State Defendants’ argument for
qualified immunity as to Bowers and Malone. (See Doc. 58 at 14–15.)
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(8) Defense counsel shall arrange for the relevant parties to jointly call the
chambers of Magistrate Judge Bachus at (602) 322-7610 within 14 days to schedule a date
for the settlement conference.
Dated this 19th day of March, 2026.
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