Carson #091914 v. Ryan et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Phillip Lee Carson,
Plaintiff,
v.
Charles L. Ryan, et al.,
Defendants.
No. CV 20-00196 PHX DWL (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA
I. Background
Plaintiff, proceeding pro se, filed a prisoner civil rights complaint on January 27,
2020, and the case was assigned to District Judge Roslyn O. Silver. (ECF No. 1). The
Complaint was dismissed on May 18, 2020, with leave to amend, for Plaintiff’s failure to
comply with the page limit stated at then-Rule 3.4 of the Local Rules of Civil Procedure.
(ECF No. 7). Plaintiff filed a first amended complaint on July 23, 2020. (ECF No. 14). On
October 30, 2020, the first amended complaint was dismissed, with leave to amend, for
Plaintiff’s failure to comply with then-Rule 3.4 of the Local Rules and Rules 8 and 10 of
the Federal Rules of Civil Procedure. (ECF No. 15).
Plaintiff filed a second amended complaint on November 13, 2020. (ECF No. 16).
In an order entered December 11, 2020, the Court screened Plaintiff’s Second Amended
Complaint The Court described the factual background for Plaintiff’s claims presented in
the Second Amended Complaint, as relevant herein, as follows:
… Plaintiff alleges that on January 27, 2018, he was called to the
medical department for a routine blood pressure check. A nurse told Plaintiff
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to sit on a specific chair. The chair immediately collapsed under Plaintiff
when he sat down, and he fell to the ground. Plaintiff hit the back of his head
and his tailbone and injured his back. Plaintiff’s blood pressure rose to
210/115 due to the shock and pain. An emergency Incident Command
System (ICS) was activated. Defendant Babeu started filming Plaintiff while
he was on the ground, and Defendant Wilson “helped” Plaintiff while nurses
examined him. After Plaintiff was treated, he was moved to the lobby, where
prisoner health aides and wheelchair pushers advised him that they had
informed Defendants Kranich, Parks, Sestiaga, and Ortiz weeks earlier that
the chair was “dangerously dilapidated.” Despite this, security and nurses
“knowingly/deliberately” left the dilapidated chair in the medical
department.
Plaintiff alleges that security and nurses failed to protect him although
they knew the chair was broken. Plaintiff asserts Defendants Kranich, Parks,
Sestiaga, and Ortiz should have removed the chair from the medical
department, submitted a work order to repair it, or at least informed Plaintiff
that it was dilapidated before he was directed to sit on it. Plaintiff claims
Defendants Kranich, Parks, Sestiaga, and Ortiz each told him that they did
not “want to discuss [the] issue.”
Plaintiff alleges he suffered the wanton infliction of serious pain, and
he has been confined to a wheelchair and must use a cane as a result of his
injuries. Plaintiff still goes to therapy to reduce his pain and try to walk
normally again. Plaintiff cannot complete his activities of daily living
without an aide’s assistance. He gets “horrible” migraines daily, and his
back/sciatica spasm make him unable to even sit up.
… Plaintiff alleges that on January 27, 2018, after he was injured
when the chair collapsed underneath him, Defendant Babeu took video
footage and still photos of Plaintiff, his injuries, and the broken chair.
Defendant Bowers was the supervising officer on scene during the
emergency ICS, and she secured the chair for evidence. Plaintiff advised
Defendants Babeu and Bowers that he wanted the chair held “for [a] possible
lawsuit” if he was “really hurt,” to determine if the chair was defective.
Defendants Babeu and Bowers assured Plaintiff that the chair would be held.
Several other prisoners who worked as Health Unit aides and
wheelchair pushers witnessed the collapse of the chair and Plaintiff’s fall,
and they also “had personal knowledge” that the chair was falling apart
several weeks before Plaintiff’s fall because they had “experienced its
condition when they had sat on it” weeks earlier. The prisoners told Plaintiff
that they had informed Defendants Babeu and Bowers, as well as Health Unit
security and nurses, about the chair. Plaintiff requested that Defendants
Babeu and Bowers document the prisoners’ statements in their report of the
fall, but they said that there was no proof that the other prisoners had advised
medical staff and security that the chair was falling apart and dangerous
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weeks earlier. Plaintiff responded, “that[’]s why you put the information in
your [Incident Report], so the evidence can be investigated.” Defendants
Babeu and Bowers both said “NO!” and “if you don’t like it[,] ‘write it up’
and sue us.”
***
… Plaintiff alleges that on January 27, 2018, Defendants Bowers and
Babeu “denied” Plaintiff’s witness statements, which were favorable to
Plaintiff’s claim that government agents who had authority over Plaintiff
were advised by several other prisoners that medical equipment was
dilapidated and dangerous to prisoners weeks before Plaintiff’s fall. …
***
… Plaintiff alleges that shortly after his fall on January 27, 2018, he
asked Defendant Sestiaga for a copy of the medical staff’s daily equipment
inspection sheets or logs. Defendant Sestiaga told Plaintiff that neither
Corizon nor ADC had such forms for her to use and that she would not
“discuss it” with Plaintiff. Plaintiff also asked “the same questions” to
Defendant Kranich, and Kranich stated she did not know of any such forms
and told him, “that[’]s enough[,] go away.” Defendants Parks and Ortiz also
told Plaintiff that they had no knowledge of daily inspection logs of medical
equipment.
***
… Plaintiff alleges that after his fall on January 27, 2018, he was sent
to a specialist and underwent physical therapy for six to eight weeks. The
specialist “requested” that Plaintiff continue therapy for another six to eight
weeks and “certified it” as a “medical necessity.” Plaintiff’s provider at the
prison agreed with the specialist that Plaintiff should receive additional
physical therapy for his injuries. Specifically, non-party NP Thomas
requested that the specialist who treated Plaintiff continue the physical
therapy “due to its medical necessity.” Despite the specialist’s
recommendation, Defendants Corizon Agents denied NP Thomas’s request
for physical therapy. Plaintiff “got worse” without the physical therapy.
Centurion took over medical care for ADC in July 2019, and
sometime thereafter, a Centurion Agent apparently denied another provider
request for physical therapy. Plaintiff “personally notified” Defendant Ryan
and Deputy Director Pratt that physical therapy was medically necessary
[footnote 5: Plaintiff also alleges that Defendant Ryan and Deputy Director
Pratt were “personally notified” by the Prison Law Office, counsel for the
plaintiffs in Parsons v. Ryan, CV 12-00601-PHX-ROS (D. Ariz.), that
physical therapy was medically necessary.], but Defendant Ryan and Deputy
Director Pratt both denied the physical therapy.
***
… Plaintiff alleges that he suffers from mental illnesses, including,
but not limited to, post-traumatic stress disorder, bipolar disorder, and
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depression. Plaintiff has a history of violence, including assault, self-
mutilation, and murder. Plaintiff’s psychiatrist prescribed an antidepressant,
Wellbutrin, which allows Plaintiff to function at a higher level and control
his anger and thoughts of suicide and self-harm, such as cutting himself and
fighting with others. On June 9, 2019, Defendants Corizon Agents “denied”
Plaintiff his prescribed Wellbutrin. Corizon nurses who were distributing
medication advised Plaintiff that they had notified the pharmacy that the
medication was missing and that Plaintiff’s prescription was current.
Plaintiff immediately advised Defendant Demery and ADC about the
missing Wellbutrin and that he did not “want to suffer” depression and/or act
out violently. Between June 9 and 14, 2019, the Corizon medical unit
“refused” to provide Plaintiff with Wellbutrin, and the pharmacy “refused”
to send another bottle or package of Wellbutrin. Without the medication,
Plaintiff began to “panic and bec[a]me a security risk” by arguing with non-
party Sergeant Sweetman, who Plaintiff believed had a knife in his boot and
was going to attack him. Defendant Willis had to intervene. Plaintiff also
reported an inability to sleep for days.
ADC Security “finally spoke with” medical staff, and Plaintiff was
advised that Corizon was going to give him the Wellbutrin. Plaintiff did not
receive Wellbutrin for the following two days. On June 16, 2019, Plaintiff
became paranoid and aggressively “manic.” That day, Corizon staff drove to
an offsite pharmacy and bought Wellbutrin for Plaintiff. Plaintiff alleges that
he experienced mental and physical pain and suffering for nine days because
he did not have his medication. Plaintiff claims he suffered depression,
difficulty sleeping, panic attacks, … biting his lips, stress sores in his mouth,
hallucinations, and high blood pressure.
Plaintiff also asserts that between May 23 and October 23, 2019,
Defendant Weigel “denied” Plaintiff his noontime pain medication,
gabapentin. Plaintiff requested alternative pain medication, but Weigel
refused. On July 25, 2019, NP Thomas, Plaintiff’s primary provider,
reordered the gabapentin, but Defendants Centurion Agents “refused”
Thomas’s orders. Plaintiff alleges that Defendants Weigel and Centurion
Agents were deliberately indifferent by denying him pain medication for the
back injury he suffered in the January 27, 2018 fall. Plaintiff asserts he did
not receive the pain medication for five months and was not given a substitute
medication.
(ECF No. 18 at 4-10).
On December 11, 2020, the Court dismissed Counts 1 through 4, 6 through 8, and
10, without prejudice, and dismissed Plaintiff’s claim for monetary relief in Count 9. The
Court dismissed as defendants Ryan, Bowers, Marsh, Kranich, Parks, Dison, Sestiaga,
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Ortiz, Weigel, Maldonado, Centurion Vice President of Operations, Demery, Glynn,
Herman, Kepney, ADC Agents A-Z, Corizon Health Agents A-Z, Centurion Health Agents
A-Z, and Albi Fixtures/Furniture Agents A-Z. The Court ordered Defendants Babeau, Rice,
Lathers, and Willis to answer Count 5 (an Eighth Amendment threat-to-safety claim), and
ordered Defendant Shinn, in his official capacity, to answer the claim for injunctive relief
stated in Count 9 (stating claims pursuant to the First Amendment and Religious Land Use
and Institutionalized Persons Act). (ECF No. 18 at 25-26).
On December 20, 2020, Plaintiff sought reconsideration of the order dismissing
Court dismissed Counts 1 through 4, 6 through 8, and 10. (ECF No. 20). The motion was
denied on March 16, 2021. (ECF No. 43). Plaintiff filed an interlocutory appeal regarding,
inter alia, denial of the motion for reconsideration, to the Ninth Circuit Court of Appeals
(ECF No. 146), which was dismissed on October 8, 2021 (ECF No. 162).
A scheduling order issued February 16, 2021, provided: “Any motion to join parties
or for leave to amend the pleadings, including any motion to further amend the complaint,
shall be filed no later than April 16, 2021.” (ECF No. 33) (emphasis in original). Plaintiff
did not seek to further amend the operative complaint.
On November 12, 2021, Defendant Lathers was dismissed for Plaintiff’s failure to
serve this defendant. (ECF No. 179). In an order entered August 5, 2022, the Court granted
Defendants Babeau, Rice, and Willis’s motion for summary judgment. (ECF No. 258).
In an order entered March 7, 2023, the Court dismissed the remaining claim, against
Defendant Shinn, as moot. (ECF No. 316). The case was dismissed on March 7, 2023.
(ECF No. 317).
Plaintiff appealed to the Ninth Circuit Court of Appeals on March 17, 2023. (ECF
No. 323).
In a decision filed March 24, 2025, the Ninth Circuit Court of Appeals found and
concluded that the Court “properly dismissed Carson’s failure-to-protect; due process; and
deliberate indifference claims (Claims 1, 2, 4, 6, 7),” as stated in the Second Amended
Complaint, and “properly dismissed Carson’s access-to-courts claim (Claim 3) because
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Carson failed to allege facts sufficient to establish standing.” (ECF No. 339-1 at 3). The
Ninth Circuit further found the Court properly granted summary judgment on Count 5, and
that the Court properly dismissed Plaintiff’s claims in Count 9 of the Second Amended
Complaint. (ECF No. 339-1 at 2-3). However, the Ninth Circuit Court of Appeals
concluded that the Court’s dismissal of Counts 1, 4, 6, and 7 without leave to amend was
premature because it was not “absolutely clear” that any deficiencies could not be cured by
amendment. (ECF No. 339-1 at 3).1 The appellate court also concluded: “The district court
erred in dismissing Carson’s Free Exercise Clause and RLUIPA claims,” i.e., Counts 8
and 10 of the Second Amended Complaint, concluding Carson alleged sufficient facts
supporting a reasonable inference that Defendants substantially burdened Carson’s practice
of religion. (ECF No. 339-1 at 4). The Ninth Circuit denied relief on all of the other claims
raised in Carson’s appeal.
Per the Court’s order at ECF No. 340, regarding the Ninth Circuit’s remand,
Plaintiff was specifically given leave to amend Counts 1, 4, 6, and 7, of his Second
Amended Complaint only to cure the deficiencies noted in the order at ECF No. 18.
Plaintiff was given leave to proceed on Counts 8 and 10 of the Second Amended Complaint
at ECF No. 16. Accordingly, on July 7, 2025, the Clerk of the Court was directed to provide
Plaintiff with a blank prisoner civil rights complaint, a copy of Plaintiff’s Second Amended
Complaint, and a copy of the order at ECF No. 18. (ECF No. 341). Plaintiff was allowed
to file a Third Amended Complaint which included only Counts 1, 4, 6, 7, 8, and 10 of his
Second Amended Complaint, and which amended only Counts 1, 4, 6, and 7 of his Second
Amended Complaint. (Id.). Plaintiff was given leave to amend Counts 1, 4, 6, and 7 “solely
to add additional factual allegations to cure the deficiencies noted in the Order at ECF No.
18.” (Id.) (emphasis in original). The order stated: “The Third Amended Complaint shall
1 It is noted that the Court’s screening order at ECF No. 18 states: “(1) Counts One through
Four, Six through Eight, and Ten are dismissed without prejudice. Plaintiff’s claim for monetary
relief in Count Nine is dismissed without prejudice.” (emphasis added). The order did not
specifically deny or grant leave to amend. The order was supplied to the Ninth Circuit Court of
Appeals on April 22, 2024. See Carson v. Ryan, et al., Ninth Circuit Court of Appeals Case No.
23-15410, at Dkt. No. 61-1.
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restate Count 8 and Count 10 exactly as stated in Plaintiff’s Second Amended Complaint.
Plaintiff may not use the Third Amended Complaint to add additional Defendants or
additional claims for relief.” (Id.) (emphasis in original).
Plaintiff docketed a Third Amended Complaint on August 20, 2025. (ECF No. 351).
Defendants filed a motion to dismiss Count 8 (the RLUIPA claim) (ECF No. 373 &
ECF No. 376) and Count 10 (ECF No. 363) of the Third Amended Complaint.
This case was reassigned to the Honorable Dominic W. Lanza on October 15, 2025.
(ECF No. 387).
The issue presently before the Court is whether Plaintiff has sufficiently amended
his claims with regard to Count 1, 4, 6, and 7, such that he should be allowed to proceed
with these claims.
II. Governing Law
The Prison Litigation Reform Act requires the screening of prisoner complaints and
the dismissal of allegations that fail to adequately state a claim for relief.
28 U.S.C. § 1915A(a). A plaintiff should be given leave to amend their complaint when
justice so requires. Fed. R. Civ. P. 15(a). Futility of amendment is sufficient to justify denial
of leave to amend. See, e.g., Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir.
2010). A proposed amendment is futile if, accepting all of the facts alleged as true, the
amended claim would be immediately “subject to dismissal” for failure to state a claim on
which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).
Granting or denying leave to amend is a matter committed to the Court’s discretion. E.g.,
Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013).
The Court is obliged to liberally construe an incarcerated pro se plaintiff’s
complaint. See, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, although
pro se pleadings are liberally construed, conclusory and vague allegations will not support
a cause of action. E.g., Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Furthermore, a liberal interpretation of a civil rights complaint may not supply essential
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elements of the claim, Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), cited in
Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022), and the Court should not assume
the plaintiff “can prove facts different from those alleged in the complaint,” McGrath v.
Scott, 250 F. Supp. 2d 1218, 1220 (D. Ariz. 2003). Additionally, “legal conclusions
couched as factual allegations are not given a presumption of truthfulness and conclusory
allegations of law and unwarranted inferences are not sufficient” to state a claim for relief.
McGrath, 250 F. Supp. 2d at 1220 (internal quotations omitted).
To sufficiently state a claim under § 1983 the plaintiff must link the named
defendants to participation in the violation at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676-
77 (2009); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.
Williams, 297 F.3d 930, 934-35 (9th Cir. 2002). Liability may not be imposed on
supervisory personnel under the theory of respondeat superior. Iqbal, 556 U.S. at 675-76;
Ewing, 588 F.3d at 1235. Administrators may only be held liable if they “participated in or
directed the violations, or knew of the violations and failed to act to prevent them.” Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Simply naming an individual as a defendant,
or broadly alleging they had “knowledge” of a particular event or situation is insufficient
to hold them liable based on a position of authority; the plaintiff must allege specific facts
linking each named defendant to acts or omissions, sufficient to support a conclusion that
the defendant participated or directed the violations, or knew of the violations and failed to
prevent them. Iqbal, 556 U.S. at 676; Ewing, 588 F.3d at 1235.
Notably, an allegation that a defendant violated a state prison rule or regulation,
without more, is not sufficient to state a § 1983 claim. See Ove v. Gwinn, 264 F.3d 817,
824 (9th Cir. 2001); Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997).
Only if the events complained of rise to the level of a constitutional violation, rather than
a regulatory violation, may the plaintiff proceed on a claim pursuant to § 1983. E.g., Patel,
648 F.3d at 971; Jones, 297 F.3d at 934.
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III. Analysis of Third Amended Complaint
A. Count 1
In the screening order at ECF No. 18 the Court construed Count 1 of the Second
Amended Complaint, a “failure to protect” claim, as follows:
In Count One, Plaintiff alleges that on January 27, 2018, he was called
to the medical department for a routine blood pressure check. A nurse told
Plaintiff to sit on a specific chair. The chair immediately collapsed under
Plaintiff when he sat down, and he fell to the ground. Plaintiff hit the back of
his head and his tailbone and injured his back. Plaintiff’s blood pressure rose
to 210/115 due to the shock and pain. An emergency Incident Command
System (ICS) was activated. Defendant Babeu started filming Plaintiff while
he was on the ground, and Defendant Wilson “helped” Plaintiff while nurses
examined him. After Plaintiff was treated, he was moved to the lobby, where
prisoner health aides and wheelchair pushers advised him that they had
informed Defendants Kranich, Parks, Sestiaga, and Ortiz weeks earlier that
the chair was “dangerously dilapidated.” Despite this, security and nurses
“knowingly/deliberately” left the dilapidated chair in the medical
department.
Plaintiff alleges that security and nurses failed to protect him although
they knew the chair was broken. Plaintiff asserts Defendants Kranich, Parks,
Sestiaga, and Ortiz should have removed the chair from the medical
department, submitted a work order to repair it, or at least informed Plaintiff
that it was dilapidated before he was directed to sit on it. Plaintiff claims
Defendants Kranich, Parks, Sestiaga, and Ortiz each told him that they did
not “want to discuss [the] issue.”
Plaintiff alleges he suffered the wanton infliction of serious pain, and
he has been confined to a wheelchair and must use a cane as a result of his
injuries. Plaintiff still goes to therapy to reduce his pain and try to walk
normally again. Plaintiff cannot complete his activities of daily living
without an aide’s assistance. He gets “horrible” migraines daily, and his
back/sciatica spasm make him unable to even sit up.
(ECF No. 18 at 4).
In his Second Amended Complaint Plaintiff alleged that shortly after the incident
on January 27, 2018, “Prisoner Health Aides and wheelchair pushers advised [Plaintiff] (in
the presence of security) that medical staff,” i.e., Kranich, Parks, Sestiaga, and Ortiz, “were
informed by [the aides and pushers] that the chair that broke under [Plaintiff] was
dangerously dilapidated (weeks before [Plaintiff sat on it], thus liable.” (ECF No. 16 at 10).
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Plaintiff alleged that prisoner health aides and “wheelchair pushers” “signed declarations”
“stating that the above staff were each advised about said chair by them …” (ECF No. 16
at 5).
The Court concluded:
Plaintiff’s allegations in Count One are too vague and conclusory to
support a conclusion that any named Defendant was aware of and
disregarded a substantial risk of serious harm to Plaintiff’s safety. Plaintiff
alleges that Defendants Kranich, Parks, Sestiaga, and Ortiz knew the chair
was dilapidated weeks before he sat on it, but he does not specify how any
Defendant knew the chair was dilapidated or, even if they did, that any
Defendant knew or had reason to know that the chair posed a substantial risk
of serious harm to Plaintiff. Plaintiff has failed to state a threat-to-safety
claim in Count One, and this claim will therefore be dismissed.
(ECF No. 18 at 14-15).
In his Third Amended Complaint Plaintiff asserts that Kranich, Parks, Sestiaga, and
Ortiz were told by “Health Dept. Aides on Cook Unit” (later identified as “Queen and
Calaway”) in “December 2017” and January 20, 2018, that “a blue chair used for BP
checks” “was dilapidated or “Jiggly and Broken,” and that all four “failed to preform [sic]
their duty to investigate the information suggesting a risk of injury,” and that “the risk was
obvious,” and Kranich, Parks, Sestiaga violated prison policy by failing to inspect the chair.
(ECF No. 351 at 7) (emphasis added). Plaintiff quotes a declaration purportedly sworn
under oath by Calaway, a health unit aide worker, averring that in December of 2017
Calaway reported to “Norma” that the chair was “broken.” (ECF No. 351 at 8). Plaintiff
also quotes a declaration purportedly authored by Queen, a health unit aide worker,
averring that a “week before the accident” Queen told “Officers Wes and Kranich that the
blue chair involved was jiggly and should be replaced,” and Queen also told “Nurse Ortiz
that [he] thought the blue chair was broken.” (Id.) (emphasis added). Plaintiff contends
“ACRR owed plaintiff the duty of providing equipment to sit on which is safe for the tasks
that the inmate is required to perform …” (ECF No. 351 at 9). Plaintiff alleges “all four”
defendants had prior knowledge that the chair was “dangerous,” and he implies it was
“suspicious” that he was ordered to “sit in that ‘specific’ chair.” (Id.). Plaintiff asserts that
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“all Defendants” were aware of and “disregarded the excessive risks of broken chair …”
and that the “safe thing for Defendants to do was to write up a work order for the chair”
and “to remove broken chair from area of use.” (ECF No. 351 at 12). Plaintiff contends the
the chair was a “risk” and “dangerous” to “sit on,” and that “a layman could draw this
inference that a substantial risk of serious harm exists if prisoners were to sit in said chair,”
and that “Defendants drew such inference.” (Id.) (emphasis added). Plaintiff contends
“Defendants violated above policies by not reporting broken chair, violating the USC 8th
amend. and Defendants drew this conclusion because even a layman would also society
and a reasonable jurist would (broken chair, bad!).” (Id.) (emphasis added).
With regard to Plaintiff’s claim that Defendants’ act with regard to directing
Plaintiff to sit in a chair that collapsed under his weight, and that Defendants purportedly
were advised prior to the collapse that the chair was “jiggly” and/or “broken,” the Eighth
Amendment protects prisoners from “inhumane” conditions of confinement. See, e.g.,
Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions
may be restrictive and harsh, prison officials must provide prisoners with, inter alia,
personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994), citing Wilson v. Seiter,
501 U.S. 294, 298 (1991). A prisoner states a cognizable § 1983 “failure to protect” claim
under the Eighth Amendment against a prison official when they plausibly allege sufficient
facts that the official acted with “deliberate indifference” to the threat of serious harm or
injury to the prisoner from a dangerous prison condition. See, e.g., Wallis v. Baldwin, 70
F.3d 1074, 1076-77 (9th Cir. 1995) (finding failure to provide protective gear to an inmate
forced to remove asbestos constituted deliberate indifference to the inmate’s safety).
However, a prison official cannot be held liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the standard for criminal recklessness
is met, i.e., the defendant must know of and disregard an excessive risk to inmate health or
safety. Farmer, 511 U.S. at 837.
The failure of a prison official to protect inmates from dangerous conditions at a
prison violates the Eighth Amendment only when two requirements, one subjective and the
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other objective are met; the alleged deprivation must be objectively sufficiently serious and
the prison official must, subjectively, possess a sufficiently culpable state of mind. Id. at
834. A prison official is deliberately indifferent only if they know that a prisoner faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable steps
to abate the harm. Id. at 837. Neither negligence nor gross negligence constitutes deliberate
indifference. Id. at 835-36 & n.4. A prison official will be liable only if “the official knows
of and disregards an excessive risk to inmate health and safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837. The circumstances, nature,
and duration of a deprivation are considered in determining whether a constitutional
violation has occurred. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Although
prison inmates have a right to safe conditions of confinement, “[n]ot every deviation from
ideally safe conditions amounts to a constitutional violation.” Hoptowit v. Spellman
753 F.2d 779, 784 (9th Cir. 1985) (citations omitted). To state an adequate claim for relief
in this context the plaintiff must allege sufficient facts indicating the defendant acted with
a “sufficiently culpable state of mind” i.e., that the named defendant knew the plaintiff
faced a substantial risk of serious harm and disregarded that risk. E.g., Hearns v. Terhune,
413 F.3d 1036, 1041-42 (9th Cir. 2005).
Plaintiff fails to allege sufficient facts to establish that Kranich, Parks, Sestiaga, and
Ortiz had actual knowledge that there was an objectively substantial, serious risk to
Plaintiff from a “jiggly” chair, or that Kranich, Parks, Sestiaga, and Ortiz each actually
knew of such a risk to Plaintiff and consciously chose to disregard that risk with regard to
Plaintiff. Logically, under the facts alleged by Plaintiff, at least one or some other inmates
sat in the chair without incident while having their blood pressure checked in the time after
the health unit aides told “Norma” and “Wes and Kranich” that the chair was “jiggly”
and/or “broken.” Although sitting in the chair did cause physical harm to Plaintiff, it was
not per se objectively obvious to an average person that a jiggly chair would result in such
harm. At best, Plaintiff alleges facts supporting only an inference that these individuals
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were negligent, rather than deliberately indifferent to a substantial risk of serious harm, in
directing Plaintiff to sit in the chair.
Substantial research does not reveal cases within the jurisdiction of the Ninth Circuit
Court of Appeals holding that a single defective object creates an insufficiently humane
condition to support an Eighth Amendment claim. See Olinsky v. Kane, 92 F.3d 934, 937-
38 (9th Cir. 1996) (holding prison officials were entitled to qualified immunity because a
reasonable prison official could have believed that failure to repair an oven did not violate
the Eighth Amendment, where the prisoner suffered second-degree burns on his arm when
the door of an oven in a family visiting unit fell off its hinges). See also LeMaire v. Maass,
12 F.3d 1444, 1457 (9th Cir. 1993) (holding there was no Eighth Amendment violation
when a prisoner was required to wear handcuffs and shackles while in the shower “[e]ven
if the floors of the shower are slippery and [the prisoner] might fall while showering,
slippery prison floors ... do not state even an arguable claim for cruel and unusual
punishment.”); Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004) (concluding that
although a prisoner complained for two months about accumulated water in the shower,
and eventually sustained injuries from the slippery floor, “while the standing-water
problem was a potentially hazardous condition, slippery floors constitute a daily risk faced
by members of the public at large” and the alleged “hazard” was not a sufficiently serious
risk of constitutional dimension); Bibbs v. Armontrout, 943 F.2d 26, 27 (8th Cir. 1991)
(affirming dismissal of an Eighth Amendment claim alleging the prisoner lost two fingers
because a machine with which he was working had its safety guards removed; the appellate
court determined the prison officials’ conduct in ignoring the hazard was mere negligence
rather than “wanton” disregard for the prisoner’s safety); Brown v. Basher, No. 10-cv-
0479, 2012 WL 639446 (E.D. Cal. Feb. 27, 2012) (granting defendants’ motion for
summary judgment against a mobility-impaired prisoner who ambulated with a cane and
slipped and fell on a puddle, created by a water leak, concluding that although the
defendants knew about the puddle, the claim was one of negligence rather than deliberate
indifference). Generally, the federal courts have concluded that plaintiffs have failed to
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state claims when they have fallen in prison. Daniels v. Williams, 474 U.S. 327, 332-33
(1986) (rejecting a due process claim by a pretrial detainee who slipped and fell when a
pillow was negligently left on the stairs by a deputy); Wallace v. Haythorne, No. 06-cv-
1697, 2007 WL 3010755, *4 (E.D. Cal., Oct. 15, 2007), aff’d, 328 F. App’x, 467 (9th Cir.
2009) (holding there was no triable issue as to deliberate indifference when an inmate fell
after tripping on a hole in a kitchen floor).
B. Count 4
In the screening order at ECF No. 18 the Court described Count 4 of the Second
Amended Complaint as follows:
In Count Four, Plaintiff alleges that shortly after his fall on
January 27, 2018, he asked Defendant Sestiaga for a copy of the medical
staff’s daily equipment inspection sheets or logs. Defendant Sestiaga told
Plaintiff that neither Corizon nor ADC had such forms for her to use and that
she would not “discuss it” with Plaintiff. Plaintiff also asked “the same
questions” to Defendant Kranich, and Kranich stated she did not know of any
such forms and told him, “that[‘]s enough[,] go away.” Defendants Parks and
Ortiz also told Plaintiff that they had no knowledge of daily inspection logs
of medical equipment.
Plaintiff alleges that he suffered the wanton infliction of serious pain
because Defendant Ryan failed to implement policies, customs, or
regulations for daily medical equipment checks, logs, or inspection sheets.
Plaintiff asserts that Defendant Ryan also failed to provide “specific” training
to staff, including Defendants Kranich and Parks.
Plaintiff claims that Defendants Ryan, ADC Agents, and Corizon
Agents, as well as non-party Deputy Director Richard Pratt, are ultimately
responsible for his injuries because they failed to implement the necessary
policies, customs, regulations, and training for ADC security staff and
medical staff. Plaintiff contends that Defendant Ryan is ultimately liable for
ADC policy when ADC acts or fails to act, and prisoners suffer because of
it. Plaintiff also alleges that due to Defendants Ryan and Corizon Agents’
unconstitutional failure to act or implement safety inspections “of even the
most basic standards,” as required by federal law, Plaintiff suffered serious,
wanton pain, permanent physical injury, and depression. Plaintiff asserts that
if a policy for daily equipment inspections had been in place on January 27,
2018, he would not have sat on the dilapidated chair and suffered injury.
Plaintiff claims that “under absolute or alternative liability,” the “State and
Corporate should coordinate ‘strictish’ liability” for his permanent physical
injuries. [footnote 4: It is not clear what Plaintiff means by “‘strictish’
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liability.” As discussed below, Plaintiff’s threat-to-safety claims arise under
the Eighth Amendment, which requires a showing that a Defendant was
deliberately indifferent to Plaintiff’s safety. There is no absolute, alternative,
strict, or “strictish” liability in a § 1983 claim.]
(ECF No. 18 at 6-7 & n.4).
In dismissing Count 4 the Court found and concluded as follows:
There is no respondeat superior liability under § 1983, and therefore,
a defendant’s position as the supervisor of persons who allegedly violated
Plaintiff’s constitutional rights does not impose liability. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067
(9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff alleges in Count Four that Defendant Ryan failed to implement
policies, customs, or regulations for daily medical equipment checks, logs,
or inspection sheets. However, Plaintiff has not alleged any facts to support
a conclusion that Defendant Ryan was aware that a lack of policies requiring
daily medical equipment checks, logs, or inspection sheets threatened
Plaintiff’s safety. Plaintiff asserts that Defendant Ryan also failed to provide
training to staff, including Defendants Kranich and Parks. To state a claim
based on a failure to train or supervise, a plaintiff must allege facts to support
that the alleged failure amounted to deliberate indifference. Canell v.
Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). A plaintiff must allege facts
to support that not only was particular training or supervision inadequate, but
also that such inadequacy was the result of “a ‘deliberate’ or ‘conscious’
choice” on the part of the defendant. Id. at 1213-14; see Clement v. Gomez,
298 F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts to support that
“in light of the duties assigned to specific officers or employees, the need for
more or different training is obvious, and the inadequacy so likely to result
in violations of constitutional rights, that the policy[]makers … can
reasonably be said to have been deliberately indifferent to the need.”)
(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). A plaintiff
must also show a “sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.” Redman v. County of San
Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations omitted).
Plaintiff has alleged no facts regarding any particular training or
supervision that Defendants Kranich and Parks received, let alone allege any
facts to support a conclusion that such training or supervision was inadequate
and was a deliberate or conscious choice by Defendant Ryan. Plaintiff
therefore has failed to state a claim against Defendant Ryan in Count Four.
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b. Defendants Sestiaga, Kranich, Parks, and Ortiz
Plaintiff alleges that Defendants Sestiaga, Kranich, Parks, and Ortiz
were not aware of any forms or logs that medical staff used for daily medical
equipment inspections. This allegation is insufficient to support a conclusion
that any named Defendant was aware of and disregarded a substantial risk of
serious harm to Plaintiff as a result of a lack of daily inspections. Plaintiff
also does not allege that Defendants Sestiaga, Kranich, Parks, and Ortiz had
any authority to require daily medical equipment inspections. Thus, Plaintiff
has not stated a claim against Defendants Sestiaga, Kranich, Parks, and Ortiz
in Count Four, and these Defendants will be dismissed.
(ECF No. 18 at 15-16).
In the Third Amended Complaint Plaintiff reiterates the claims made in in Count 4
of the Second Amended Complaint, and states “ADCRR’s Health Services Technical
Manual,” under the subsection “medical equipment” requires that “medical equipment
shall be inspected regularly.” (ECF No. 351 at 14). Plaintiff contends Ryan failed to train
and provide inspection logs and failed to require “regular inspections of Health Unit,”
constituting “deliberate indifference.” (Id.).
Plaintiff fails to add sufficient facts to adequately state a claim for relief in Count 4
of the Third Amended Complaint, because § 1983 provides no redress for prison staff’s
violation of state prison regulations. See, e.g. Nurre v. Whitehead, 580 F.3d 1087, 1092
(9th Cir. 2009).
C. Count 6
In the screening order at ECF No. 19 the Court described Count 6 of the Second
Amended Complaint as follows:
Plaintiff alleges that after his fall on January 27, 2018, he was sent to
a specialist and underwent physical therapy for six to eight weeks. The
specialist “requested” that Plaintiff continue therapy for another six to eight
weeks and “certified it” as a “medical necessity.” Plaintiff’s provider at the
prison agreed with the specialist that Plaintiff should receive additional
physical therapy for his injuries. Specifically, non-party NP Thomas2
requested that the specialist who treated Plaintiff continue the physical
therapy “due to its medical necessity.” Despite the specialist’s
2 On November 20, 2020, Plaintiff voluntarily dismissed Thomas as a defendant in this
matter. (ECF No. 17).
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recommendation, Defendants Corizon Agents denied NP Thomas’s request
for physical therapy. Plaintiff “got worse” without the physical therapy.
Centurion took over medical care for ADC in July 2019, and
sometime thereafter, a Centurion Agent apparently denied another provider
request for physical therapy. Plaintiff “personally notified” Defendant Ryan
and Deputy Director Pratt that physical therapy was medically necessary,
[footnote 5: Plaintiff also alleges that Defendant Ryan and Deputy Director
Pratt were “personally notified” by the Prison Law Office, counsel for the
plaintiffs in Parsons v. Ryan, CV 12-00601-PHX-ROS (D. Ariz.), that
physical therapy was medically necessary] but Defendant Ryan and Deputy
Director Pratt both denied the physical therapy.
Plaintiff alleges that Defendant Ryan and Deputy Director Pratt were
ultimately responsible for Plaintiff’s health and to provide “medical
necessities recommended by NPs and specialists.” Plaintiff asserts that
because he was denied physical therapy, he has suffered permanent harm and
needs an aide to help him complete his daily activities. Plaintiff claims he
suffers “the wanton infliction of serious daily pain.”
(ECF No. 18 at 8-9 & n.5)
In dismissing Count 6, the Court found and concluded:
Plaintiff’s allegations in Count Six are too vague and conclusory to
support a conclusion that any named Defendant was aware of and
disregarded a substantial risk of serious harm to Plaintiff’s health. Plaintiff
does not provide any details regarding his providers’ requests for physical
therapy, including when any request was made, to whom the request was
made, the information included in the request, the response to the request, or
how the response to the request amounted to deliberate indifference to his
serious medical needs. Although Plaintiff alleges that he “personally
notified” Defendant Ryan that he needed physical therapy, Plaintiff does not
specify when or how he notified Defendant Ryan, what information Plaintiff
conveyed to Plaintiff, whether or how Ryan responded to Plaintiff’s
notification, and how Ryan’s response or lack of response amounted to
deliberate indifference to his serious medical needs. As presented, Plaintiff
has not stated a medical care claim in Count Six, and this claim will therefore
be dismissed.
(ECF No. 18 at 7-8).
In his Third Amended Complaint Plaintiff states that Nurse Practitioner (“NP”)
“Okafor” referred Plaintiff to Martha Ramirez for four weeks of off-site physical therapy
on August 23, 2018, seven months after his injury; he does not address his prior claim
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regarding the “specialist” and NP Thomas in the months immediately after his injury in
January of 2018. (ECF No. 351 at 9). Plaintiff alleges “Simmons Therapy (off-site)
determined plaintiff’s lower extremity function scale was 26/80” on September 6, 2018.
(Id.). Plaintiff alleges that on October 12, 2018, NP Thomas referred him to “Corizons [sic]
utilization management team for continued [physical therapy] for further treatment with
Simmons Therapy,” and that “Espinoza forwarded Simmons recommendations with NP
Thomas request for P.T. as a medical necessity to the ‘Utilization Management Team’”
who denied the request “with deliberate indifference.” (Id.). Plaintiff also alleges that on
September 6, 2018, Simmons “requested Plaintiff continue” on physical therapy for eight
“more weeks” as a “medical necessity,” “however” this request was denied by the
Utilization Management Team. (Id.). Plaintiff further alleges that between May 23, 2019,
and October 23, 2019, “Corizon and Centurion agents,” including the “UTM,” “cancelled
NP Okafors and NP Thomas’ recommendations by certified Simmons Therapy P.T. []
Simmons recommendation of medical necessity for treatment with deliberate
indifference.” (ECF No. 351 at 17). With regard to a claim arising from these allegations
against a specific defendant named in this count of the Third Amended Complaint, Plaintiff
asserts: “On 10.17.18 Defendant [Director of ADCRR] ultimately agreed with the ‘UTM’
(unknown doctors) that medical necessity for further visits with P.T. is not met [against
specialists, NP Thomas and NP Okafor’s recommendations].” (Id.) (bracketing in original).
In Count 6 of the Third Amended Complaint Plaintiff fails to allege sufficient facts
plausibly giving rise to a cognizable a claim for relief against any named defendant
identified the Third Amended Complaint. Specifically, Plaintiff fails to allege specific,
plausible facts that named Defendants Maldonado, identified as Vice-President of
Operations for Corizon, or Defendant Unknown Corizon CEO, or Defendant Unknown
Centurion of Operations, or Defendants Unknown Centurion Health Agents, or Defendant
Demery, identified as the “Health Facilitator for Centurion,” acted with subjective
deliberate indifference in disregard of actual knowledge of a substantial risk of objectively
serious harm to Plaintiff with regard to to providing Plaintiff with physical therapy.
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D. Count 7
In Count 7 of the Third Amended Complaint Plaintiff alleged he was denied timely
and adequate medical care, in violation of his Eighth Amendment rights. Plaintiff alleged
that in June of 2019 he had been prescribed Wellbutrin for serious mental illnesses, “which
allows him to function at a higher level and maintain his anger and suicidal thought … and
fighting with others …” (ECF No. 16 at 11). Plaintiff alleged that on June 9, 2019,
“unknown Corizon Health Agents” denied him Wellbutrin, and he further alleged that
Corizon nurses at the dispensary advised they had notified the pharmacy “that the
medication was missing but that the script was current.” (Id.). Plaintiff alleged he was
denied Wellbutrin for nine days. (Id.). Plaintiff alleged he immediately alerted the “Health
Facilitator,” who is the defendant “Respondent Superior for discovery of who caused
delay.” (Id.). Plaintiff alleged that from June 9 through June 14, 2019, the “medical unit”
“refused” to provide him with Wellbutrin, and “nurses claimed Carson ‘must’ have his
medications, but pharmacy refuses to send another bottle/card of Wellbutrin.” (Id.).
Plaintiff asserted: “Health Facilitator C. Demery is Respondent Superior for discovery
purposes.” (Id.). Plaintiff further asserted he “became a security risk” and was unable to
sleep. (Id.). Plaintiff also alleged: “Security finally spoke with [unknown] medical staff”
and he “was advised that Corizon was going to give him his Wellbutrin,” but he did not
receive it “for 2 more days.” (Id.). Plaintiff contends he became “too paranoid and
aggressively manic” and on June 16, 2019, “Corizon staff drove to Walmart/Walgreens (?)
and bought Carson his Wellbutrin [this] was deliberate indifference of mental and physical
pain/suffering.” (Id.). Plaintiff also asserted that from May 23, 2019, to October 23, 2019,
he was denied his “noon pain medication Gabapentin by NP Weigel,” and he was denied
an alternative pain medication. (Id.). He alleged NP Weigle refused noon medication on
June 25, 2019, and that “Unknown Centurion Agents refused [NP Thomas’s] orders.” (Id.).
Plaintiff asserted Weigel and “Unknown Centurion Agents” were deliberately indifferent
because they “denied Carson pain relief from his [January 27, 2018] back injury (for
approx. 5 months without any substitution-non treatment).” (Id.).
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In the order dismissing Count 7 of the Second Amended Complaint the Court
described Count 7 as follows:
Plaintiff alleges that he suffers from mental illnesses, including, but
not limited to, post-traumatic stress disorder, bipolar disorder, and
depression. Plaintiff has a history of violence, including assault, self-
mutilation, and murder. Plaintiff’s psychiatrist prescribed an antidepressant,
Wellbutrin, which allows Plaintiff to function at a higher level and control
his anger and thoughts of suicide and self-harm, such as cutting himself and
fighting with others. On June 9, 2019, Defendants Corizon Agents “denied”
Plaintiff his prescribed Wellbutrin. Corizon nurses who were distributing
medication advised Plaintiff that they had notified the pharmacy that the
medication was missing and that Plaintiff’s prescription was current.
Plaintiff immediately advised Defendant Demery and ADC about the
missing Wellbutrin and that he did not “want to suffer” depression and/or act
out violently. Between June 9 and 14, 2019, the Corizon medical unit
“refused” to provide Plaintiff with Wellbutrin, and the pharmacy “refused”
to send another bottle or package of Wellbutrin. Without the medication,
Plaintiff began to “panic and bec[a]me a security risk” by arguing with non-
party Sergeant Sweetman, who Plaintiff believed had a knife in his boot and
was going to attack him. Defendant Willis had to intervene. Plaintiff also
reported an inability to sleep for days. ADC Security “finally spoke with”
medical staff, and Plaintiff was advised that Corizon was going to give him
the Wellbutrin. Plaintiff did not receive Wellbutrin for the following two
days. On June 16, 2019, Plaintiff became paranoid and aggressively “manic.”
That day, Corizon staff drove to an offsite pharmacy and bought Wellbutrin
for Plaintiff. Plaintiff alleges that he experienced mental and physical pain
and suffering for nine days because he did not have his medication. Plaintiff
claims he suffered depression, difficulty sleeping, panic attacks, difficulty
breathing, swelling of his tongue, biting his lips, stress sores in his mouth,
hallucinations, and high blood pressure.
Plaintiff also asserts that between May 23 and October 23, 2019,
Defendant Weigel “denied” Plaintiff his noontime pain medication,
gabapentin. Plaintiff requested alternative pain medication, but Weigel
refused. On July 25, 2019, NP Thomas, Plaintiff’s primary provider,
reordered the gabapentin, but Defendants Centurion Agents “refused”
Thomas’s orders. Plaintiff alleges that Defendants Weigel and Centurion
Agents were deliberately indifferent by denying him pain medication for the
back injury he suffered in the January 27, 2018 fall. Plaintiff asserts he did
not receive the pain medication for five months and was not given a substitute
medication. He claims the denial of gabapentin caused him migraines and
“serious wanton infliction of pain and suffering” in his lower back.
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(ECF No. 18 at 9-10)
In dismissing Count 7 the Court found and concluded:
Plaintiff’s allegations in Count Seven with respect to Wellbutrin are
insufficient to state a claim. Plaintiff alleges that Corizon Agents “denied”
Plaintiff his prescribed Wellbutrin and that the medication was “missing,”
but he provides no factual detail concerning the denial of the medication or
how it became “missing.” Although Plaintiff claims he immediately advised
Defendant Demery and ADC about the missing Wellbutrin, he does not
provide any factual detail to support this allegation, such as specifically when
and how he advised Defendant Demery and ADC about this missing
medication and the response, if any, that he received. Plaintiff also provides
no specific details about Corizon medical unit’s “refusal” to provide
Wellbutrin and the pharmacy’s refusal to give Plaintiff more medication,
such as how the medical unit or the pharmacy refused to give Plaintiff
Wellbutrin, and the reasons given, if any, for the refusal.
Plaintiff’s allegations regarding the denial of pain medication are
likewise too vague and conclusory to state a claim. Plaintiff provides no
factual detail concerning the denial of gabapentin, such as when and how
Defendant Weigel “denied” Plaintiff his noontime dose of gabapentin and
the reasons given, if any, for the alleged denial. Similarly, Plaintiff does not
specify when or how he requested alternative pain medication from Weigel
and what response Weigel gave to any such request. Plaintiff also alleges
Defendants Centurion Agents[] denied NP Thomas’s order for gabapentin,
but he provides no factual detail concerning the denial, such as when or how
the order was denied and the reasons given, if any, for the denial.
Accordingly, Plaintiff has not stated a deliberate indifference claim in Count
Seven, and this claim will be dismissed, as will Defendants Demery, Weigel,
ADC Agents, Corizon Agents, and Centurion Agents.
(ECF No. 18 at 18-19).
In Count 7 of his Third Amended Complaint Plaintiff alleges “Uknown Corizon
Health Agents” denied him Wellbutrin for seven days, beginning June 9, 2019. (ECF
No. 351 at 19). Plaintiff alleges that denying him “a psychotropic was deliberate
indifference.” (Id.). Plaintiff further alleges that on May 18, 2019, NP Weigle
“discontinued Plaintiff pain relief medication after seeing Plaintiff for an MRI request (due
to recent falls). NP Weigle gave Plaintiff no replacement medication for the Gabapentin
which NP Weigle cut from order.” (Id.). Plaintiff alleges NP Weigle denied him
Gabapentin for 138 days (from May 10, 2019), and that an “Unknown Doctor supported”
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this decision “with no proof at all NP Weigle claimed Plaintiff was selling his medication
he was not.” (Id.). Plaintiff alleges “regular NP Thomas got Plaintiff back on Gabapentin,
however Plaintiff was forced to suffer wanton serious pain due to NP Weigle’s …
deliberate indifference.” (Id.).
To adequately allege an Eighth Amendment claim based on prison medical
treatment, the plaintiff must show “a serious medical need by demonstrating that ‘failure
to treat a prisoner’s condition could result in further significant injury or the unnecessary
and wanton infliction of pain,” and that “the defendant’s response to the need was
deliberately indifferent.” Jett v. Penner, 439 F.3d at 1096 (9th Cir. 2006) (internal
quotations omitted and emphasis added), citing Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The deliberate indifference standard involves an objective and a subjective prong. First,
the alleged deprivation must be, objectively, “sufficiently serious.” Farmer, 511 U.S. at
834, citing Wilson, 501 U.S. at 298. Second, the prison official must actually know of and
disregard an excessive risk to inmate health or safety when they take the challenged action.
Farmer, 511 U.S. at 837. Deliberate indifference is shown by a “purposeful” act or failure
to respond to a prisoner’s medical need, and harm caused by the indifference. Jett, 439
F.3d at 1096. When assessing potential liability for deliberate indifference, the Court must
take an individualized approach and consider the duties and discretion of each defendant,
and whether each defendant “was in a position to take steps to avert the [harm], but failed
to do so intentionally or with deliberate indifference ... The prisoner must set forth specific
facts as to each individual defendant’s deliberate indifference.” Leer v. Murphy, 844 F.2d
628, 633-34 (9th Cir. 1988).
Medical malpractice does not become a constitutional violation merely because the
victim is a prisoner. Estelle, 429 U.S. at 106. And isolated occurrences of neglect do not
rise to the level of an Eighth Amendment violation. See O’Loughlin v. Doe, 920 F.2d 614,
617 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). For an
isolated incident to rise to the level of deliberate indifference it must be egregious in nature.
See McGuckin v. Smith, 974 F.2d 1050, 1060-61 (9th Cir. 1992) (holding repeated failure
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to properly treat a prisoner or a single failure that is egregious strongly suggests deliberate
indifference), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,
1136 (9th Cir. 1997); Wood, 900 F.2d at 1334 (“[i]n determining deliberate indifference,
we ... look for substantial indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect”). Even when a plaintiff plausibly alleges
they suffered chronic and severe pain, and the defendant’s conduct was unprofessional and
negligent, this is not enough to show deliberate indifference sufficient to establish an
Eighth Amendment violation. See Wood, 900 F.2d at 1334. “Deliberate indifference is a
high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with
deliberate indifference, a prison official must both know of and disregard an excessive risk
to inmate health; “the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837. “Neither negligence nor gross negligence will constitute
deliberate indifference.” Clement v. California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105
(N.D. Cal. 2002). Furthermore, a difference of opinion between medical professionals as
to a course of care does not establish that one professional was deliberately indifferent to a
prisoner’s serious medical needs. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir.
2014); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The indifference must be
substantial; the action giving rise to the claim must rise to a level of “unnecessary and
wanton infliction of pain.” Estelle, 429 U.S. at 105 (emphasis added). And a mere delay in
medical care, without more, is insufficient to state a claim against prison officials for
deliberate indifference. Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407
(9th Cir. 1985). In summary, neither an inadvertent failure to provide adequate medical
care, nor mere negligence or medical malpractice, nor a mere delay in medical care, nor a
difference of opinion over proper treatment, constitutes an Eighth Amendment violation.
Even gross negligence is insufficient to establish deliberate indifference. See Farmer, 511
U.S. at 835-36 & n.4; Wood, 900 F.2d at 1334.
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Plaintiff fails to cure the deficiencies noted in the screening order at ECF No. 18.
Plaintiff fails to assert sufficient facts plausibly alleging that any named Defendant
purposefully ignored or failed to respond to Plaintiff’s pain or medical needs. At best
Plaintiff shows a short-term, inadvertent failure to provide adequate medical care,
differences of opinion in medical treatment, and a non-serious, short-term delay in
treatment, which is insufficient to sustain an Eighth Amendment claim. Even if the
allegations might support a claim of medical malpractice, this is insufficient to establish a
constitutional violation. See, e.g., Estelle, 429 U.S. at 106. Plaintiff fails to establish that
any named Defendant acted with “subjective recklessness,” analogous to how that phrase
is used in criminal law. Farmer, 511 U.S. at 839. See also Simmons v. G. Arnett, 47 F.4th
927, 933-34 (9th Cir. 2022). Plaintiff’s allegations do not rise to the level of any named
Defendant’s wanton infliction of pain. And that one NP believed Plaintiff had a need for
the medication and, at best, another did not, is insufficient to establish that the withholding
practitioner engaged in an unnecessary and wanton infliction of pain. See, e.g., Jones v.
Henry, 635 F. Supp. 3d 803, 812 (D. Ariz. 2022).
IV. Conclusion
The Ninth Circuit Court of Appeals remanded this matter, finding the Court erred
in not allowing Plaintiff the opportunity to state additional facts in an effort to sufficiently
state cognizable claims for relief against the Defendants named in the Second Amended
Complaint with regard to Counts 1, 4, 6, and 7. In the Third Amended Complaint Plaintiff
fails to allege sufficient additional facts to adequately state a cognizable claim for relief
with regard to any of the named Defendants.
Plaintiff was given two opportunities to amend his claims before the Court
dismissed, without prejudice, the relevant claims stated the Second Amended Complaint,
and Plaintiff was given a deadline to further amend his claims in the scheduling order
issued February 16, 2021. The Court may exercise its discretion and deny leave to further
amend a complaint when the Plaintiff was previously given an opportunity to amend their
claims. See, e.g., Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th
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Cir. 1996). Notably, the Ninth Circuit Court of Appeals did not remand because it found
Plaintiff’s claims potentially meritorious, but only because it concluded Plaintiff had been
denied leave to amend the relevant claims. Upon being granting the opportunity to amend
his after remand claims, Plaintiff has failed to state sufficient facts plausibly stating each
named Defendant violated his federal constitutional rights. Leave to amend should not be
granted when such amendment would be futile, e.g., Garner v. Martino, 563 F.3d 981, 990
(9th Cir. 2009), and it is likely that allowing Plaintiff another opportunity to amend his
claims would be futile as it is unlikely he could plead additional plausible facts, in addition
to those plead herein, establishing a cognizable claim for relief.
Accordingly,
IT IS RECOMMENDED that the Court dismiss Counts 1, 4, 6, and 7 of the Third
Amended Complaint at ECF No. 351, without leave to amend.
IT IS FURTHER RECOMMENDED that the Court dismiss Defendants Demery,
Kranick, Maldonado, Ortiz, Parks, Sestiaga, Unknown Centurion VP of Operations,
Unknown Corizon Health Agents, Unknown Centurion Health Agents, and NP Weigel, as
defendants in this matter.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal
Rules of Appellate Procedure should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen days from the date of service of a copy of this
recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 7(b)(2). Thereafter, the parties have fourteen days
within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules
of Civil Procedure for the United States District Court for the District of Arizona,
objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
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1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 29th day of November, 2025.
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