Huston #284061 v. Mardesich et al

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MGD
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Donald R. Huston,
Plaintiff,
v.
A. Mardesich, et al.,
Defendants.
No. CV-23-02203-PHX-JAT (DMF)
ORDER
Plaintiff Donald R. Huston, who is currently confined in the Central Arizona
Correctional and Rehabilitation Facility (CACRF), brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983 regarding the alleged lack of treatment for a detached retina.
Defendant Mardesich moves for summary judgment. (Doc. 46.) Plaintiff was informed of
his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th
Cir. 1998) (en banc) (Doc. 49), and he opposes the Motion. (Doc. 66.)
I. Background
On screening the Complaint under 28 U.S.C. § 1915A(a), the Court determined that
Plaintiff stated an Eighth Amendment medical care claim in Count One against Defendant
Health Service Administrator (HSA) A. Mardesich in her individual capacity based on the
allegation that Defendant instituted policies that delayed Plaintiff from receiving healthcare
and led to blindness in one eye. (Doc. 5.) The Court directed Defendant to answer the
claim and dismissed the remaining claim and defendant. (Id.)
Case 2:23-cv-02203-JAT Document 70 Filed 11/24/25 Page 1 of 13

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II. Legal Standards
A. Summary Judgment Standard
A court must grant summary judgment “if the movant shows that there is no genuine
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 also 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 Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,
1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden 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 must believe the nonmovant’s evidence and draw
all inferences in the nonmovant’s favor. Id. at 255. 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).
B. Eighth Amendment
To support a medical care claim under the Eighth Amendment, a prisoner must
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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). 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. “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 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). Deliberate
indifference may also be shown where prison officials fail to respond to a prisoner’s pain
or possible medical need. Jett, 439 F.3d at 1096. “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).
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III. Facts1
CACRF is a private prison in Florence, Arizona, operated under contract with the
Arizona Department of Corrections Rehabilitation and Reentry (ADCRR) by GEO Secure
Services (GEO). (Doc. 47 (Def.’s Statement of Facts (DSOF)) ¶¶ 1, 3.) At the time
relevant to the Complaint, Defendant was employed as a medical services provider and
HSA for GEO. (Id. ¶ 3.)
On February 23, 2022, Plaintiff saw an outside provider, Dr. Derek Y. Kunimoto,
MD, at Retinal Consultants of Arizona Ltd., and Dr. Kunimoto diagnosed Plaintiff with
retinal detachment of the right eye. (Doc. 66-2 at 5.) Dr. Kunimoto recommended surgery,
and Plaintiff consented to surgery. (Id.) On March 7, 2022, Plaintiff had surgery by Dr.
Kunimoto for “SERIOUS RETINAL DETACHMENT RIGHT EYE; TRD OD.” (Doc.
66-2 at 43 (emphasis in original).)
On March 8, 2022, Plaintiff had a one-day post-op follow up at Retinal Consultants
and reported that his right eye felt sore, but he had no pain or complaints.2 (Doc. 66-1 at
50, 53.) Dr. Jamal noted: “Doing well. Start Rx, alt precautions, and positioning. Return
1 week (DYK),” which apparently meant Plaintiff was to return in a week to see Dr.
Kunimoto. (Id.)
1 Defendant provides almost no evidence of Plaintiff’s medical care in her summary
judgment briefing, and her Statement of Facts (Doc. 47) merely makes the conclusory
assertion that she provided “appropriate, reasonable medical services” to Plaintiff to
address his medical needs and that nothing in her encounters with him revealed a serious
medical need. Therefore, most of the relevant facts regarding Plaintiff’s medical care are
taken from the medical records Plaintiff submitted with his Response and from Plaintiff’s
Complaint. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se
plaintiff’s verified pleadings must be considered as evidence in opposition to summary
judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint
may be used as an affidavit opposing summary judgment if it is based on personal
knowledge and sets forth specific facts admissible in evidence).
2 Karim N. Jamal, MD, apparently did the follow-up exam because he signed this
medical record. (See Doc. 66-1 at 53.)
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On March 16, 2022, Plaintiff saw Dr. Kunimoto for follow up. (Id. at 46.) Dr.
Kunimoto noted: “OD VA slowly clearing up. NO pain. Using drops as directed. OS no
complaints.” (Id.) Dr. Kunimoto further noted: “Retina is attached. There is mild traction
inferiorly. No s/s of infection IOP is good at (16).” (Id. at 49.)
On April 27, 2022, Plaintiff saw Dr. Kunimoto for follow up, and Plaintiff reported
no change in his vision since the last visit and no floaters, flashes or pain in either eye. (Id.
at 43.) Dr. Kunimoto’s Assessment was “Recurrent RD [retinal detachment] OD [right
eye]” and “S/P 25 g PPV / SBP /MP / PRP /C3f8 gas OD – 03/07/2002.” (Id. at 45.) Under
Plan of Care, Dr. Kunimoto wrote:
Unfortunately, there is inferior PVR3 with a recurren[t] RD
OD. Recommend surgery. RBA discussed. The patient elects
surgery.
Drops Vigamox QID until done
Pred QID
Plan: 25 g PPV / MP /PRP / retinectomy / SO exchange OD
(Id.) On April 27, 2022, Plaintiff signed a surgical consent form for a retinectomy of the
right eye for “recurrent RD.” (Doc. 66-2 at 44-45.)
On May 9, 2022, Plaintiff submitted an HNR to make sure the follow-up surgery
was scheduled. (Doc. 66-1 at 7.) The nurse’s response says, “Given to MRC.” (Id.) On
May 10, 2022, Nurse Courtney told Plaintiff to use Inmate Letters, not HNRs, “for these
types of questions as they bog down her nursing line.” (Doc. 1 at 5-6.)
Plaintiff explains that under ADCRR Department Order 1101, prisoners request
healthcare through an HNR and are supposed to be seen by a nurse within 24 hours of
receipt of an HNR for routine needs or immediately for emergent needs. (Id. at 4.) Plaintiff
3 “Proliferative vitreoretinopathy (PVR) is the most common cause for failure of
rhegmatogenous retinal detachment repair and is characterized by the growth and
contraction of cellular membranes within the vitreous cavity and on both sides of the retinal
surface as well as intraretinal fibrosis.” National Institutes of Health, Proliferative
Vitreoretinopathy: A Review, https://pmc.ncbi.nlm.nih.gov/articles/PMC6310037/
[permalink: https://perma.cc/3JFF-48RL ].
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states that when a prisoner submits an Inmate Letter, it can take up to 20 workdays for a
response. (Id.) The difference in response times between an HNR and Inmate Letters,
according to Plaintiff, results in cost savings because it “reduces the number of nurses
required to conduct nursing lines, which result in delays or denial in proper healthcare.”
(Id.)
On May 10, 2022, Plaintiff submitted an Inmate Letter to the HSA requesting the
second surgery. (Id. at 6.)4 On May 13, 2022, Defendant responded that “she personally
called the ‘surgery scheduler’ and ‘successfully confirmed’ plaintiff was scheduled for the
recommended eye surgery soon.” (Id.) Plaintiff spent a night in a medical unit observation
bed prior to surgery, but the following day he was released back to his unit and was told
his surgery was canceled because GEO did not have the staff to transport him to surgery.5
(Id.)
On May 16, 2022, Breanna Estrada from Retinal Consultants called the prison to
reschedule surgery because Plaintiff was a no show for surgery that day. (See Doc. 66-1
at 42.)
On May 25, 2022, Plaintiff submitted an HNR stating that he was scheduled for
surgery on his right eye for a detached retina and asking if the 3 different drops he was
supposed to use for 3 days prior to the surgery had been ordered. (Id. at 8.) A nurse
responded that “we will let you know prior x 3 days before. Appointment was 5-16-2022.
Has to be rescheduled.” (Id.)
On June 1, 2022, Breanna Estrada from Retinal Consultants called the prison to see
if Plaintiff’s surgery could be moved up to June 2 but the prison informed Estrada that a
driver was not available to transport Plaintiff and so the surgery would remain scheduled
for June 27. (Id. at 41.)
4 The Inmate Letters and Responses that Plaintiff writes about in his Complaint are
not in the record.
5 Plaintiff does not say when this occurred but, given the context, it appears this
happened around May 16, 2022.
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On June 7, 2022, Plaintiff sent an Inmate Letter to Medical concerning the surgery
and eyedrops he needed to use prior to surgery. (Doc. 1 at 6.) The HSA responded on June
13, 2022, that the surgery had been rescheduled and the eye drops had been reordered.
(Id.)6 Plaintiff did not receive the eyedrops he was supposed to use prior to the surgery.
(Id.)
On June 27, 2022, Dr. Kunimoto performed another surgery for Plaintiff’s “TOTAL
RETINAL DETACHMENT RIGHT EYE.” (Doc. 66-2 at 36-37 (emphasis in original).)
The procedure was a “Right Vitrectomy, Laser, Membrane Strip, Retinectomy, Silicone
Oil Injection.” (Id. at 37.) Plaintiff explains that an “NOS bubble” was placed in his right
eye “to hold parts of the eye together” and that the surgeon said the NOS bubble must be
released in 6 weeks, i.e., around August 8, 2022. (Doc. 1 at 6, 9.)
On June 28, 2022, Plaintiff saw Dr. Sachin Mehta at Retinal Consultants for follow-
up. (Doc. 66-1 at 36, 40.) Plaintiff complained of blurry vision in his right eye. (Id.)
Following examination, Dr. Mehta noted:
—retina attached under oil
—no s/s infection
—eye is soft by AC formed, no wound leak
—Start PF/Oflox QID
—RD/endoph WS discussed
—positioning discussed
—f/u 1 week PO OD w/ DYK
(Id. at 39.)
Upon Plaintiff’s return to prison that day, a nurse noted that Plaintiff had an eye
patch and was to use eye drops for 3 months. (Doc. 66-2 at 22.) The nurse also wrote “F/u
1 wk PO OD c DYK,” which presumably meant Plaintiff was to follow up in one week
with Dr. Kunimoto.
6 “HSA” apparently refers to Defendant.
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On August 9, 2022, Plaintiff submitted an HNR asking if the post-op appointment
that was to take place 6 weeks after the surgery had been scheduled. (Doc. 66-1 at 9.) LPN
T. Shaffer responded that same day to “submit inmate letter.” (Id.)
On August 16, 2022, Plaintiff submitted Inmate Letters to Medical and the HSA
“requesting care.”7 (Doc. 1 at 7.)
On August 17, 2022, Plaintiff felt that the NOS bubble had ruptured. (Id.)
On August 18, 2022, RN Blanco noted in Plaintiff’s prison medical record that
Plaintiff was complaining of right eye pulsating and shaking for the past 3 days and that
“the bubble that was put on my last [right] eye Sx [surgery] has popped.” (Doc. 66-4 at 4-
5.) RN Blanco wrote that Plaintiff had surgery on June 27, 2022, “schedule [patient with]
ophthalmology surgeons,” and referred Plaintiff to a healthcare provider. (Id. at 4-5.)
On August 23, 2022, Deputy Warden Dennis looked at Plaintiff’s eye and instructed
Plaintiff to submit an HNR. (Doc. 1 at 7.) Plaintiff considered this a direct order from the
Deputy Warden and so submitted the following HNR on August 24, 2022: “Attn: HSA A.
Mardesich. I had surgery on my right eye for a detached retina. I was supposed to go back
to the surgeon on 8/8/2022 for a 6 week post-op check up and to pop the N.O.S. bubble in
my eye. I have not gone and it’s almost 2 week[s] past due. I need to know when I will
go.” (Id.; Doc. 66-1 at 10.) On August 25, 2022, Defendant responded: “You are
scheduled. Please use an inmate letter for this type of request in the future.” (Doc. 66-1 at
10.)
On August 25, 2022, Plaintiff saw Dr. Mehta at Retinal Consultants, and Plaintiff
reported his “vision has barely been LP since surgery. He can see a small silver [sic] of
light in the upper lefthand quadrant of the right eye. He does not feel this has changed
since surgery. Patient denies pain or headaches OD.” (Id. at 34.) The Assessment by Dr.
Mehta was “S/P 25 g PPV / MP / PRP / retinectomy / SO exchange OD – 59 Days. Total
retinal detachment, right eye.” (Id. at 37.) Under Plan, Dr. Mehta wrote:
7 Plaintiff does not say what care he requested or if he received responses to his
Inmate Letters.
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—pt lost [sic] to follow-up for 2 months
—exam confirms macular PVR
—no s/s infection
—lOP low but acceptable
—RD/endoph WS discussed
RTC 1 month PO w/ DYK
(Id.)
Dr. Mehta told Plaintiff that he “needed to see the doctor who did the surgery.”
(Doc. 1 at 7.)
On August 27, 2022, Plaintiff sent an Inmate Letter to Defendant, and on September
9, 2022, Defendant sent a response stating Plaintiff “would be seen soon.”8 (Id.) On
September 26, 2022, Plaintiff submitted an Inmate Letter to Defendant “requesting an
appointment.”9 (Id.)
On October 5, 2022, Plaintiff saw Dr. Kunimoto at Retinal Consultants. (Doc. 66-
1 at 29.) Plaintiff reported that his vision had not returned since his last visit, he did not
have pain in either eye, and he denied seeing any new flashes, floaters or distortion. (Id.)
Under Assessment, Dr. Kunimoto noted “[t]otal retinal detachment, right eye.” (Id. at 33.)
In the plan of care, Dr. Kunimoto wrote: “[t]here is a closed funnel RD OD, under silicon
oil. Dismal visual prognosis. Comfort measures. Follow.” (Id.) Dr. Kunimoto said
Plaintiff was to return in 1 year for follow up. (Id.) The doctor informed Plaintiff that
“nothing else could be done.” (Doc. 1 at 7.)
On December 12, 2022, Plaintiff asked to receive a second opinion and was
informed that GEO only contracts with one retinal specialist and Plaintiff has no right to
dictate his healthcare. (Doc. 1 at 7-8.)
8 Plaintiff does not say what he wrote in this Inmate Letter.
9 Plaintiff does not provide any details about this Inmate Letter or say if he received
a response.
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On April 23, 2023, Plaintiff saw Dr. Kunimoto who assessed Plaintiff, in part, with
total retinal detachment, right eye. (Doc. 66-1 at 24.) Plaintiff reported that his vision had
been getting worse since his last visit, he has constant pain and little to no vision in his
right eye, and he denied any new flashes, floaters, or distortion since his last visit. (Id. at
24-25.) In the plan of care, Dr. Kunimoto noted “[t]here is a closed funnel RD OD, under
silicon oil. Dismal visual prognosis. Comfort measures. Follow.” (Id. at 24.)
On May 28, 2024, Plaintiff submitted an HNR requesting a health aide because he
is blind in his right eye. (Id. at 11.) The response from RN Oszust states that Plaintiff had
a pending appointment for a chart review to look into his request. (Id.) A note in Plaintiff’s
prison medical record dated September 26, 2024, states “Health Aid SNO [special needs
order], issued.” (Doc. 66-4 at 26.)
IV. Discussion
A. Serious Medical Need
Although Defendant asserts in her Declaration that “[a]t no time in any encounters
with Plaintiff did he present with a serious medical need,” there can be no real dispute that
Plaintiff’s detached retina condition constituted a serious medical need. Plaintiff’s
detached retina was “worthy of comment or treatment” as revealed by his medical records
showing that Plaintiff had two surgeries in 2022 for his detached retina, multiple follow-
up visits with the specialist(s), and has now been assigned an aide for his right eye
blindness. The record therefore supports that Plaintiff’s retinal detachment and
accompanying blindness constitute serious medical needs. See McGuckin, 974 F.2d at
1059–60. See also Browning v. Snead, 886 F. Supp. 547 (S.D. W.Va. 1995) (a detached
retina is a serious medical condition); Hanson v. Blaine County, No. 1:16-cv-00421-BLW,
2018 WL 3370526, at * 5 (D. Id. Jul 9, 2018) (“[a] detached retina may constitute a serious
medical need.”); Herrera-Cubias v. Fox, No. 08-CV-0517-TUC-AWT, 2012 WL
12539503, at *4 (D. Ariz. Sept. 10, 2012) (“courts have held that a detached retina is a
serious medical need because it causes discomfort, necessitates surgery, and can lead to
blindness”) (citations omitted).
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B. Deliberate Indifference
The second prong in the analysis examines whether Defendant was 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).
The initial inquiry in the deliberate indifference analysis is whether Defendant knew
of Plaintiff’s serious medical need. Evidence in the record supports that Defendant was
aware Plaintiff suffered from a detached retina because she avers that she was aware of
Plaintiff’s history and the referrals for him to see an offsite specialist. (Doc. 47-2 at 3, Def.
Decl. ¶ 5.)
Next, the Court considers Defendant’s response to Plaintiff’s serious medical need.
The evidence reflects that on April 27, 2022, after Plaintiff’s first surgery, Dr. Kunimoto
recommended a second surgery for recurrent retinal detachment in the right eye, and
Plaintiff agreed to the second surgery. Plaintiff began asking on May 9, 2022, for the
second surgery to be scheduled. He was told to use Inmate Letters for these types of
requests, not HNRs. On May 10, Plaintiff sent an Inmate Letter to the HSA, and Defendant
responded on May 13, 2022, that Plaintiff was scheduled for the recommended eye surgery
soon. The record indicates that the second surgery was originally scheduled to take place
around May 16, but did not happen then because of prison transport issues. Plaintiff
inquired via HNRs and Inmate Letters about the second surgery and getting the eye drops
he needed to use before the surgery. On June 13, Defendant responded to Plaintiff’s June
7 Inmate Letter that the surgery was rescheduled.
The second surgery took place June 27, 2022, and Dr. Kunimoto told Plaintiff to
return in 6 weeks to release the NOS bubble, but Plaintiff did not return to Retinal
Consultants by August 8. On August 16, 2022, Plaintiff submitted Inmate Letters to
Medical and the HSA requesting unspecified “care,” and on August 17, Plaintiff felt the
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NOS bubble rupture. Plaintiff saw a nurse on August 18 about the burst bubble, and the
record says he was referred to a provider. On August 24, Plaintiff submitted an HNR to
Defendant about not having the six-week follow up for his surgery, and Defendant
responded on August 25 that Plaintiff was scheduled. That same day, August 25, Plaintiff
saw Dr. Mehta at Retinal Consultants, and Dr. Mehta diagnosed Plaintiff with “[t]otal
retinal detachment, right eye.” (Doc. 66-1 at 37.) When Plaintiff saw Dr. Kunimoto on
October 5, 2022, Dr. Kunimoto told Plaintiff “nothing else could be done,” and his plan of
care was “comfort measures” with “dismal visual prognosis.” (Doc. 1 at 7, Doc. 66-1 at
33.)
As stated, in addressing an individual’s liability, the Court must consider the duties
and responsibilities of the defendant. In her declaration, Defendant fails to describe her
duties and responsibilities. (See Doc. 47-2 at 2-4.) Defendant avers that she did not take
“any affirmative action to deprive Plaintiff of any of his rights”; however, under Ninth
Circuit law, a failure to act is sufficient to support § 1983 liability. (Id. ¶ 7.) See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989); Shaka v. Ryan, CV 10-02253-PHX-SMM (BSB),
2015 WL 926192, at *8 (D. Ariz. March 4, 2015) (explaining why, under Ninth Circuit
law, FHA defendant who responded to the plaintiff’s grievance could be liable). Thus,
there is a question of fact whether Defendant was aware of Plaintiff’s need for surgery and
surgery follow up and whether she was responsible for medical transport and/or scheduling
such that she could have, but failed to act, to ensure Plaintiff timely received specialist-
recommended care. However, there is no dispute that Defendant was not Plaintiff’s
treating provider, and Plaintiff’s vague Inmate Letters requesting “care” after his second
surgery and even his August 24, 2022, HNR about not receiving a six-week follow-up
failed to convey urgency such that Defendant could be found to be deliberately indifferent.
Moreover, Plaintiff saw Dr. Mehta at Retinal Consultants on August 25, 2022, for his
surgery follow-up. Thus, on this record, Defendant’s involvement, which consisted of
responses to Inmate Letters in May and June 2022 and an HNR on August 25, 2022, about
scheduling appointments with the specialist were not egregious enough to rise to deliberate
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indifference. See McGuckin, 974 F.2d at 1060–61 (repeated failure to properly treat a
prisoner or a single failure that is egregious strongly suggests deliberate indifference);
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”).
The last element is whether Plaintiff was harmed by the delays in treatment. The
first delay was the delay in surgery from May 16 to June 27, and the second delay was the
delay in follow up from August 8 to August 25. The above facts do not include claims that
Plaintiff complained of pain or symptoms between May 16 and June 27, and during the
second delay, Plaintiff only inquired about the date of the follow up and he then reported
on August 17 that the “bubble” had ruptured, but he was seen by the specialist on August
25—the day after he sent an HNR to Defendant asking for the follow up. Without more,
there is insufficient evidence that Plaintiff’s current blindness in his right eye was due to
any delay in receiving care and that any delay was attributable to Defendant.
Accordingly, the Court will grant summary judgment to Defendant.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s
Motion for Summary Judgment (Doc. 46), and the Motion is granted.
(2) This action is terminated with prejudice. The Clerk of Court must enter
judgment accordingly.
Dated this 21st day of November, 2025.
Case 2:23-cv-02203-JAT Document 70 Filed 11/24/25 Page 13 of 13