Free Motion for Summary Judgment - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 ANNE STRATMAN (022301) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 628-6044 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 Defendants Terry Allred, Susan Buffington, Gene Greeley, Kim Kumar, Michael v. QUIRINO VALEROS, et al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PAUL EUGENE RHODES, Plaintiff, No. CV04-0644 PHX-JAT (MS) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

17 Lesac, Gary Pinkstaff, Richard Pratt, David Rivas, Bruce Shiflet, and Vern Strubeck, by 18 and through counsel undersigned, hereby move for summary judgment on Plaintiff's First 19 Amended Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure on the 20 grounds that he has failed to raise a genuine issue of material fact and Defendants are 21 entitled to judgment as a matter of law. This Motion is supported by the following 22 Memorandum of Points and Authorities, and by the separate Statement of Facts filed 23 herewith. 24 25 I. 26 MEMORANDUM OF POINTS AND AUTHORITIES Brief Synopsis. Paul Rhodes is an inmate incarcerated with the Arizona Department of Corrections

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1 ("ADC"). (SOF at 1.) Since his incarceration in September of 2002, he has been housed 2 at several different prisons, including Arizona State Prison Complex ("ASPC")-Florence, 3 ASPC-Safford, and ASPC-Yuma. (SOF at 2.) Rhodes claims that he received inadequate 4 treatment for his skin condition while he was in prison, constituting deliberate 5 indifference to his serious medical needs in violation of the Eighth Amendment. (Dkt. 1.) 6 In particular, he alleges that Defendants failed to properly monitor and treat his skin 7 condition, and failed to provide a medical consultation to a dermatologist. Id. 8 Defendants Buffington, Kumar, Lesac and Strubeck (the "Provider-Defendants")

9 are prison health care providers who treated Rhodes for his skin condition and his 10 numerous other ailments at various times during his incarceration. Defendants Shiflet and 11 Rivas are deputy wardens at prison units where Rhodes was housed, and they responded 12 to one or more of Rhodes' complaints regarding his skin condition. Defendant Pinkstaff 13 is the Medical Services Administrator for ADC, and as such, responded to several medical 14 grievance appeals submitted by Rhodes to the Director of ADC. Defendants Allred, 15 Greeley and Pratt are Facility Health Care Managers at different prison units where 16 Rhodes was housed, and they responded to one or more of his inmate letters and/or 17 grievances regarding his skin condition. The Defendants other than the Provider-

18 Defendants shall hereinafter be referred to collectively as the "Administrative 19 Defendants." 20 II. 21 22 Facts. A. Rhodes' Medical Care

Rhodes came to ADC on January 9, 2002 and had a physical examination. (SOF at

23 3.) He had a skin infection at that time, which appeared as papular eruptions on his face. 24 (SOF at 4.) His skin condition was initially diagnosed as impetigo, a common and 25 relatively minor bacterial skin infection that produces blisters or sores on the face and 26 hands. Id. He was given a prescription for oral antibiotics. Id. When these antibiotics 2

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1 did not alleviate the problem and Rhodes skin condition seemed to worsen, health care 2 providers suspected boils, and treated Rhodes with antibiotic injections, oral antibiotics 3 and an antihistamine to reduce itching and swelling. (SOF at 6.) Prison health care 4 providers continued to monitor Rhodes skin condition and saw some improvement, but his 5 skin infection was still present. (SOF at 7.) Rhodes' health care providers began to 6 suspect that Rhodes created the condition himself by scratching his skin in response to a 7 tingling sensation in his skin triggered by his liver insufficiency. (SOF at 7.) They 8 continued to prescribe antibiotics, sometimes trying different types of antibiotics in the 9 hope that they would work better than the previous medication. (SOF at 10, 15.) They 10 also continued to prescribe different types of ointments and oral medications to reduce 11 itching and swelling. (SOF 7, 10, 15). 12 Rhodes was seen by a dermatologist on two separate occasions: on June 12, 2003

13 and again on April 7, 2004. (SOF at 12, 16.) Both times, images of Rhodes' skin 14 condition were taken and sent electronically to Dr. Norman Levine, a dermatologist at 15 Carondelet Heath Network in Tucson, AZ, using the telemedicine systemt. Id. Along 16 with the images, ADC sent Rhodes' relevant medical records to Dr. Levine. Id. During 17 the first consultation, Dr. Levine determined that Rhodes skin condition was likely caused 18 by a condition called prurigo nodularis, brought on by his liver problems. (SOF at 13.) 19 This was similar to what one of Rhodes' prison health care provides had suspected. (SOF 20 at 7.) Dr. Levine recommended an anti-imflammatory medication intended to provide 21 Rhodes some relief for the itching, and a skin ointment. (SOF at 14.) He also

22 recommended trying a different antihistamine, as the previously prescribed antihistamines 23 had not been effective. Id. The prison medical providers prescribed medications

24 consistent with all of Dr. Levine's recommendations. (SOF at 14.) 25 Rhodes' second dermatologist consultation occurred almost a year after the first

26 consultation. (SOF at 16.) During the second evaluation, Dr. Levine, noting his previous 3

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1 diagnosis and the various treatments that had so far failed to alleviate Rhodes skin 2 condition, determined that Rhodes skin infection was likely caused by two separate 3 ailments--seborrheic dermatitis, commonly known as dandruff, and folliculitis, a 4 superficial infection of the hair follicle. Id. He recommended that Rhodes continue to use 5 the skin cream he was currently using, but that he try a different antibiotic that is 6 sometimes effective as an alternative to the previous antibiotics. Id. The prison medical 7 providers again prescribed medications consistent with all of Dr. Levine's 8 recommendations. Id. In his consultation report, Dr. Levine noted that if the

9 recommended medications did not improve the situation, he may consider other diagnostic 10 options such as cutaneous lupus erythematosus, a skin disorder that can last for years and 11 be recurring. (SOF at 17.) He noted that a diagnostic biopsy would be needed to confirm 12 this diagnosis. Id. Dr. Levine emphasized that the skin condition was not a "major 13 concern for [him] at this time." Id. 14 During the months after his dermatologist consultation, Rhodes was treated with

15 several different anti-itch medications because he was constantly scratching and 16 excoriating his kin, which only worsens the problem and increases his risk for bacterial 17 infections. (SOF at 18.) Rhodes had a follow-up examination approximately a month 18 after the dermatologist consult. (SOF at 19.) His skin condition was still present. Id. 19 Rhodes insisted that the dermatologist-recommended antibiotic was worsening his skin 20 condition, but Defendant Dr. Lesac, the physician who treated Rhodes on this occasion, 21 did not note any change in his skin condition. Id. Rhodes requested a different antibiotic, 22 Erythromycin, because he had previously had good results with this medication. Id. He 23 received it and, in a follow-up visit on June 16, 2004, his skin condition was improving. 24 (SOF at 19.) 25 On August 3, 2004, a biopsy was taken of one of a portion of one of the sores on (SOF at 20.) The

26 Rhodes' skin as recommended previously by the dermatologist. 4

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1 pathologist noted that Rhodes had an acute (rather than chronic) skin reaction that had 2 localized inflammation and scar tissue that extended to the fat layer of his skin. Id. The 3 pathologist did not note any evidence of cutaneous lupus erythematosus, the alternative 4 diagnosis considered by Dr. Levine. Id. This result indicated that the current treatment of 5 antibiotics and antihistamines was still the proper course of treatment for Rhodes' skin 6 condition. Id. No treatment changes were suggested. Id. After the biopsy, Rhodes 7 submitted numerous HNRs regarding his skin condition and received prescribed 8 medications on numerous occasions. (SOF at 21.) 9 In addition to his skin condition, Rhodes has several other recurring health issues.

10 He has had Hepatitis-C since 1984. (SOF at 3.) He had a liver biopsy in 1998. Id. He 11 has a history using methamphetamine and intravenous heroin. Id. In March 2004, 12 Rhodes started to take medications for his Hepatitis-C. (SOF at 22.) These Hepatitis-C 13 medications can suppress the immune system, and prison health providers monitored 14 Rhodes for this problem. Id. Rhodes' immune system did weaken on the Heptatitis-C 15 treatment, and the doses of medications were appropriately reduced, and eventually were 16 discontinued. Id. When he started treatment for Hepatitis-C, Rhodes already had chronic 17 skin problems. (SOF at 23, 24.) His skin condition persisted during and after Rhodes was 18 on the Hepatitis-C treatment; it did not substantially worsen or improve because of the 19 Hepatitis-C treatment. Id. 20 21 B. Complaints and Responses Regarding Rhodes' Medical Care

The only contact that any of the Administrative Defendants had with Rhodes

22 related to his skin condition was through responses to his inmate letters and grievances. 23 Defendant Allred, who is the Facility Health Care Manager at ASPC-Safford/Ft. Grant, 24 responded approximately six times to complaints from Rhodes regarding his skin 25 condition. (SOF at 32-43.) For example, on July 1, 2003, Rhodes complained that he had 26 been approved for, but had not yet seen, a dermatologist. (SOF at 32.) Mr. Allred 5

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1 explained in a response dated July 14, 2005 that his medical needs for his skin condition 2 were being addressed by prison health care providers and would continue to be addressed 3 as necessary. (SOF at 33.) On July 6, 2003, Rhodes complained that the medications he 4 was taking for his skin condition were not working and his skin condition was getting 5 worse. (SOF at 34.) Allred responded on July 17, 2003, informing Rhodes that he had 6 been seen four times for his skin condition, and each time was prescribed new medication 7 or an existing medication was refilled. (SOF at 35.) He also informed Rhodes that the 8 prison health care unit was aware of his treatment needs and concerns and was attending 9 to them appropriately. Id. Each time Allred responded to Rhodes' complaint, he had 10 investigated the issues involved and provided substantive answers to Rhodes' questions or 11 concerns. (SOF at 32-43.) 12 Defendant Pinkstaff, who is the Health Services Coordinator at ADC's central

13 office, responded (or directed someone to respond on his behalf) at least six times to 14 Rhodes regarding his skin condition issues. (SOF at 44-57.) Among other things,

15 Pinkstaff responded to Rhodes' requests for a dermatologist consultation by explaining 16 that he had already been seen by a dermatologist, and had already been provided 17 medications in accordance with the dermatologist recommendations. (SOF at 47.) When 18 Rhodes continued to complain about his skin condition, Pinkstaff explained to Rhodes 19 that the previous medications, including the dermatologist-recommended medications, had 20 proved ineffective, and that he would soon receive another dermatologist consultation. 21 (SOF at 51.) Pinkstaff explained to Rhodes the process of telemedicine consultation and 22 why it was not necessary to see the dermatologist in person. (SOF at 49.) Since Pinkstaff 23 is not a health care provider and never treated Rhodes himself, all of his responses were 24 based on treating providers' reviews of his medical records, which were undertaken at 25 Pinkstaff's direction in order to adequately respond to Rhodes' complaints. (SOF at 4426 57.) 6

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1

Defendant Greeley, who is the Facility Health Care Manager at ASPC-Florence,

2 responded (or directed someone to respond on his behalf) to Rhodes' complaints 3 regarding his skin condition on at least two occasions. (SOF at 58-61.) The first time, in 4 response to complaint by Rhodes regarding not having been seen by a dermatologist, 5 Greeley explained that his prison health care providers were trained to diagnose and treat 6 many skin conditions; therefore dermatologist consultations are not necessarily required 7 for treating skin conditions. (SOF at 59.) Further, he explained that Rhodes had seen a 8 dermatologist twice, and had been provided treatment in according with his 9 recommendations. Id. He explained that he had a biopsy taken of his skin where it was 10 infected, and the result indicated a nonspecific skin abscess, and no treatment changes 11 were suggested. Id. He further noted that Rhodes was aggravating his skin condition by 12 his constant scratching and picking at his skin. Id. He explained that many skin problems 13 can only be controlled, not treated, and that Rhodes was receiving appropriate treatment 14 for his condition. Id. 15 In another response to a complaint by Rhodes where he requested to be isolated

16 and to have his skin condition treated, he explained bacterial infections do not require the 17 patient to be isolated from all human contact. (SOF at 60, 61.) He also explained Rhodes 18 skin condition was being treated--after a month of oral antibiotics, he had no active skin 19 infections. He still had a mild skin rash, for which treatment was being given. (SOF at 20 61.) He instructed Rhodes not to scratch the rash as it would aggravate his rash, and to 21 maintain proper hygiene. Id. 22 Defendants Shiflet and Rivas each responded on one occasion, and Defendant Pratt

23 responded on two occasions, to complaints by Rhodes regarding his skin condition. (SOF 24 at 62-69.) Shiflet, an Assistant Deputy Warden at ASPC-Safford/Ft. Grant explained to 25 Rhodes that his medical needs have been and are currently being addressed, and that in the 26 future he should raise medical issues by submitting health needs requests rather than using 7

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1 inmate letters. (SOF at 63.) Rivas, an Assistant Deputy Warden at ASPC-Florence, 2 informed Rhodes that he did not have the authority to address medical issues, but 3 explained that he has the right to appeal the grievance he submitted to Pinkstaff to the 4 Director if he so desired. (SOF at 65.) Defendant Pratt, the Facility Health Care Manager 5 at ASPC-Lewis, in response to Rhodes complaint that his grievance were not being 6 responded to, explained to Rhodes that the responses had been sent to the Director's 7 Office for review and approval and would be forwarded to Rhodes as soon as he received 8 them from the Director's office. (SOF at 66-67.) Pratt again informed Rhodes that he had 9 been seen twice by a dermatologist and if no further visible improvement was made in the 10 next few months, he would have further follow-up treatment as recommended by the 11 dermatologist. (SOF at 69.) 12 III. 13 14 Legal Argument. A. Standard for Summary Judgment.

A court must grant summary judgment if the pleadings and supporting documents,

15 viewed in the light most favorable to the non-moving party, "show that there is no genuine 16 issue as to any material fact and that the moving party is entitled to judgment as a matter 17 of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 18 2548, 2552 (1986). The purpose of summary judgment is to isolate, and then terminate, 19 claims and defenses that are factually unsupported. Id. at 323-24, 106 S.Ct. at 2552-53. 20 The burden on the moving party to show that there is no disputed issues of material fact 21 may be discharged by pointing out to the court that there is an absence of evidence to 22 support the nonmoving party's case. Id. 23 24 1. 25 Rhodes claims that the Provider-Defendants violated his Eighth Amendment rights 26 8 Provider-Defendants. B. Rhodes Has Not Shown That Defendants Were Deliberately Indifferent to His Serious Medical Needs.

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1 by not treating his serious skin condition. See Complaint (Dkt 1.) In particular, he alleges 2 that Provider-Defendants failed to properly monitor and treat his skin condition, and that 3 he was never allowed a dermatologist consultation. Id. He further alleges that the 4 treatment he did receive for his skin condition did not work, and that medications that he 5 was prescribed for other ailments made his skin condition worse. (SOF at 31.) To state a 6 42 U.S.C. § 1983 claim under the Eighth Amendment for medical care, a prisoner must 7 show that the defendants acted with "deliberate indifference to his serious medical needs." 8 Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). Deliberate indifference 9 may occur if "prison officials deny, delay or intentionally interfere with medical 10 treatment." Hutchinson v. United States, 838 F.2d 390, 391 (9th Cir. 1988) 11 The indifference must be quite substantial to violate Eighth Amendment. Jones v. The action must rise to the level of

12 Johnson, 781 F.2d 769, 771 (9th Cir. 1986).

13 "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 106. Mere claims of 14 indifference, negligence or medical malpractice do not support an Eighth Amendment 15 violation. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing 16 Estelle, 429 U.S. at 105-06, 97 S. Ct. 291-292. A delay in medical care, without more, is 17 also insufficient to state a deliberate indifference claim. Shapley v. Nevada Bd. of State 18 Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Furthermore, differences in

19 judgment between an inmate and prison medical personnel regarding appropriate medical 20 diagnosis or treatment are not enough to state a deliberate indifference claim. Sanchez v. 21 Vild, 891 F.2d 240, 242 (9th Cir. 1989). 22 In this lawsuit, Rhodes has not presented any evidence to support his deliberate

23 indifference claim. In fact, the record establishes that the medical treatment Rhodes 24 received for his skin condition while he was in prison was at the opposite end of deliberate 25 indifference ­ that Defendants went well beyond the provision of medically necessary 26 care in an attempt to alleviate or reduce Rhodes' skin condition and his complaints 9

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1 relating thereto. 2 First, contrary to Rhodes' allegation that Defendants failed to treat his skin

3 condition, the Provider-Defendants and other prison health care providers saw and treated 4 Rhodes for his skin condition on many occasions ­ at least twenty-five times during the 5 approximate three and a half year period relevant to his Complaint. (SOF at 1-27, 29) On 6 every occasion, prison health care providers evaluated Rhodes' skin and provided some 7 treatment to Rhodes. (SOF at 1-27.) Following nearly every visit, Rhodes was prescribed 8 antibiotics, anti-inflammatory medication, skin ointments, or some combination of these 9 medications. Id. Rhodes does not dispute, and in fact acknowledges, the number of times 10 Provider-Defendants evaluated his skin condition and the number of treatments he 11 received. (SOF at 29.) Standing alone, the sheer number of visits, evaluations, and 12 prescription medications provided to Rhodes during the relevant time period defies any 13 legitimate claim of deliberate indifference. 14 Second, although Rhodes alleges that Defendants never provided him with a

15 dermatologist consultation, the record establishes that Dr. Levine, a dermatologist at 16 Carondelet Heath Network in Tucson, AZ, evaluated Rhodes skin condition on two 17 occasions. (SOF at 12-14, 16.) On both occasions, Dr. Levine evaluated Rhodes

18 condition, considered the previous treatments by ADC, and provided his professional 19 medical assessment of and recommendations for treating Rhodes' skin condition. Id. On 20 both occasions, prison health care providers treated Rhodes consistently with all of Dr. 21 Levine's recommendations. Id. Rhodes' real issue with the dermatologist consults seems 22 to be that they were improperly delayed, and when finally provided, were not adequate 23 since he was not present to discuss his skin condition with Dr. Levine. While its true that 24 the first dermatologist consultation did not occur for months after it was initially 25 requested, this delay does not constitute deliberate indifference. Sanchez v. Vild, 891 F.2d 26 240, 242 (9th Cir. 1989) (mere delay is insufficient to show deliberate indifference). 10

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1 Rhodes was treated numerous times for his skin condition by prison health care providers 2 during the period between when the dermatologist consult was requested and when it was 3 received (SOF at 10). Furthermore, when he did receive the consultation, the

4 dermatologist diagnosed and treated his condition consistently with how the prison heath 5 care providers had been treating it (i.e., determining that it was caused by his liver 6 insufficiency and treating it with antibiotics and skin creams). (SOF at 12-14.) So even if 7 he had seen the dermatologist sooner, his treatment would not have been vastly different. 8 The fact that Rhodes was not present during his dermatologist consultations also

9 does not constitute deliberate indifference to his serious medical needs. ADC provided 10 Dr. Levine sufficient information, including images of Rhodes' skin infection and relevant 11 portions of his medical history, to make a reasoned medical judgment regarding Rhodes' 12 skin condition. (SOF at 12, 16.) Rhodes believes that had he had an opportunity to see a 13 dermatologist face-to-face, his skin condition would be cured. (SOF at 30) ("Normally, 14 you go to a dermatologist, and basically you get a skin condition taken care of. 15 Sometimes you have to go for repeated visits, but basically a dermatologist can take care 16 of a skin condition.") But he has failed to present any evidence to support the conclusion, 17 which goes against the opinions of his medical providers that his condition is treatable, 18 but not curable. (SOF at 26.) The allegations that Defendants failed to treat his skin 19 condition and failed to adequately provide a dermatologist consultation amount to nothing 20 more than a difference of opinion regarding his course of treatment and a refusal to accept 21 that his skin condition is a recurring problem, regardless of the treatment he receives. 22 (SOF at 26.) They are not sufficient to allege an Eighth Amendment violation. 23 Rhodes also alleges that Provider-Defendants were deliberately indifferent because

24 they prescribed him medications for his Heptatitis-C that aggravated his skin condition 25 and that he shouldn't have taken given the fact that he had an existing skin infection. 26 (SOF at 31.) But again, there is no evidence in the record to support this claim. Rhodes' 11

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1 skin infection existed before he began taking Hepatitis-C medications in March 2004; so 2 these medications could not have caused it. (SOF at 23-24.) Neither the initiation, 3 termination, nor the continued use of these medications had any substantial effect on 4 Rhodes' pre-existing skin condition. Id. And even if Rhodes' skin condition did worsen 5 while he took Heptatitis-C medications, there is no evidence that the medication caused 6 the aggravation of his skin condition, which regularly fluctuated in severity. (SOF at 23, 7 25.) Irregardless, the determination to put Rhodes on the Hepatitis-C medication was a 8 measured medical decision that was taken with the knowledge of Rhodes' existing skin 9 condition. (SOF at 24.) Such a decision, even if Rhodes disagrees with it, does not 10 constitute deliberate indifference. 11 Rhodes' skin condition is a minor, recurring infection that fluctuates in severity

12 depending on numerous factors including how much Rhodes aggravates the condition by 13 itching it. (SOF at 25, 28.) It will likely be present in varying degrees throughout 14 Rhodes' lifetime, regardless of the treatment he receives. (SOF at 25, 26.) Although it is 15 unfortunate for Rhodes, it simply does not violate the Eighth Amendment that Defendants 16 did not effectively cure this condition. It is clear, on the record before the Court, that the 17 Provider-Defendants as well as the other prison health providers who treated Rhodes 18 provided adequate medical care to Rhodes for his skin condition. They saw him many 19 times; providing diagnoses, treatment and medications on almost every occasion. They 20 referred him to a dermatologist on two separate occasions and followed all of his 21 recommendations. There is no evidence that any of the Defendants purposefully failed to 22 treat him or delayed his medical care in any respect. Therefore, summary judgment in 23 favor of the Provider-Defendants should be granted. 24 25 2. Administrative Defendants.

Rhodes complained about the medical care he received in prison for his skin

26 condition on numerous occasions by filing inmates letters and grievances to 12

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1 administrative staff at his prison unit. On almost every occasion, he received substantive 2 and detailed responses to these complaints from the Administrative Defendants and other 3 prison staff. Collectively, he received no less than eighteen responses from the

4 Administrative Defendants regarding the medical care he received for his skin condition. 5 (SOF 32-69.) The Administrative Defendants explained to him on numerous occasions 6 that he had seen a dermatologist on two occasions for his skin condition, that he had 7 received all the dermatologist-recommended treatment as well as additional treatment 8 initiated by prison medical staff, and that prison medical care providers were providing 9 him all necessary and appropriate care for his skin condition. Id. The Administrative 10 Defendants often directed prison health care providers to review Rhodes' medical records 11 and investigate his issues so as to provide Rhodes comprehensive responses to his 12 complaints and to satisfy his concerns. (e.g., SOF at 45, 53, 57, 59.) There is no evidence 13 that they purposefully ignored any of his complaints or issues. Therefore summary 14 judgment in favor of the Administrative Defendants is proper. 15 16 C. Rhodes Failed to Allege A Significant Injury.

A delay or failure to treat a medical condition can constitute deliberate medical

17 indifference only if the delay caused harm. Shapley, 766 F.2d at 507. The undisputed 18 material facts support a finding that even if Defendants did delay in giving Rhodes the 19 necessary treatment (i.e., a dermatologist consultation or treatment that cured his 20 infection), Rhodes did not suffer any injury because of that delay. When Rhodes received 21 his second dermatologist consult, the dermatologist stated that Rhodes' skin condition "is 22 not a major concern for me at this time." Furthermore, Rhodes himself acknowledged his 23 skin condition is "minor now." (SOF at 28.) Rhodes has no physical limitations or 24 disabilities resulting from his skin condition. (SOF at 25.) There is no evidence that had 25 Rhodes' received treatment exactly as he wanted, there would be any resulting 26 improvement in Rhodes' skin condition. In fact the evidence demonstrates otherwise: that 13

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1 Rhodes' skin condition is likely to recur regardless of the treatment he receives. (SOF at 2 26.) Because Plaintiff failed to demonstrate any injury resulting from the delay in seeing 3 a dermatologist or in receiving treatment, there can be no constitutional violation, and 4 summary judgment is appropriate. 5 6 7 D. The Administrative Defendants Are Not Proper Defendants In This Lawsuit Because They Did Not Personally Participate in the Alleged Constitutional Violation.

A complaint against a state officer in his or her individual capacity must be based

8 on that individual's personal involvement, because § 1983 liability cannot be based on a 9 theory of respondeat superior. Hansen v. Black, 885 F. 2d 642, 645-46 (9th Cir. 1989). 10 To state a valid § 1983 claim against a defendant in his supervisory capacity, plaintiff 11 must establish that he directed, participated in, or had knowledge of alleged misconduct 12 that resulted in the deprivation of a constitutional right. Taylor v. List, 880 F.2d 1040, 13 1045 (9th Cir. 1989). Supervisory liability exists without such personal participation only 14 if the official implemented a policy so deficient that the policy itself "is a repudiation of 15 constitutional rights" and "is the moving force of the constitutional violation." Hansen, 16 885 F.2d at 646 (citing Thompkins v. Best, 828 F. 2d 298, 303-04 (5th Cir. 1987). 17 The Administrative Defendants are not medical providers and do not have the

18 authority or qualifications to approve or deny medical treatment. The only contact that 19 the Administrative Defendants ever had with Rhodes is in responding to his numerous 20 complaints regarding his medical care. But responding to grievance is not enough

21 "involvement" to state an Eighth Amendment claim. See Olim v. Wakinekona, 461 U.S. 22 238, 249 (1983) (prison official's involvement with processing an appeal is not sufficient 23 involvement to warrant § 1983 liability); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 24 1988) (failure of an official to process an appeal is not sufficient). Rhodes does not claim 25 that any of the Administrative Defendants committed independent constitutional 26 violations. Therefore, the Administrative Defendants are entitled to summary judgment in 14

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1 their favor. 2 3 E. Defendants are Entitled to Qualified Immunity From Suit.

Government officials performing discretionary functions are entitled to qualified

4 immunity from suits for damages if their conduct does not violate clearly established 5 statutory or constitutional rights of which a reasonable person would have known. Fuller 6 v. M.G. Jewelry, 950 F.2d 1437, 1442-43 (9th Cir. 1991). The critical inquiry is whether a 7 reasonable official could have believed that his conduct was lawful in light of clearly 8 established law and the information he possessed at the time. Id. 9 To determine whether an official is entitled to qualified immunity, the first inquiry

10 is to determine whether the facts alleged show the officer's conduct violated a 11 constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the next step is to 12 ask whether the right was clearly established. Id. The right the official is alleged to have 13 violated must be clearly established in a particularized sense: `The contours of the right 14 must be sufficiently clear that a reasonable official would understand that what he is doing 15 violates that right." Id. at 202. (quoting Anderson v. Creighton, 483 U.S. 635, 640 16 (1987)). If the law did not put the officer on notice that his conduct would be clearly 17 unlawful, summary judgment based on qualified immunity is appropriate. Id. 18 Here, Rhodes has not shown that the Defendants violated his Eighth Amendment

19 rights at all. There is no evidence that any of the Defendants ignored Rhodes' skin 20 condition as he alleges, and all of the evidence on the record shows that Rhodes received 21 all necessary and adequate medical care for his skin condition. Moreover, even if Rhodes 22 could show that the Provider-Defendants failed to meet the applicable standard of care, it 23 would not have been clear to a reasonable prison official in their position that their 24 conduct was clearly unlawful. And, Rhodes has not demonstrated that when the

25 Administrative Defendants considered his grievances about his medical care, they could 26 not in good faith rely on the Provider-Defendants' clinical judgment in doing so. 15

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1 Defendants are therefore entitled to qualified immunity from suit. 2 IV. 3 Conclusion For the foregoing reasons, this Court should grant Defendant's Motion for

4 Summary Judgment. 5 6 7 8 9 10 11 12 COPY of the foregoing mailed this 3 day of February, 2006 to: 13 Paul Eugene Rhodes, #163870 14 ASPC-Florence-Central Post Office Box 8200 15 Florence AZ 85232 16 17 s/CBailey Secretary, Attorney General's Office 18 IDS05-0164 / 945614 19 20 21 22 23 24 25 26 16 s/Anne Stratman ANNE STRATMAN Assistant Attorney General Attorneys for Defendants RESPECTFULLY SUBMITTED this 3 day of February, 2006.

TERRY GODDARD ATTORNEY GENERAL

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