Free Statement - District Court of Arizona - Arizona

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Terry Goddard Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Eddie Hatch, No. CV 04-0541 PHX JWS (MS) Plaintiff, v. Terry Stewart, et al., Defendants. Defendants,1 by and through undersigned counsel, submit the following Statement of Facts in support of Defendants' Motion for Summary Judgment:
1.

STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

At the time of the incidents complained of, Plaintiff Eddie Hatch

("Plaintiff"), ADC #040402, was an inmate in the custody of the Arizona Department of Corrections ("ADC"). (See Plaintiff's Redacted Arizona Inmate Management System ["AIMS"] Report [attached hereto as Exhibit 1] (an unredacted copy is available upon request for this Court's in camera inspection.))
Plaintiff was released from ADC in March 2004, and is currently incarcerated in a federal prison in Atwater, California. (Id.) 2. On March 17, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. §

1983 ("§ 1983"). (Dkt. 1.)

Terry Stewart, Thomas Lutz, Jim Taylor, Ronolfo Macabuhay, Harold E. Whitney, and Bruce E. Kanter. All other Defendants have been dismissed from this action.
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3.

In Count I of his Complaint, Plaintiff alleges that Defendants Dr.

Macabuhay, Dr. Whitney and Dr. Kanter were deliberately indifferent to his medical needs when they refused to send him to an outside specialist for his back pain. (Id. at 4-4b.) Plaintiff further alleges that Defendants Stewart, Lutz and Taylor were also

deliberately indifferent to his medical needs because they did not expedite his requests for outside medical referrals and surgery. (Id. at 4c.) 4. Plaintiff began complaining of back pain in January 2002. (Id. at 4;

See Declaration of Dr. Ronolfo Macabuhay ("Macabuhay Declaration"), attached hereto as Exhibit 2, at ¶ 2; See Declaration of Dr. Kanter ("Kanter Declaration"), attached hereto as Exhibit 3, at ¶ 2; See Declaration of Dr. Harold Whitney ("Whitney Declaration"), attached hereto as Exhibit 4, at ¶ 2.) 5. Plaintiff admits that he has a history of back pain and that he has

undergone two previous back surgeries. (Dkt. 1, at 4-4b.) 6. Based on his past experience, Plaintiff believed that he required an

outside specialist and another back surgery to resolve his back pain. (Id.) He requested that ADC medical providers send him to an outside specialist. (Id.) 7. Dr. Macabuhay began treating his back pain conservatively, with rest

and pain medications. (Id. at 4a.; Macabuhay Declaration ¶ 4.) He also prescribed an additional pillow for Plaintiff to place between his legs, and a back brace. (Id.) Plaintiff reported that this treatment alleviated some of his pain. (Macabuhay Declaration at ¶ 4.) 8. On March 11, 2002, Plaintiff reported that the pain had become more

severe. (Id. ¶ 6.) Given Plaintiff's reports, Dr. Macabuhay believed that Plaintiff had over exerted himself. (Id.) He ordered x-rays, additional medication, medical ice, and a short lay-in that would permit Plaintiff to remain in his cell. (Id.) 9. On March 17, 2002, Plaintiff, whose lay-in order had expired,

reported that he had fallen and that his pain had become worse. (Id. ¶ 7.) Dr. 2
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Macabuhay reissued the earlier lay-in order, and submitted the matter for authorization of an orthopedic consult. (Id.) He informed Plaintiff on March 26, 2002, that the consult had been approved. (Id. ¶ 8.) 10. Dr. Macabuhay saw Plaintiff on March 26, 2002, and prescribed (Id.) He further

additional pain medication to help alleviate Plaintiff's pain. advised that Plaintiff would be seeing an orthopedist. (Id.) 11.

On April 1, 2002, Plaintiff, who was seeking to renew his prescription

for Tylenol #3, was seen by Dr. Kanter. (Kanter Declaration ¶ 7.) Dr. Kanter renewed the prescription so that Plaintiff's pain could be controlled. (Id.) 12. On April 5, 2002, Plaintiff returned to medical again complaining of

pain and was seen by Dr. Whitney. (Whitney Declaration ¶ 7.) Before being examined, Plaintiff told Dr. Whitney of the upcoming consult. (Id.) In response to this information, Dr. Whitney advised that his examination would not permit a diagnosis at this time. (Id.) He then proceeded to examine Plaintiff, asking that Plaintiff perform a number of movements in order to note where he may have a problem. (Id.) Dr. Whitney could not determine the cause of Plaintiff's pain. (Id.) 13. Plaintiff was again seen briefly by Dr. Kanter on April 21, 2002.

(Kanter Declaration ¶ 9.) He ordered an MRI to help determine the cause of Plaintiff's pain. (Id.) 14. During this time frame, Plaintiff wrote a letter to Deputy Warden

Haley stating that he believed his medical care was inadequate and that he would engage in a hunger strike until he was sent to an outside specialist. (Affidavit of Aurora Aguilar ("Aguilar Affidavit"), attached hereto as Exhibit 5, at Attachment B at 6.) The only official named in this document is Mr. Taylor. (Id.) 15. Plaintiff made no complaint to either Defendants Lutz or Stewart

regarding his dissatisfaction with his medical treatment until December 2003. (See

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Aguilar Affidavit at Attachment A-ADC Grievance Procedure; Attachment B at 15.) 16. Deputy Warden Haley responded that he had spoken to Defendant

Taylor and that Plaintiff was scheduled for an MRI in the near future and that ADC was attempting to treat Plaintiff's condition as quickly as possible. (Aguilar

Affidavit at Attachment B at 6.) Plaintiff made no further complaints regarding his medical treatment until long after the fact. 17. The MRI noted in Deputy Warden Haley's response was completed

on April 26, 2002. (Macabuhay Declaration ¶ 11; Kanter Declaration ¶ 9; Whitney Declaration ¶ 8.) 18. On April 29, 2002, Dr. Macabuhay, having spoken to the radiologist,

recommended that Plaintiff be scheduled for a neurosurgery consult. (Macabuhay Declaration ¶ 12.) The consult was approved that same day by Dr. Baird. (Id.) Plaintiff's medical records indicate a compression of the right side of the spinal column. (Macabuhay Declaration, Attachment A DOC # 61.) 19. On May 20, 2002, Plaintiff was sent to St. Mary's Hospital in Tucson,

Arizona where he was seen by Dr. Timothy Putty. (Macabuhay Declaration ¶ 13.) Dr. Putty noted that Plaintiff's MRI showed a disk herniation and recommended surgery. (Id.) He further prescribed pain medication to treat Plaintiff's pain until the surgery could be performed. (Id.) 20. Upon receipt of Dr. Putty's report, Dr. Macabuhay prepared the

paperwork needed to obtain authorization for surgery. (Id.) Surgery was approved on June 5, 2002, and performed on June 28, 2002. (Id.) 21. Pursuant to federal regulations, only ADC medical providers and

inmates possess information regarding an inmate's medical condition and treatment. (See Declaration of Ronald Lawrence ("Lawrence Declaration"), attached hereto as Exhibit 6, at ¶ 4.) 4
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22.

On December 9, 2003, nearly a year and a half after he had received

his surgery, Plaintiff initiated the Inmate Grievance System regarding the back pain he suffered and the medical treatment he had received by filing an Inmate Letter attempting to "informally resolve" the issue of his medical treatment. (Aguilar Affidavit, Attachment B at 15.) Assuming Plaintiff proceeded through the Inmate Grievance Process to the Director's level, this would be the first time that Defendants Stewart, or Lutz would have know that Plaintiff was unsatisfied with the nature of the medical treatment he had received before his surgery. Aguilar Affidavit, Attachment A.) 23. Plaintiff asserts that because of Defendants' acts he has suffered (See

violations of his constitutional rights, cruel and unusual punishment, and permanent, irreparable physical injury. (Dkt. 1 at 4c, 5a, 6b, 7.) Plaintiff seeks the
sum of $1,500,000.00 from each of the individual defendants, future medical expenses, costs, Attorneys' fees and any other relief the Court deems necessary and proper. (Id. at 7)

24.

At the times relevant to Plaintiff's complaint, the ADC's three-tiered

administrative remedies procedure was governed by ADC Department Order ("DO") 802. (Aguilar Declaration at ¶ 3.) 25. Department Order 802, Inmate Grievance System, provides that an

inmate may use the grievance process for issues relating to "property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Id. at ¶ 4 & Attachment A.) 26. To begin the grievance process, an inmate must file an "Inmate

Letter" attempting to informally resolve a complaint within 10 working days after he becomes aware of a specific problem. (Id. at ¶ 5.) If the inmate is not satisfied with the response, he may file a formal grievance within 10 calendar days to the 5
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grievance coordinator.

(Id.)

If the inmate is not satisfied with the grievance

coordinator's response, he may file a grievance appeal within 10 calendar days to a higher official, such as the Deputy Warden or the Warden. (Id.) If the inmate is not satisfied with the response to the grievance appeal, he may appeal to the ADC Director within 10 calendar days. (Id.) 27. An inmate's claim is considered exhausted when an appeal is

submitted to the Director and a Response is returned. (Id. at ¶ 6.) Failure to appeal an issue through to the Director's level constitutes a failure to exhaust the administrative remedies provided by the ADC grievance process, pursuant to DO 802. (Id. at ¶ 7.) 28. A copy of DO 802 is available to all inmates in the library of each

unit. (Id. at ¶ 8.) 29. James Taylor has been employed by the Arizona Department of (See Declaration of James Taylor ("Taylor

Corrections ("ADC") since 1995.

Declaration"), attached hereto as Exhibit 7, ¶1.) During the time frame in question in Plaintiff Hatch's Complaint, he was the Facility Health Administrator ("FHA") II at the Arizona State Prison Complex ("ASPC")­Lewis. (Id.) 30. As the FHA II, James Taylor plans, organizes and evaluates the health

care and treatment delivery system for the inmates. (Id. ¶ 2.) He plans on short and long term cycles for scheduling medical providers and makes adjustments to ensure services and coverage are met. (Id.) He makes adjustments to the organizational structure to coordinate the work flow and ensure that all necessary medical needs of the inmates are met. (Id.) He acts on budgetary requests from subordinate

supervisors and justifies requests based on inmate population, quarterly projection needs, and repair or replacement of necessary medical equipment and supplies. (Id.) 31. FHA II James Taylor is not a licensed medical professional and does

not provide medical care or prescribe medical treatment. (Id. ¶ 3.) 6
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32.

Decisions regarding medical issues and treatment are provided by the

attending physician who is called a provider. (Id. ¶ 4.) 33. In 2002, Inmate Hatch sent FHA II James Taylor an inmate letter

concerning the treatment he was being provided to address lower back pains. (Id. ¶ FHA II Taylor spoke to Plaintiff's physicians and discovered that earlier

treatment attempts had not proven fruitful and that Plaintiff was scheduled for an MRI to further determine the cause of his pain. (Id.) He informed Plaintiff and

Deputy Warden Hadley of this upcoming testing. (Id.) He had no further contact with Plaintiff. (Id.) 34. No physician or health administrator was deliberately indifferent to (Macabuhay Declaration ¶ 14; Kanter

inmate Hatch's serious medical needs.

Declaration ¶ 10, Whitney Declaration ¶ 9.) The care provided meet the community standard of care. (Macabuhay Declaration ¶ 15; Kanter Declaration ¶ 11, Whitney Declaration ¶ 10.)

RESPECTFULLY SUBMITTED this 15th day of August, 2006. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 15th day of August, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Eddie Hatch, #47884008 USP - Atwater P.O. Box 019000 #1 Federal Way Atwater, CA 95301 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0505/G#02-10038 #973104