Free Motion for Summary Judgment - 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. Pursuant to this Court's July 20, 2006 Order, Defendants1 move this court to grant their Second Motion for Summary Judgment filed pursuant to Rule 56, Federal Rules of Civil Procedure, and LRCiv Rule 56.1, and dismiss Plaintiff's action in its entirety. Plaintiff fails to state a claim as a matter of law as to the served Defendants. Defendants are also entitled to Eleventh Amendment and Qualified immunity. Defendants' Motion is supported by the following Memorandum of Points and Authorities. DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

Terry Stewart, Thomas Lutz, Jim Taylor, Ronolfo Macabuhay, Harold E. Whitney and Bruce E. Kanter.
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MEMORANDUM OF POINTS AND AUTHORITIES RELEVANT FACTS 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"). (Defendants' Statement of Facts in Support of Motion for Summary Judgment ("SOF") at ¶ 1.) Plaintiff was released from ADC in March 2004, and is currently incarcerated in a federal prison in Atwater, California. (Id.) On March 17, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 ("§ 1983"). (SOF at ¶ 2.) In the sole remaining count of his Complaint--Count I-- Plaintiff alleges that Defendants Dr. Macabuhay, Dr. Whitney and Dr. Kanter were deliberately indifferent to his medical needs when they allegedly refused to send him to an outside specialist for his back pain. (SOF at ¶ 3.) 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.) Plaintiff began complaining of back pain in January 2002. (SOF at ¶ 4.) Plaintiff had a history of back pain and has undergone two previous back surgeries. (Id.) Based on his past experience, Plaintiff believed that he required an outside specialist and additional back surgery to resolve his back pain. (SOF at ¶ 6.) He requested that ADC medical providers send him to an outside specialist. (Id.) Dr. Macabuhay initially treated Plaintiff conservatively with medication and bed rest for his reported back strain. (SOF at ¶ 7.) He prescribed an additional pillow for Plaintiff to place between his legs when sleeping, and a back brace. (Id.) Plaintiff reported that this treatment alleviated some of his pain, stating that the pain was tolerable. (Id.) On March 11, 2002, Plaintiff was taken to medical complaining that the pain had become more severe. (SOF at ¶ 8.) Dr. Macabuhay, believing that Plaintiff had over 2

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exerted himself, ordered x-rays, additional medication, medical ice and a short lay-in order permitting him to remain in his cell. (Id.) On March 18, 2002, Plaintiff, whose lay-in order had expired, reported that he had fallen in his cell and that his pain had become worse. (SOF at ¶ 9.) Dr. Macabuhay reissued the earlier lay-in order, and submitted the matter for authorization of an orthopedic consult. (Id.) On March 26, 2002, Dr.

Macabuhay informed Plaintiff that the consult had been approved. (Id.) Dr. Macabuhay again saw Plaintiff on March 26, 2002. (SOF at ¶ 10.) During this visit he prescribed additional pain medication to help alleviate Plaintiff's pain and advised Plaintff that he would be seeing an orthopedist. (Id.) On April 1, 2002, Plaintiff, who was seeking to renew his prescription for Tylenol #3, was seen by Dr. Kanter. (SOF at ¶ 11.) Dr. Kanter renewed the prescription so that Plaintiff's pain could be controlled. (Id.) On April 5, 2002, Plaintiff returned to medical again complaining of pain. (SOF at ¶ 12.) Before being examined by Dr. Whitney, Plaintiff told him 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.) Plaintiff was seen briefly on April 21, 2002 by Dr. Kanter who ordered an MRI. (SOF at ¶ 13.) 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. (SOF at ¶ 14.) Although Plaintiff stated that he had written to Defendant Taylor about his problem and told "several staff" about his hunger strike, he did not complain to Defendants Lutz or Stewart of his dissatisfaction with his medical treatment until he began the grievance process in 3

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December of 2003. (SOF at ¶ 15.) Deputy Warden Haley responded to Plaintiff's letter by advising 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. (SOF at ¶ 16.) FHA II Taylor is not a physician and does not provide inmate treatment. (SOF at ¶ 29-32.) Upon receipt of Plaintiff's letter, FHA Taylor spoke to Plaintiff's physicians and determined that Plaintiff was scheduled for further medical testing. (SOF at ¶ 33.) Other than these instances, Plaintiff made no further complaints regarding his medical treatment until long after the fact. (SOF at ¶ 15.) The MRI noted in Deputy Warden Haley's response was completed on April 26, 2002. (SOF at ¶ 17.) On April 29, 2002, Dr. Macabuhay, having spoken to the radiologist, recommended that Plaintiff be scheduled for a neurosurgery consult. (SOF at ¶ 18.) The consult was approved that same day by Dr. Baird. (Id.) On May 20, 2002, Plaintiff was sent to St. Mary's Hospital in Tucson, Arizona where he was seen by Dr. Timothy Putty. (Id.) 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.) Upon receipt of Dr. Putty's report, Dr. Macabuhay prepared the paperwork needed to obtain authorization for surgery. (SOF at ¶ 20.) Surgery was approved on June 5, 2002, and performed on June 28, 2002. (Id.) Pursuant to federal regulations, only ADC medical providers and inmates possess information regarding an inmate's medical condition and treatment. (SOF at ¶ 21.) 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. (SOF at ¶ 22.) This is the first time that Defendants Stewart, or Lutz knew that Plaintiff was unsatisfied with the nature of the medical treatment he had 4

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received before his surgery. (Id.) Defendants presume that he pursued this issue through the Director's level of the grievance process. (Id.) Plaintiff asserts that because of Defendants' alleged failure to act, he suffered violations of his constitutional rights, cruel and unusual punishment, and permanent, irreparable physical injury. (SOF at ¶ 23.) 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.) II. LAW A. Summary Judgment Standard

The Court may grant summary judgment if the movant shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FRCP Rule 56(c). The disputed facts must be material. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, the nonmoving party must demonstrate a dispute "over facts that might affect the outcome of the suit under the governing law" to preclude entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The dispute must also be genuine. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The plaintiff must allege specific facts to support the claim. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The moving party need not disprove matters on which the opponent has the burden of proof at 5

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trial. See Celotex Corp., 477 U.S. at 323. Therefore, summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case on which he will bear the burden of proof at trial. Id. B. Defendants' Were Not Deliberately Indifferent to Plaintiff's Medical Needs.

The law governing Eighth Amendment deliberate indifference to medical needs is fairly well established. For liability to attach, a defendant must act with "deliberate indifference to [Plaintiff's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) ("A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need for deliberate indifference to be established"). Deliberate indifference may also occur if "prison officials deny, delay or intentionally interfere with medical treatment." Hutchingson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The Plaintiff must show the delay in treatment was harmful. See id. The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105-06. Inadequate treatment due to malpractice or even gross negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A plaintiff must point to significant probative evidence to support each element of his claim. Celotex Corp., 477 U.S. at 322-23. Thus, to establish a claim in a medical-need case, a prisoner must point to probative evidence in the record that shows: (1) a serious medical need, and (2) deliberate indifference (awareness of need and failure to act). 6

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McGuckin, 974 F.2d at 1059-60. However, the indifference to medical needs must be substantial; inadequate treatment due to negligence, inadvertence, medical malpractice or differences in judgment between an inmate and medical personnel does not rise to the level of a constitutional violation. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). The defendant must act with knowledge of a substantial risk of serious harm to the plaintiff and fail to take reasonable measures to abate that harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The alleged constitutional deprivation must be, "objectively, `sufficiently serious,'" in that the official's "act or omission must result in the denial of `the minimal civilized measure of life's necessities.'" Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) & Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). "Mere negligence is insufficient for liability. . . . [T]he official's conduct must have been `wanton.'" Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002). Most importantly, "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 claim." Franklin v. State of Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff apparently asserts that the failure of Dr. Macabuhay, Dr. Whitney, Dr. Kanter, and FHA Taylor to send him to an outside specialist immediately upon his request when he first presented with back pain in January 2002 amounted to cruel and unusual punishment and evidenced a deliberate indifference to his medical needs. (SOF at ¶¶ 2-3.) The facts, however, evidence that Defendants Macabuhay, Kanter and Whitney acted appropriately in treating Plaintiff's reported back pain. When Plaintiff first reported having pain, Dr. Macabuhay did not ignore his complaints, but he instead developed a 7

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conservative treatment plan to try to alleviate Plaintiff's pain, including prescribing pain medication, bed rest, and the use of various apparatus to stabilize Plaintiff's back. (SOF at ¶ 7.) Plaintiff apparently followed Dr. Macabuhay's instructions and received some relief as he reported that his pain became tolerable. (Id.) In March 2002, Plaintiff apparently aggravated his back resulting in an increase in the amount of pain he was experiencing. (SOF at ¶ 8.) He reported to the medical unit on March 11, 2002, complaining of lower back pain and was examined by Dr. Macabuhay. (Id.) Dr. Macabuhay once again did not ignore Plaintiff's complaints, but ordered testing and prescribed additional treatment in an attempt to again alleviate Plaintiff's pain. (Id.) On March 17, 2002, after Plaintiff had reportedly fallen and suffered an increase in pain, Dr. Macabuhay reissued Plaintiff's lay-in order and sought authorization for an orthopedic consult. (SOF at ¶ 9.) Until Plaintiff could be seen by the orthopedic, Dr. Macabuhay continued to provide medication to Plaintiff for his pain. (SOF at ¶ 9-13.) Dr. Macabuhay continued seeing Plaintiff, seeing him again on March 26, 2002. (SOF at ¶ 10.) Following his examination, Dr. Macabuhay prescribed additional medication and noted in Plaintiff's records that he was awaiting the consult authorization. (Id.) On April 1, 2002, Plaintiff was seen by a nurse who immediately referred him to Dr. Kanter for evaluation. (SOF at ¶ 11.) Noting Plaintiff's condition, Dr. Kanter prescribed additional medication, including Flexeril to reduce muscle spasms and Toredol to reduce pain. (Id.) Dr. Kanter saw Plaintiff again on April 21, 2002, ordered an MRI, and noted that he should be followed by Dr. Macabuhay. (SOF at ¶ 13.) Plaintiff's medical records indicate that Plaintiff was seen at Maricopa Medical Center ("MCC") and that on April 26, 2002, they reported a compression of the right side of the spinal canal that may be causing Plaintiff's pain. (SOF at ¶ 18.) On the morning of April 29, 2002, Dr. Macabuhay spoke to Dr. Lerona of MCC. (Id.) Upon concluding this conversation, he 8

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sought a neurosurgery consult for Plaintiff. (Id.) He received that approval later that afternoon. (Id.) On May 20, 2002, Plaintiff traveled to MCC for his consultation with Dr. Putty. (SOF at ¶ 19.) On May 30, 2002, after consultation with Dr. Putty, Dr. Macabuhay sought authorization for neurosurgery to be performed. (SOF at ¶ 20.) A week later, authorization was provided. (Id.) Plaintiff underwent surgery on June 28, 2002. (Id.) These facts demonstrate that Defendants were not deliberately indifferent to his medical needs. ADC medical staff, including Defendants, attempted to address Plaintiff's complaints and alleviate his pain, beginning conservatively at first, and eventually looking to specialist to assist. Plaintiff's complaint is simply that he disagreed with the treatment plan provided by the doctors, wanting them to start with the most invasive form of treatment without first determining if something less drastic would assist him. It is apparent from this history that none of the physicians who treated Plaintiff were deliberately indifferent to his medical needs. (SOF at ¶ 34.) Dr. Macabuhay initially chose to treat Plaintiff's back pain conservatively. (SOF at ¶ 7.) That treatment appeared to have alleviated some of Plaintiff's pain, making it "tolerable." (Id.) Plaintiff later fell and aggravated his back. (SOF at ¶ 8.) Although Dr. Macabuhay again prescribed a conservative treatment plan, it became apparent that it would not alleviate Plaintiff's pain, resulting in him seeking additional help in determining the cause of Plaintiff's pain, including two outside consults. (SOF at ¶¶ 9, 18.) A difference of opinion about the course of treatment between an inmate and prison medical providers is insufficient to form the basis for a § 1983 claim. Franklin, 662 F.2d at 1344; see also Sanchez, 891 F.2d at 242. While Plaintiff clearly disagreed with the determinations of his treating physicians regarding his need to see an outside specialist for his back pain, he does not allege any other behavior on the part of his medical providers that rises to the level of deliberate 9

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indifference required for a § 1983 claim. Id. As such, Defendants Macabuhay, Whitney, and Kanter are entitled to judgment as a matter of law and Plaintiff's claim against them must be dismissed. C. Plaintiff Fails to Show Affirmative Involvement by the Supervisors he has Named as an Individual Defendants.

Plaintiff further alleges that Defendants Stewart, Lutz and Taylor were deliberately indifferent to his medical needs because they allegedly failed to order Defendants Dr. Macabuhay, Dr. Whitney, and Dr. Kanter to send him to an outside specialist for his back pain sooner. (SOF at ¶ 3.) A complaint against a state officer in his or her individual capacity must be based on that individual's personal involvement; § 1983 liability cannot be based on a theory of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); West v. Atkins, 487 U.S. 42, 54 n.12 (1988); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). To state a valid § 1983 claim against any prison official in their supervisory capacity, a Plaintiff must establish that they directed, participated in, or had knowledge of the alleged misconduct that resulted in the deprivation of a constitutional right. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A supervisor cannot be held personally liable for constitutional deprivations caused by his subordinates absent his participation or direction in the deprivation. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). Plaintiff's mere allegations against Defendants Stewart and Lutz without supporting facts are insufficient to support a claim against them. Plaintiff provides no information that 10

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either Defendant Lutz or Stewart was aware of his medical situation at the time of his treatment, or that either of them failed to act. In fact, Plaintiff did not file a medical grievance until over a year after surgery. (SOF at ¶ 22.) His subsequent complaint about the medical treatment provided is insufficient to support a claim of deliberate indifference against these two defendants. As for his complaint against FHA II James Taylor, he fails to show anything other than he made a complaint to him sometime during the course of his treatment. Defendant Taylor is not a medical professional and was not capable of doing anything except determining whether Plaintiff was being treated for his medical condition. (SOF at ¶¶ 3031.) Upon receipt of Plaintiff's letter and an inquiry by Deputy Warden Haley, Defendant Taylor inquired of Plaintiff's physicians what treatment was being provided. (SOF at ¶ 33.) Having been notified that Plaintiff was scheduled for more testing, including a MRI, Defendant Taylor conveyed that information to Plaintiff and the deputy warden. (Id.) Plaintiff apparently chose not to pursue the matter beyond this inquiry until he began the grievance process in December 2003--more than one year following his back surgery. (SOF at ¶ 22.) Defendants Lutz and Stewart, thus, were not informed of Plaintiff's medical complaints until Plaintiff initiated the formal grievance process in December 2003. (Id.) As such, Defendants could not have possessed the requisite knowledge needed for a medical indifference claim. Farmer, 511 U.S. at 847. Therefore, Defendants Lutz and Stewart are entitled to judgment as a matter of law and Plaintiff's claims against them must also be dismissed. To the extent Plaintiff claims that Facility Health Administrator Taylor was deliberately indifferent to his medical needs, Defendant Taylor, who is not a physician, did not ignore Plaintiff's complaint, but inquired about the nature of Plaintiff's treatment and determined that further testing in the form of an MRI had been ordered to find the cause of 11

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Plaintiff's pain. FHA Taylor's determination that steps were being taken to determine the cause of Plaintiff's pain and that he was being provided appropriate treatment does not constitute deliberate indifference.

D.

The Defendants are Entitled to Eleventh Amendment Immunity.

To the extent that Defendants are being sued in their official capacity, they are entitled to Eleventh Amendment Immunity. A suit against state officials in their official capacities constitutes a suit against the state itself. The Eleventh Amendment to the United States Constitution bars suits brought against a state in federal court, and extends to suits for monetary or retroactive injunctive relief against a state official acting in his official capacity. Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Indeed, state officials sued in their official capacities are not "individuals" for purposes of § 1983 action. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Finally, § 1983 does not abrogate Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 341 (1979). The allegations contained in Plaintiff's Complaint appear to preclude any sort of monetary relief due to Defendants' Eleventh Amendment immunity. Although all Defendants are being sued in only their individual capacity, the nature of Plaintiff's allegations against them appears to be solely in their official capacity. (SOF at ¶¶ 2-3.) Language in Kentucky v. Graham, 473 U.S. 159 (1985), distinguishes between official and individual capacity suits, characterizing official capacity suits as essentially, "another way of pleading an action against an entity of which the official is an agent. . . .[and that] It is not a suit against the official personally, for the real party in interest is the entity." Id. at 165-66. (Internal citations omitted). Plaintiff's suit against these Defendants is essentially 12

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a de facto complaint against the ADC and its supervisory policies. (SOF at ¶¶ 2-3.) Plaintiff makes no allegations of wrongdoing against Defendants Stewart or Lutz other than in their supervisory or official capacities; there are no allegations of action or inaction in their individual capacity. (Id.) As such, to the extent that each Defendant is being sued in their official capacity for monetary or retroactive injunctive relief, Plaintiff's suit must be dismissed.

E.

The Defendants are Entitled to Qualified Immunity.

Plaintiff's claims against all Defendants are barred by the doctrine of qualified immunity. Prison officials are shielded from liability in the performance of discretionary functions which do not violate clearly established statutory or constitutional rights of which a reasonable person should know. Mendoza v. Blodgett, 960 F.2d 1425, 1431 (9th Cir. 1992) (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982), cert. denied, 113 S. Ct. 1005 (1993)). Qualified immunity protects governmental defendants not only from liability, but is "`an entitlement not to stand trial or face the other burdens of litigation.' . . . [It] is `an immunity from suit rather than a mere defense.'" Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The threshold inquiry in a suit asserting qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201. If a constitutional violation has occurred, the court then looks to whether the officer is entitled to qualified immunity in spite of that violation. See Groh v. Ramirez, 540 U.S. 551, 563-64 (2004) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). The answer to this question hinges on whether "`it would be clear to a reasonable officer that his conduct was unlawful'" under the circumstances. Groh, 13

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124 S. Ct. at 1293 (citing Saucier, 533 U.S. at 202). Finally, the Prison Litigation Reform Act mandates that courts dismiss § 1983 conditions cases, like Plaintiff's, where an inmate seeks monetary relief from an immune defendant. 42 U.S.C. § 1997e(c)(1). Taken in the light most favorable to the Plaintiff, the facts do not show that the Defendants' conduct violated a constitutional right. (SOF at ¶¶ 7-20.) Even if the Defendants' conduct infringed upon a constitutional right, it would not be clear to a reasonable officer that their conduct was unlawful. (Id.) Defendants Dr. Macabuhay, Dr. Whitney, and Dr. Kanter were simply exercising their professional judgment when they attempted to treat Plaintiff's back pain with conservative therapy and medication before sending him to an outside specialist for surgery. (SOF at ¶¶ 7-20.) Defendant Taylor relayed information provided to him by medical staff. (SOF at ¶ 22.) And Defendants Stewart and Lutz cannot even be said to have been informed of Plaintiff's medical complaints until more than one year after Plaintiff's June 2002 back surgery. (Id.) As such, all Defendants are entitled to qualified immunity.
III. Conclusion

For the above-stated reasons, Defendants respectfully request that this court grant their Second Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety.

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 14

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Original e-filed this 15th day Of January, 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: 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 #972086

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