Free Motion for Reconsideration - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA DANNY MILLER, Plaintiff, v. DONALD SLOAN, et al., Defendants. Plaintiff filed his Amended Complaint on April 8, 2005, alleging that Defendants1 were deliberately indifferent to his serious medical needs by: (1) refusing his request for a "no spice" diet to help relieve the symptoms of Irritable Bowel Syndrome; and (2) that Defendants failed to renew his Metamucil and prescription for Bentyl (Dicyclomine) because they were "too expensive." (Dkt. 50.) On December 1, 2005, this Court entered an Order granting the Defendants' motion for summary judgment with respect to Plaintiff's diet issue and the issuance of Metamucil. (Dkt. 87.) The Court denied the Defendants' motion for summary judgment regarding the prescription for Bentyl stating that "whether Plaintiff was denied a Bentyl prescription due to its cost is a factual issue that must be resolved by a jury." (Dkt. 87 at 4.) DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S ORDER NOVEMBER 28, 2005 No. CV 04-19-PHX-DGC (LOA)

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Macabuhay, Pratt, and Sloan.
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Defendants respectfully request this Court reconsider the portion of its order denying the dispositive motion for the following reasons: In a Motion to Dismiss, the Court accepts "all allegations of material fact as true and construe[s] them in the light most favorable to the prisoner." See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). Unlike a Motion to Dismiss, Rule 56(c) of Fed. R. Civ. P. "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (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. Summary judgment is proper, therefore, if the non-moving 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 at trial. See Celotex, 477 U.S. at 323. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate

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specific facts which show there is a genuine issue for trial. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). In his Motion for Summary Judgment, and his Response to Defendants' Cross-Motion for Summary Judgment and Reply in Support of his Motion for Summary Judgment, Plaintiff fails to provide any evidence that the Defendants denied him Bentyl due to its cost. (Dkt. 59, 60, 78, 79.) The Defendants are therefore entitled to a judgment as a matter of law. 1. Cost Is Not an Issue in Prescribing Bentyl

When a Health Care Provider submits a prescription for medication, if the medication is on the ADC formulary,2 it is automatically filled. If the medication is not on the formulary, a non-formulary request is submitted to ADC's Central Office Health Services. (Dkt. 73 at ¶ 85.) Bentyl (Dicyclomine) is an antispasmodic which relaxes the smooth muscles of the gut, helping to prevent or relieve painful cramping spasms in the intestines. (Id. at ¶ 13.) Bentyl is on ADC's formulary list. (Id. at ¶ 86.) Accordingly, as it is a drug already approved for use by ADC, cost is not an issue in prescribing Bentyl. 2. Plaintiff Fails to State a §1983 Medical Claim

In order to assert a proper §1983 medical claim under the Eighth Amendment, Plaintiff must show Defendants acted with "deliberate indifference to his serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference may occur if "prison officials deny, delay or intentionally interfere with medical treatment." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). However, a mere delay in medical care, without more, is insufficient to state a claim against
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A listing of prescription drugs approved for use.

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prison officials for deliberate indifference. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Shapley v. Nevada Bd. Of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff must show the delay in treatment was harmful. Shapley, 766 F.2d at 407. "The indifference to medical needs must be substantial; a constitutional violation is not established by negligence or "an inadvertent failure to provide adequate medical care.'" Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (quoting Estelle, 429 U.S. at 105-06). Plaintiff fails to present evidence that any Defendant acted with deliberate indifference with regard to his prescription for Bentyl. On December 10, 2001, based on Plaintiff's complaint and a physical examination, Defendant Macabuhay provisionally diagnosed Plaintiff with Irritable Bowel Syndrome ("IBS") questionable lactose intolerance. (Dkt. 73 at ¶ 13.) IBS is a gastrointestinal disorder characterized by altered bowel habits and abdominal pains, in the absence of detectable structural abnormalities in the GI tract. The pathogenesis, or the origination and development of the condition, is poorly understood. (Id. at ¶ 14.) Based on his December 10, 2001 diagnosis, Defendant Macabuhay prescribed Metamucil, one tablespoon at night, and Bentyl, 20 mg three times a day, both to be taken for four weeks. (Id. at ¶ 13.) Defendant Macabuhay saw Plaintiff on December 24, 2001, during which time he renewed Plaintiff's prescription for Metamucil, one tablespoon at night, and Bentyl, 20 mg. three times a day, both to be taken for twelve weeks. (Id. at ¶ 20.) Defendant Macabuhay saw Plaintiff on February 19, 2002, for renewal of medications. (Id. at ¶ 21.) It was noted that Plaintiff had 4 refills for Dicyclomine. (Id.) Defendant Macabuhay saw Plaintiff on April 24, 2002, for a question about his meds. (Id. at ¶ 27.) At that time Plaintiff stated that he only had one refill for Dicyclomine. (Id.) Defendant Macabuhay prescribed Dicyclomine 20 mg to be taken three times a day for 100 days. (Id.) The prescription would, therefore expire on August 2, 2002. A Health Needs Request ("HNR") dated May 31, 2002,

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submitted by Plaintiff, reveals that he was receiving Bentyl under this prescription. (Id. at ¶ 29.) Defendant Macabuhay's last renewal of Miller's prescription for Bentyl was on April 24, 2002. (Id. at ¶ 27.) Although Plaintiff argues that Defendant Macabuhay did not order Bentyl for him on June 4, 2002, due to budget cut backs, other than his own self-serving Declaration, Plaintiff fails to provide any evidence of ADC budgetary cutbacks or that he requested a renewal of Bentyl on that date. Additionally, the prescription for Bentyl issued on April 24, 2002 did not expire until August 2, 2002. A review of pharmacy records reveals that Plaintiff received refills of Dicyclomine (Bentyl) 21 capsules (one week supply) on April 10, 19, 26, 2002, May 3, 17, 24, 2002; June 7, 14, 21, 28, 2002; July 5, 12, 19, 26 2002. (Dkt. 73 at ¶ 84.) At no time during Defendant Macabuhay's subsequent consultations with Plaintiff, many of which were for chronic care checks for asthma, did Plaintiff request a renewal of Bentyl. (Dkt. 73 at ¶¶ 34, 35, 36, 38, 40, 45, 55, 64.) Plaintiff admits that he is receiving Bentyl to date. (Dkt. 80 at ¶ 43.) After August 2, 2002, when Plaintiff's Bentyl prescription expired, his focus was his diet, and not whether he was receiving Bentyl. (See Dkt. 60, Declaration of Danny L. Miller, dated May 4, 2005, Exhibits 7, 8, 9, 10, 11, 12.) Despite his alleged need for Bentyl, after August 2, 2002, Plaintiff did not submit an inmate letter regarding medication for IBS until March 7, 2005, which was well after he filed this lawsuit. (Id., Declaration of Danny L. Miller, dated May 4, 2005, Exhibit 14.) Additionally, Plaintiff reported to ADC medical staff that he had mixed results when taking Bentyl. In an HNR dated March 7, 2002, Plaintiff stated that he was prescribed Dicyclomine (Bentyl) approximately two months ago for IBS. (Dkt. 73 at ¶ 22.) He claimed that the medication was not working because he still got stomach pain, diarrhea, headaches and dizziness. (Id.) On March 22, 2002, Plaintiff complained of

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irritable bowel and claimed his meds were not working. (Id. at ¶ 24.) On April 24, 2002, Plaintiff stated that his IBS was worse when he was off the drugs. (Id. at ¶ 27.) Clearly, Defendant Macabuhay cannot be considered deliberately indifferent to Plaintiff's medical needs by failing to prescribe Bentyl, where Plaintiff did not request a prescription renewal and had reported to medical staff that he had mixed results when taking the medication. Other than his own self-serving declaration, Plaintiff fails to set forth any evidence of ADC's alleged budgetary cutbacks or evidence that Defendant Macabuhay denied him Bentyl and did so due to its cost. Plaintiff has provided absolutely no tangible evidence that monetary concerns impacted negatively upon his medical care and has failed to designate specific facts which show there is a genuine issue for trial. It is unclear if Defendants Sloan and Pratt still remain in this matter. Plaintiff's Amended Complaint states that Defendant Sloan answered his grievance and denied him medication for pain. (Dkt. 50 at 4b.) The Amended Complaint further asserts that Defendant Pratt denied his subsequent grievance appeal. (Id.) Defendants Sloan and Pratt are Facility Health Administrators ("FHA") at the Arizona State Prison Complex-Lewis. (Dkt. 73 at ¶¶ 4, 5.) As the FHAs they are not licensed medical professionals and do not provide medical care or prescribe medical treatment. (Id. at ¶ 8.) Decisions regarding medical issues and treatment are provided by the attending physician who is called a provider. (Id. at ¶ 9.) Although Defendant Sloan responded to Plaintiff's inmate grievance in Case No. L15-081-003, this grievance dealt with Plaintiff's request for a "no spice diet." (Id. at ¶ 57.) Plaintiff's grievance did not mention a denial of Bentyl. To assist the ADC Director in responding to Plaintiff's inmate grievance appeal in Case No. L15-081-003, Defendant Pratt reviewed relevant portions of Plaintiff's medical records and reported to the Director accordingly. (Id. at ¶¶ 59, 61.) He did not respond to the grievance appeal

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and the subject of the grievance appeal was Plaintiff's request for a "no spice" diet, not a denial of Bentyl. (Id.) Additionally, as members of the Medical Review Committee ("MRC"), Defendants Pratt and Sloan do not approve or deny medical treatment. (Dkt. 88 at ¶ 3.) The FHA members of the MRC act in an administrative capacity. (Id. at ¶ 3.) They keep the MRC meetings on track, make sure that all necessary paperwork is completed accurately and submitted to ADC's Central Office Health Services. (Id.) The FHA members of the MRC do not vote on medical recommendations and, therefore, do not approve or disapprove medical treatment. (Id.) The FHA members of the MRC cannot override a Health Care Provider's recommended course of treatment. (Id.) Accordingly, neither Defendant Sloan nor Pratt were involved in prescribing, approving, or ordering Bentyl for Plaintiff; nor did they deny Plaintiff's inmate grievance or grievance appeals concerning an alleged denial of Bentyl. Defendants Sloan and Pratt are therefore entitled to judgment as a matter of law. Based upon the foregoing, Defendants submit that they are entitled to summary judgment because Plaintiff fails to make a showing sufficient to establish the existence of an essential element of his case on which he will bear the burden at trial. Plaintiff fails to provide any evidence that Defendants denied him Bentyl to treat his IBS due to ADC budget cutbacks. RESPECTFULLY SUBMITTED on this 21st day of December, 2005. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing electronically filed this 21st day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 21st day of December, 2005, to: _ Danny L. Miller, # 109729 Arizona State Prison Complex ­ Tucson Santa Rita Unit ­ 3-D-17 P.O. Box 24406 10012 South Wilmot Road Tucson, AZ 85734-4406 Plaintiff Pro Per s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0395/RM#G2003-04642

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