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

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Danny M iller, Plaintiff, vs. Donald Sloan, Facility Health Administrator; Ronolfo M acabuhay, Healthcare Provider; and Richard Pratt, M edical Services Administrator, in their individual and official capacities, Defendants.

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No. CV-04-19-PHX-DGC (LOA) ORDER

P ending before the Court are the parties' motions for summary judgment.

D ocs .

##59, 72. For the reasons set forth below, the Court will deny Plaintiff's motion and grant Defendants' motion in part. Background Plaintiff Danny M iller is an inmate at the Arizona State Prison Complex-Lewis. Defendant Ronolfo M acabuhay is a physician who provides medical care t o t he prison's inmates. Defendants Donald Sloan and Richard Pratt are facility health administrators in

charge of organizing and evaluating the prison's healthcare system. P laint iff commenced this action by filing a pro se civil rights complaint against Defendants on January 5, 2004. Doc. #1. Plaintiff alleges in an amended complaint that

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Defendants violat ed his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. D oc. #50. Sp ecifically, Plaintiff alleges that he has irritable bowel

syndrome ("IBS") and that Defendants failed to renew his M etamucil and Bentyl prescriptions because they were too expensive and refused his request for a "no spice" diet because he was not allergic to spices. Id. Discussion I. S ummary Judgment S tandard. Summary judgment is approp riate if the evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is ent it led t o judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines w hich facts are material and "[o]nly disputes over facts that might affect the outcome of t he s uit . . . will properly preclude the ent ry of s ummary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, to preclude s ummary judgment the dispute must be genuine, that is, "the evidence [must be] such that a reasonable jury could return a verdict for the nonmoving party." Id. II. Analysis. A. The Eighth Amendment's Deliberate Indifference S tandard. are

Prison officials "violate a prisoner's Eighth Amendment rights if they

deliberately indifferent to his serious medical needs." Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). Deliberate indifference "may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in w hich p rison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing Estelle, 429 U.S. at 104-05). "The indifference to medical needs must be substantial; a

cons t itutional violation is not established by negligence or `an inadvertent failure to provide adequate medical care.'" Anderson, 45 F.3d at 1310 (quoting Estelle, 429 U.S. at 105-06).
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B.

The Bentyl and Metamucil Prescriptions.

Plaintiff visited Dr. M acabuhay on December 10, 2001, complaining of chronic diarrhea and stomach pain. Dr. M acabuhay diagnosed Plaintiff with IBS and p rescribed

him M etamucil fiber and Bentyl, an abdominal muscle relaxer and pain reliever. D ocs. ##60 ¶¶ 2-5, 73 ¶¶ 3, 11-14.1 prescription On A p ril 24, 2002, Dr. M acabuhay renewed Plaintiff's Bentyl Docs.

and informed him that M etamucil was available at the inmate store.

##60 ¶¶ 7-8, 73 ¶ 27. Plaintiff has testified that Dr. M acabuhay told him t hat he would have to purchase M etamucil from the inmate store because "the medical department was cutting back on expenses." Doc. #60 ¶ 8. Plaintiff has further testified that on June 4, 2002, Dr. M acabuhay refused to renew his Bentyl prescription because it was too expensive. Id. ¶ 11. Defendants dispute this testimony, stating that medicat ion is never denied due to cost and that at no time did Dr. M acabuhay refuse to prescribe Plaintiff Bentyl for any reason. Doc. #73 ¶¶ 87, 90-91. Defendant s further state that, unlike the prescription drug Bentyl, M etamucil generally must be purchased from the inmate store unless it is medically necessary and the inmate is indigent, in which case M etamucil is provided to the inmate at no cost. Docs. ##73 ¶¶ 88-89, 84 ¶¶ 5-6. "Budgetary constraint s . . . do not justify cruel and unusual punishment." Jones

v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (citing Spain v. Procunier, 600 F .2d 189, 200 (9th Cir. 1979)). Given the conflicting testimony above, whether Plaintiff was denied a

IBS is a gastrointestinal disorder characterized by altered bowel habits and abdominal pain. Docs. ##60 ¶ 5, 72 ¶ 14. Defendants admit that IBS can adversely affect a person's quality of life and that Plaintiff suffered from and w as t reat ed for IBS. Doc. #72 ¶¶ 12-16. There is thus no genuine dispute that Plaintiff had a serious medical need. See, e.g., McGuckin v. Sm ith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) ("The 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 s ubs t ant ial pain are examples of indications that a pris oner has a `serious' need for medical treatment."), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
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Bentyl prescrip tion due to its cost is a factual issue that must be resolved by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge[.]"); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (" Is s ues of credibility, including questions of intent, should be left to the jury."). The Court will deny the motions for summary judgment with respect to Plaintiff's claim that he was denied a Bentyl prescription because it was too expensive. With respect to Plaintiff's claim that he was denied M etamucil, however, Plaintiff has presented no evidence that he w as indigent or unable to purchase M etamucil from the inmate store. The Court will grant summary judgment in Defendants' favor with respect

to this claim. See Shapley v. Nev. Bd. of State Prison Comm 'r s , 766 F.2d 404, 408 (9th Cir. 1985) (holding that the imposition of a three dollar fee for each medical visit did not state a claim of deliberat e indifference because the plaintiff did not allege how the fee affected him or that prison officials denied medical care to indigent prisoners). C. The S pecial Diet Request.

On June 4, 2002, Dr. M acabuhay prescribed Plaintiff a "no spice" diet in response to Plaintiff's comp laint that spicy foods exacerbated his IBS. Docs. ##60 ¶¶ 10-11, 73 ¶ 31. On June 10, 2003, Dr. M acabuhay renewed Plaintiff's prescript ion for a "no cayenne pepper or chili p owder" diet. Docs. ##60 ¶ 14, 73 ¶ 45. One week later, Dr. M acabuhay noted in Plaint iff's medical chart that the diet request had not been approved because Plaintiff had not received an allergy test for cayenne or chili peppers, the only s p ices used in the prison's kitchen. Docs. ##60 ¶ 14, 73 ¶¶ 45-47, 57. P laint iff promptly received an allergy test, which came back negative for cayenne and chili peppers. Doc. #73 ¶¶ 48-50. Plaintiff s ubsequently filed grievances regarding the denial of his diet request. Docs. ##60 ¶¶ 16-21, 73 ¶¶ 56-61, 80 ¶¶ 25, 31, 33-34. The grievances were denied because Plaintiff was not allergic to cayenne or chili peppers and his IBS was not a direct result of spices in his diet. Id. Plaintiff was later provided with a "low residue/no spice" diet in August 2004. Doc. #60 ¶ 24.
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Plaintiff contends t hat t he discontinuation of his special diet "is a classic case of deliberate indifference." D oc. #59 at 9-10 (citing Hunt v. Dental Dep't, 865 F.2d 198, 200-01 (9th Cir. 1988)). Defendants argue that not providing Plaintiff with a special diet was a

reasonable response to his medical needs because Plaintiff was not allergic to spices and continued to have diarrhea and s t omach pain even when he was on a no spice diet. Docs. ##72 at 11, 73 ¶ 83. Construed in P laintiff's favor, the evidence shows, at most, that Defendants were negligent in failing continuously to provide Plaintiff with a special diet. M edical st aff

examined and treated Plaintiff numerous times after he was diagnosed with IBS. Doc. #73 ¶¶ 19-46, 49-51, 55. Plaintiff received a test to determine if he was allergic to cayenne and chili peppers ­ the only spices used in the prison's kitchen ­ and was denied a no s p ice diet because his test results were negative. Docs. ##60 ¶ 14, 73 ¶¶ 45-50, 57, 80 ¶ 25. Because Plaintiff cannot show that Defendant s p urposefully ignored or failed to respond to his medical needs, he cannot establish deliberat e indifference. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9t h Cir. 1992) ("A defendant must purposefully ignore or fail to respond t o a p risoner's pain or possible medical need in order for deliberate indifference to be established."), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); Estelle v. Gamble, 429 U.S. 97, 106-07 (1976) ("M edical malpractice does not become a constitut ional violation merely because the victim is a prisoner."); Frost v. Agnos, 152 F.3d 1124, 1130 (9t h Cir. 1998) ("M ere negligence in the provision of medical care . . . does not constitute a constitutional violation."); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) ("While poor medical t reatment will at a certain point rise to the level of constitutional violation, mere malpractice, or even gross negligence, does not suffice."); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) ("`[A] difference of medical opinion as to the need to pursue one cours e of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference.") (citation omitted). The Court will

grant summary judgment in favor of Defendants with respect to Plaintiff's claim that he w as denied a special diet. See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986)
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("Neither precedent nor common sense suggests that delay in providing a special diet arises to the level of deliberate indifference.").2 D. Qualified Immunity. are entitled to qualified immunity because the

Defendants argue that they

constitut ional right in question was not clearly established. Doc. #72 at 12-15. The Court disagrees. "It is settled law that deliberate indifference to serious medical needs of

prisoners violates the Eighth Amendment." Jackson, 90 F.3d at 332 (citing Estelle, 429 U.S. at 104). "For a right to be clearly established it is not necessary that the very act ion in question have previously been unlawful. To define the law in question too narrowly would be to allow [D]efendants `to define away all pot ent ial claims.'" Id. (citations omitted). M oreover, with respect to Plaintiff's claim that he was denied a Bent y l p rescription, it is clear under the law of this Circuit that prisoners cannot be denied treatment due to budgetary cons t raints, the issue on which Plaintiff has raised a question of fact. See Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). The Court will deny Defendant's motion for summary judgment with respect to t his issue. E. Eleventh Amendment Immunity.

Defendants argue that the Eleventh Amendment to t he U nit ed States Constitution bars any monetary claims against them to the extent they have been sued in their official capacities. Doc. #72 at 15 (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974) ("It is . . . well established that even though a State is not a named party to the action, the suit may nonetheless be barred by the Eleventh Amendment.")). argument. See Docs. ##78-79. Plaintiff does not respond to this

The Court finds the argument well-taken and will grant

Defendant's motion for summary judgment on Plaintiff's claims for monetary damages.

Plaintiff's reliance on Hunt is mis p laced because evidence in that case showed that the defendants deliberately failed to provide the plaintiff with any dental care despite the plaintiff's repeated comp laints that the loss of his dentures was causing severe pain and permanent damage to his teeth. 865 F.2d at 200-01.
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IT IS ORDERED that Plaintiff's motion for summary judgment (Doc. #59) is denied. IT IS FURTHER ORDERED that Defendants' cross motion for summary judgment (Doc. #72) is granted in part and denied in part as set forth in this order. The Court will set a pretrial conference by separate order. DATED this 28th day of November, 2005.

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