Free Response in Support of Motion - 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 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA DANNY MILLER, Plaintiff, v. DONALD SLOAN, et al., Defendants. Defendants Macabuhay, Pratt and Sloan, reply in support of their Motion for Summary Judgment as follows: I. Plaintiff's Statement of Facts Defendants object to Paragraphs 9, 10, 16 and 31 of Plaintiff's Statement of Facts ("PSOF"). In PSOF at ¶ 9, Plaintiff misquotes the Defendants' Statement of Facts ("DSOF") at ¶ 15 stating "Appropriate treatment for IBS is symptomatic treatment only, e.g. Bentyl for pain relief, diet, and Metamucil." The DSOF at ¶ 15 does not include the statement "e.g. Bentyl for pain relief, diet, and Metamucil." In PSOF at ¶ 10 Plaintiff states "A low residue diet is recommended for inmates with IBS" citing to Defendant Sloan's admission response no. 3. Defendant Sloan admits that "A low residue diet, according to ADC Medical Diet Guidelines/Manual is DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT No. CV 04-19-PHX-DGC (LOA)

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recommended for inmates with IBS." The ADC Medical Diet Guidelines/Manual is merely a guideline. (See Defendants' Supplemental Statement of Facts ("SSOF") at ¶ 7.) It does not dictate medical treatment. (Id.) In PSOF at ¶ 16, Plaintiff asserts that although Dr. Macabuhay alleges to have ordered Dicyclomine (Bentyl) on April 24, 2002, no order/prescription exists. A review of the pharmacy records clearly indicates that Plaintiff was prescribed Dicyclomine. (See Exhibit 30 attached to Dr. Macabuhay's Declaration, attached as Exhibit A to DSOF.) In PSOF at ¶ 31, Plaintiff incorrectly states that, in response to his inmate grievance in Case No. L15-081-003, Defendant Sloan stated "only if there is a documented allergy to any substance, then it can be eliminated from the diet." The sentence correctly reads "You have been informed that DOC does not recognize preference diets, if there is documented allergy to any substance, then it can be eliminated from the diet." (DSOF at ¶ 57.) Plaintiff objects to the DSOF ¶¶ 23, 28, 32-34, 36-44, 49, 62-64, stating that they are irrelevant and do not address his claims. (PSOF at ¶ 47.) Although the paragraphs cited by Plaintiff do not pertain directly to the treatment of his IBS condition, they do show the amount of care that has been provided to him by Dr. Macabuhay (DSOF ¶¶ 32, 33, 36, 37, 38, 40, 41, 42, 49, 62-64), Plaintiff's failure to comply with his medical needs (DSOF at ¶¶ 23, 28), the numerous opportunities that Plaintiff had to complain about his diet and medications and did not do so (DSOF ¶¶ 34, 36, 38, 40, 43-44), and how quickly Dr. Macabuhay responded to Plaintiff's needs when requested (DSOF at ¶¶ 42, 62-64.). II. Defendants Pratt and Sloan Plaintiff admits that Defendants Pratt and Sloan are Facility Health Administrators ("FHA") responsible for the administrative oversight of health care and

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treatment delivery system for the inmates. (See Plaintiff's Response to Defendants' Cross-Motion for Summary Judgment and Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Summary Judgment, hereinafter "Response" at 1-2.) As the FHAs, Defendants Pratt and Sloan plan, organize, and evaluate the health care and treatment delivery system for the inmates. (DSOF at ¶ 6.) Defendants Pratt and Sloan are not licensed medical professionals and do not provide medical care or prescribe medical treatment. (DSOF at ¶ 8.) Plaintiff incorrectly argues, however, that although Pratt and Sloan are not medical professionals, they "do practice medicine `by proxy' because along with Macabuhay they are members of the MRC and collectively they approve/deny medical policy, procedures, referrals, orders and recommendations issued in inmate health care." (Response at 2.) In support of his argument, Plaintiff submits an outdated ADC Medical Technical Manual pertaining to requests for outside consultations. (Plaintiff's Exhibit A.) As FHAs and members of the Medical Review Committee ("MRC"), Defendants Pratt and Sloan do not approve or deny medical treatment. (DSOF at ¶ 8.) The FHA members of the MRC act in an administrative capacity. (SSOF 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.) Plaintiff also argues that Defendants Sloan and Pratt denied his medical grievances. (Response at 7-8.) In responding to Plaintiff's inmate grievance in Case No. L15-081-003, Defendant Sloan simply relayed to Plaintiff the findings made by the Health Care Provider after reviewing Plaintiff's medical records. (DSOF at ¶ 57.) Defendant Sloan did not deny Plaintiff's grievance. Defendant Pratt never responded

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to an inmate grievance filed by Plaintiff. To assist the ADC Director in responding to Plaintiff's inmate grievance appeal, Defendant Pratt reviewed relevant portions of Plaintiff's medical records and reported to the Director accordingly. (DSOF at ¶ 59.) He did not write the response nor did he deny Plaintiff's inmate grievance appeal. (DSOF at ¶¶ 59, 61.) Plaintiff further argues that Defendants Pratt and Sloan denied him physician prescribed medication for his pain for 3 ½ years. (Response at 8.) FHAs do not prescribe medication and do not dispense medication to the inmates. (DSOF at ¶ 8.) Plaintiff appears to argue that Defendant Sloan only approved him for an IBS diet only because Plaintiff threatened him with a restraining order on September 24, 2004. (Response at 5.) However, Defendant Sloan advised Plaintiff on September 28, 2004, that the "Food Services Liaison advises that you received your diet card on September 24, 2004. You should be receiving your diet now. If you are not, please kite Ms. Suwinski, Food Services Liaison regarding this." (DSOF at ¶ 78.) At no time were Defendants Sloan and Pratt deliberately indifferent to Plaintiff's serious medical needs. III. Defendant Macabuhay Plaintiff alleges that although Dr. Macabuhay prescribed him Dicyclomine (Bentyl) and Metamucil on December 10, 2001, he failed to prescribe these medications for Plaintiff after that date. (Response at 9.) Plaintiff asserts that on March 30, 2002, April 9 and 24, 2002, May 31, 2002, and June 4, 2002, he repeatedly informed Dr. Macabuhay that he was not receiving his medication and was in pain. (Id.) On March 30, 2002, however, Plaintiff submitted an HNR stating that he did not receive his medication at pill call on March 29, 2002. (DSOF at ¶ 25.) He was advised that he would be seen by the Provider. (Id.) Plaintiff was seen by the Provider on April 9, 2002. (DSOF at ¶ 26.) Contrary to his assertion, Plaintiff did not

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see Dr. Macabuhay on April 9, 2002. Plaintiff saw Dr. Whitney on that date who prescribed Bentyl and Metamucil for four weeks. (Id.) On April 24, 2002, Dr. Macabuhay prescribed Dicyclomine 20 mg to be taken three times a day for 100 days. (DSOF at ¶ 27.) In a HNR dated May 31, 2002, Plaintiff stated that he went to pill call to pick up his Dicyclomine but it was not available. (DSOF at ¶ 29.) He claimed this was the third time in six weeks it was not there. (Id.) He was advised that his chart would be reviewed by the Provider for his medicine. (Id.) Just because Plaintiff was advised that his file would be reviewed by a Provider does not mean that Dr. Macabuhay would be that Provider. There is more than one Provider at the unit. On June 4, 2002, Dr. Macabuhay saw Plaintiff regarding his HNR dated June 3, 2002 requesting to see the Doctor about his diet. (DSOF at ¶ 31.) On June 4, 2002, Plaintiff was still under the 100 day prescription for Dicyclomine issued by Dr. Macabuhay on April 24, 2002. Contrary to Plaintiff's assertions, at not time did Defendant Macabuhay refuse to renew inmate Miller's prescription for Bentyl (Dicyclomine) due to its cost or for any other reason. (DSOF at ¶ 90.) When a Provider submits a prescription for medication, if the medication is on the ADC formulary it is automatically filled. (DSOF at 85.) Bentyl (Dicyclomine) is on ADC's formulary list. (Id.) Defendant Macabuhay's last renewal of Miller's prescription for Dicyclomine was on April 24, 2002. At no time during his subsequent consultations with Plaintiff did Plaintiff request a renewal for Dicyclomine. (DSOF at ¶ 90.) The dates in the "Refill Due" column of Plaintiff's pharmacy records for Dicyclomine reveal the dates that refills of his prescription were filled. (SSOF at ¶ 4.) Once a date has been entered into the computer, the prescription will be filled unless it is discontinued by the Health Care Provider before being filled by the pharmacy. (Id.) At the Lewis Complex,

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security officers deliver the medication right to an inmate's bed. (Id.) There is no need for the inmate to pick up the medication. (Id.) Plaintiff argues that there is no evidence to support Dr. Macabuhay's renewal of a no spice diet on June 10, 2003. (Response at 10.) The medical note for Plaintiff's visit with Dr. Macabuhay on June 10, 2003, specifically states "His med diet for no cayenne pepper or chili powder diet was renewed." (DSOF at ¶ 45.) Plaintiff's medical record also reveals on June 18, 2003, that Defendant Macabuhay noted that the diet order was not approved. (DSOF at ¶ 46.) Plaintiff argues that if the MRC denied the diet renewal, then Dr. Macabuhay, being on the MRC denied his own request. (Response at 10.) Plaintiff's argument lacks merit. There are five Health Care Providers on the MRC at the Arizona State Prison Complex-Lewis. (SSOF at ¶ 1.) As a member of the MRC, Dr. Macabuhay brings forth a recommendation, i.e., special diet request, for discussion with the other health care providers. (SSOF at ¶ 2.) After discussion, his recommendation may be denied because the recommendation is either not available or has been determined not to be medically necessary by the majority of the other Health care Providers on the MRC. (Id.) Accordingly, Dr. Macabhuay did not deny Plaintiff's diet renewal. Plaintiff next argues that Dr. Macabuhay claims he wanted a no spice diet because he claimed to be allergic to the spices. (Response at 10.) The record clearly reveals that Plaintiff was issued a no spice diet for his diagnosis of IBS. (DSOF at ¶ 31.) After his diet renewal was denied, Plaintiff claimed an allergy to cayenne and chili powder. (DSOF at ¶¶ 46, 48.) Pursuant to ADC policy at the time, allergies needed to be documented with RAST testing, which was done. (DSOF at ¶ 48.) The test did not reveal any allergies. (DSOF at ¶ 51.) Plaintiff states that the medical note of July 31, 2003, specifically states that Plaintiff said he wasn't allergic to the spices. (Response at 10.) The medical note of July 31, 2003, is merely referring to the

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outcome of the RAST (allergy) testing done on July 9, 2003. (DSOF at ¶¶ 51, 55.) Furthermore, at no time did Defendant Macabuhay deny or refuse to prescribe Plaintiff an IBS diet for non-medical reasons, i.e. cost. (DSOF at ¶ 91.) At no time did any ADC official encourage, direct, or coerce Defendant Macabuhay into limiting the amount of medical diets ordered for non-medical reasons. (Id.) Additionally, the ADC does not have a prescribed IBS diet, although the ADC diet manual states that a low residue diet can be given to chronic IBS patients to decrease the fiber content of the diet. (DSOF at ¶ 73.) The ADC diet manual is merely a reference guide. (SSOF at ¶7.) It does not dictate medical treatment. (Id.) The low residue diet is more appropriate for patients with granulomatous GI disease and patients with diverticular problems. (DSOF at ¶ 73.) Plaintiff also argues that Defendant Macabuhay recommended that he take Metamucil but because "ADC was cutting back on expenses Plaintiff would have to purchase it." (Response at 3, 10-11.) Metamucil is not a prescription drug. (DSOF at ¶ 88.) It is an over the counter item available at the inmate store. (Id.) If an inmate needed Metamucil for immediate medical needs, it would be provided by the Health Unit. (DSOF at ¶ 89.) After the initial disbursement, pursuant to ADC policy, the inmate would have to buy it from the inmate store, unless he was indigent. (DSOF at ¶ 89; SSOF at ¶ 5.) The purpose behind the one time order is so the inmate knows what to purchase and how to take the medication. (SSOF at ¶ 5.) Also, since the inmates are only allowed to shop one day per week, if medical provides the item the first time, the inmate will not have to wait to begin his therapy. (Id.) Although an "over the counter" medication may only be prescribed one time, many times it may be given to an inmate if the medication is being recommended for a short period of time or to see if the medication is effective. (SSOF at ¶ 6.) If there is a determination that an "over the counter" medication is appropriate for continued use,

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and the inmate is not indigent, he will be told to buy the medication himself for continued use should he so desire. (Id.) Plaintiff fails to provide any evidence that he was unable to purchase or obtain Metamucil. Plaintiff argues that not providing him with a medical diet after June of 2003, until August, 2004, was not a reasonable medical response. (Response at 11.) However, prior to this period when he was on a no-cayenne powder or chili powder diet, he continued to have complaints of diarrhea and pains. (DSOF at ¶ 83.) Although Plaintiff argues that Dr. Macabuhay's actions were not reasonable, he fails to offer evidence to the contrary. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis or treatment are not enough to state a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) Furthermore, because Plaintiff continued to experience problems associated with IBS, Dr. Macabuhay approved Dr. Vinluan's request for Plaintiff to receive a low-residue diet on August 18, 2004. (DSOF at ¶ 74.) At no time was Dr. Macabuhay deliberately indifferent to Plaintiff's serious medical needs. IV. Qualified Immunity Contrary to Plaintiff's assertions, the Defendants do not admit that a low residue diet is appropriate treatment for IBS. (Response at 12.) And, there is no evidence that medical treatment provided to Plaintiff is conditioned on his ability to pay. (Id.) There is no indication that Plaintiff was confined under conditions posing a risk of "objectively, sufficiently serious" harm and that the Defendants had a "sufficiently culpable state of mind." Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). Plaintiff was seen by medical staff, including Defendant Macabuhay, on a regular basis for his various medical ailments, which included his gastrointestinal problems. Plaintiff was prescribed medications to help alleviate his gastrointestinal

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problems, various lab work was ordered, and Plaintiff was tested to determine if an allergic reaction was the origin of his problems. (DSOF at ¶¶ 13, 48, 84.) Defendants Pratt and Sloan do not prescribe medications. (DSOF at ¶ 8.) The Defendants' conduct did not violated Plaintiff's constitutional rights. Should the Court determine that Plaintiff's Eighth Amendment rights were violated, Defendants are entitled to qualified immunity. RESPECTFULLY SUBMITTED on this 19th day of September, 2005. TERRY GODDARD Attorney General s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL and One copy of the foregoing filed this 19th day of September, 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 19th day of September, 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 923486

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