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

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Brian Eickmeyer, Plaintiff, vs. James Baird; Jabczenski, Donald Sloan;

Defendants.

) ) ) ) ) ) ) Felix) ) ) ) ) )

No. CIV 03-1299-PHX-SRB OPINION AND ORDER

This matter comes before the Court on Defendant Dr. Felix Jabczenski's Motion for Summary Judgment (Doc. 38) and a separate Motion for Summary Judgment (Doc. 42) by Defendants Donald Sloan and Dr. James Baird. The Court now rules on the Motions. I. BACKGROUND Pro se Plaintiff Brian K. Eickmeyer is an inmate of the Arizona Department of Corrections (ADC) who was incarcerated at the Arizona State Prison Complex-Lewis in Buckeye, Arizona at the time of the events in question.1 Prior to his incarceration, Plaintiff sustained injuries to his right shoulder in a vehicular accident. After his arrest and confinement, Plaintiff complained of shoulder pain, received a Magnetic Resonance Imaging

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As of July 5, 2005, Plaintiff is an inmate of the Arizona State Prison Complex­Tucson.
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Study (MRI), and received an orthopedic telemedicine consultation with Defendant Jabczenski of St. Mary's Hospital. Defendant Jabczenski diagnosed Plaintiff with a symptomatic acromioclavicular (AC) separation and recommended AC reconstruction surgery. Defendant Jabczenski reports having discussed the risks and complications of the surgery with Plaintiff at that time. While awaiting surgery, Plaintiff submitted the first of his informal medical grievances to Defendant Sloan, complaining of an absence of medical treatment following a fall on his shoulder on June 30, 2002. Plaintiff also submitted a grievance to Defendant Baird on August 2, 2002, seeking to be seen by a health care provider in order to obtain different pain medication. On August 14, 2002, Defendant Jabczenski performed AC reconstruction surgery on Plaintiff at St. Mary's Hospital without complications. Plaintiff returned to ASPC-Lewis, where he was given two different arm slings, a bed wedge, a waiver permitting him to wear sweatpants and shirts at all times, and pain medication. Unfortunately, the attempted AC reconstruction was determined to be unsuccessful during a post-surgical consultation with Defendant Jabczenski on September 12, 2002, and Plaintiff complained of continuing and increased shoulder pain. Between his surgery on August 14, 2002 and the filing of Plaintiff's first amended complaint on August 5, 2003, Plaintiff submitted at least eighteen grievances or inmate letters to Defendant Sloan. The most frequent subjects of these informal grievances were failure to receive prescribed pain medications, ongoing shoulder pain insufficiently treated by provided pain medications, failure of the attempted AC reconstruction, recurring infections of the incision, failure to receive a heating pad recommended by Defendant Jabczenski, denial of a second medical opinion after Plaintiff allegedly initially rejected such an offer, and failure to receive instructions about proper shoulder exercises after surgery. In addition to his August 2, 2002 informal grievance submitted to Defendant Baird, Plaintiff also appealed one of Defendant Sloan's responses to Defendant Baird on December 28, 2002. Based on the circumstances surrounding the treatment of his shoulder injury, Plaintiff filed suit on July 9, 2003 in the United States District Court and amended his complaint on -2Document 54 Filed 09/02/2005 Page 2 of 16

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August 5, 2003.2 His First Amended Complaint alleges that Defendants Jabczenski, Sloan, and Baird are liable in their individual and official capacities under Section 1983, 42 U.S.C. § 1983, for deliberate indifference to Plaintiff's serious medical needs in violation of Plaintiff's Eighth Amendment rights and violation of Plaintiff's rights to due process and equal protection under the Fifth and Fourteenth Amendments.3 Plaintiff seeks injunctive relief in the form of an order requiring Defendants to obtain and pay for medical treatment to remedy Plaintiff's injuries and compensatory and punitive damages in the amount of $200,000 per defendant, per count. Defendants Jabczenski, Baird, and Sloan each seek summary judgment on Plaintiff's Section 1983 claims of deliberate indifference via motions filed on January 12, 2005 and January 31, 2005. II. A. LEGAL STANDARDS AND ANALYSIS Eighth Amendment Claims The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). In considering a motion for summary judgment, the Court must regard as true the nonmoving party's evidence if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S. Ct. at 2548; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must produce some significant

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Plaintiff's original complaint was dismissed without prejudice and with leave to amend on July 22, 2003.

Plaintiff's First Amended Complaint also included claims for medical malpractice and gross negligence, which were dismissed on March 18, 2004. -3Document 54 Filed 09/02/2005 Page 3 of 16

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probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2513-14 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592 (1968). When a case involves a pro se litigant, the claims and motions filed by the pro se litigant must be liberally construed. See United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). However, pro se litigants are still bound by the rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). To defeat summary judgment, a pro se plaintiff cannot rely only on his allegations but must support his complaint by presenting significant and probative evidence. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984). "A verified complaint may be treated as an affidavit to oppose summary judgment to the extent it is 'based on personal knowledge' and 'sets forth specific facts admissible in evidence.'" Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996). To state a claim for relief under Section 1983,4 a plaintiff must show that (1) he was deprived of a right secured by the Constitution or laws of the United States and (2) that the alleged deprivation was committed under color of state law. Am. Mfrs. Mutual Ins. Co., 526 U.S. 40, 49-50, 119 S. Ct. 977, 985 (1999). With respect to inmate complaints of improper or inadequate medical treatment, government action or inaction only rises to the level of an Eighth Amendment violation where it amounts to "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). Plaintiff must show that he suffered grave deprivation and that Defendants' actions constituted the "wanton infliction of pain." Id. at 105-6, 97 S. Ct. at 292. "Mere 'indifference,' 'negligence,' or
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42 U.S.C. § 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." -4Document 54 Filed 09/02/2005 Page 4 of 16

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'medical malpractice,'" Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980), is insufficient; there must be "more than [an] ordinary lack of due care for the prisoner's interests or safety," Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 1978 (1994) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986)). Even if Plaintiff is able to establish a genuine issue of material fact concerning a violation of the Eighth Amendment, however, Defendants would be entitled to summary judgment upon a showing of qualified immunity. Government officials are generally protected by qualified immunity from civil damages as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1981). The inquiry into entitlement to qualified immunity includes two parts: "`(1) [w]as the law governing the state official's conduct clearly established? (2) Under that law could a reasonable state official have believed his conduct was lawful?'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995)). The "clearly established" inquiry is a particularized one: "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034 (1987). The plaintiff bears the burden of proving that the allegedly violated right was "clearly established" at the time of the alleged violation. Moran v. State of Washington, 147 F.3d 839, 844 (9th Cir. 1998). 1. Defendant Jabczenski

In his Response to the Motion of Defendants Baird and Sloan, Plaintiff concedes that his claims against Defendant Jabczenski are not properly construed as Section 1983 claims under the Eighth Amendment and agrees to summary judgment on those claims. Summary judgment is therefore granted with respect to Defendant Jabczenski.

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Defendant Sloan

Defendant Sloan argues that he is entitled to summary judgment because (1) to the extent that he is sued in his official capacity, monetary damages are barred by the Eleventh Amendment; (2) he was not deliberately indifferent to Plaintiff's serious medical needs, but responded appropriately in his role as an non-physician administrator; and (3) he is entitled to qualified immunity because his conduct did not violate a clearly-established right. a. Absolute Immunity

Plaintiff seeks both monetary damages and injunctive relief. To the extent that Defendant Sloan is sued in his official capacity and for monetary damages, however, he is entitled to immunity from suit under the Eleventh Amendment. See Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997). b. Deliberate Indifference

Defendant Sloan maintains that his actions or lack thereof do not constitute deliberate indifference to Plaintiff's serious medical needs. In support of his deliberate indifference claim, Plaintiff now contends that Defendant Sloan ordered the withholding of or otherwise failed to provide a recommended heating pad, pain medication after Plaintiff's surgery, treatment for Plaintiff's incision infections, instructions concerning physical therapy exercises, and a second opinion concerning Plaintiff's condition. These actions will be considered both individually and in the aggregate. 1) Heating Pad

On October 31, 2002, Plaintiff's surgeon, Defendant Jabczenski, recommended the use of a heating wrap or pad for relief of Plaintiff's shoulder pain. Plaintiff complained to Defendant Sloan on November 18, 2002 and November 30, 2002 concerning his lack of a heating pad. In response to Plaintiff's November 30, 2002 informal grievance, Defendant Sloan informed Plaintiff that heating pads were not permitted. In response to a December 15, 2002 informal grievance concerning the lack of a heating pad, Defendant Sloan indicated on December 31, 2002 that Plaintiff would be permitted to have one, and would be contacted concerning its procurement. On January 17, 2003, Plaintiff stated in a informal grievance -6Document 54 Filed 09/02/2005 Page 6 of 16

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to Defendant Sloan that he had still not received the heating pad, and asked how to obtain one. Just three days earlier, on January 14, 2003, Dr. Ronolfo Macabuhay, one of Plaintiff's medical providers, noted in Plaintiff's chart that the heating pad was "not allowed per security issue," but it is unclear whether Plaintiff was made aware of this decision at that time. Three months later, on March 31, 2003, Defendant Sloan responded to this request by informing Plaintiff that the heating pad would not be permitted after all because of its potentially hazardous nature. Plaintiff wrote to Defendant Sloan concerning the unavailability of the heating pad twice more, once on May 8, 2003 and once on November 21, 2004, and was told that the issue had been addressed previously. Defendant Sloan's behavior with respect to the heating pad does not constitute deliberate indifference to Plaintiff's serious medical needs. There is no evidence that Defendant Sloan was the decisionmaker, rather than the mere messenger, concerning the availability of the heating pad. Furthermore, Plaintiff was receiving pain medication and other treatment at the time the heating pad was denied, and Plaintiff was only prohibited from keeping or using the pad in his cell; he was never denied permission to make appointments to use the pad at the complex medical facility. Defendant Sloan's actions with respect to the heating pad simply do not amount to a grave deprivation or wanton infliction of pain. 2) Pain Medication

Plaintiff maintains that Defendant Sloan is responsible for ordering prescribed medication to be withheld from Plaintiff upon his return from the hospital. Plaintiff sent on August 16, 2002 an inmate letter concerning his failure to receive medications prescribed by Defendant Jabczenski. The only evidence offered in support of allegations that Defendant Sloan ordered them withheld, however, are hearsay statements by ADC medical providers to Plaintiff. These statements are inadmissible. Defendant Sloan has provided his response to Plaintiff's inmate letter ­ that response states that medications were administered as prescribed ­ and the medical records of Plaintiff, which show that Plaintiff received Tylenol 3 from St. Mary's Hospital and that more Tylenol 3 was ordered on August 15, 2002 by Dr. Macabuhay. Absent admissible evidence to the contrary, the Court has no basis on which -7Document 54 Filed 09/02/2005 Page 7 of 16

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to find a genuine issue of material fact about Defendant Sloan's alleged attempts to withhold medication. Plaintiff also argues that Defendant Sloan later failed to order the provision of pain medications after receiving inmate letters from Plaintiff as to the inadequacy of his current medication regimen. Defendant Sloan has provided undisputed evidence that he responded to Plaintiff's complaints of breakthrough pain. On October 21, 2002, Plaintiff complained of pain and sought an appointment with Defendant Jabczenski; in an October 25, 2002 response, Defendant Sloan reminded Plaintiff of his upcoming appointment with Defendant Jabczenski in ten days. In response to Plaintiff's October 31, 2002 complaint of shoulder pain, Sloan explained on November 5, 2002 that Defendant Jabczenski had advised against the administration of narcotic analgesics. Three November 2002 complaints concerning persistent pain following surgery were met with Sloan's response that Plaintiff would be reevaluated and a referral for long-term use of pain medications would be sent to the medical review committee, as well as reminders that Plaintiff had been seen by medical for these complaints more than once in November. After receiving December 2 and 6, 2002 complaints that Plaintiff had not been re-evaluated for long-term pain medications and that his current medications were inadequate, Sloan told Plaintiff that these issues had already been addressed. Plaintiff filed complaints about these same issues on March 18, 2003, March 26, 2003, and April 14, 2003. On April 1, 2003, Defendant Sloan explained to Plaintiff that a non-formulary drug request (NFDR) must be submitted to the central office in order to obtain a non-formulary drug for more than three days at a time and that Plaintiff had just been prescribed Darvocet for three days, as well as Naprosyn (also known as Naproxen) for twelve weeks. Defendant Sloan later informed Plaintiff on May 2, 2003 that his NFDR had been denied by the central office, although Plaintiff had already been informed via his Health Needs Request (HNR) form dated March 22, 2003 that the central office had denied his request for long-term medications and his medical chart noted the NFDR denial on March 31, 2003. Although the record before the Court does not appear to contain Defendant Sloan's response to Plaintiff's April 14, 2003 complaint, Plaintiff has not alleged that he never -8Document 54 Filed 09/02/2005 Page 8 of 16

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received a response, and failure to respond to a single complaint, when multiple other similar complaints were addressed,5 does not constitute deliberate indifference.

In fact, Plaintiff has offered no evidence to suggest that Sloan's actions in responding to Plaintiff's pain complaints rose to the level of deliberate indifference. He responded to each of Plaintiff's complaints after consulting appropriate medical providers and directed further evaluations. He is not a physician, but an administrator, and as such is not qualified to order specific medical care or prescribe medications and must rely on the opinions of medical providers as to appropriate treatment. Failure to provide the precise treatment desired by an inmate simply does not constitute a constitutional violation, see Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (finding that a difference of opinion between inmate and doctor as to treatment does not constitute deliberate indifference as a matter of law), particularly by an individual without the training or authority to treat Plaintiff. 3) Treatment of Infections

Defendant Sloan also allegedly displayed deliberate indifference in responding to Plaintiff's requests for treatment of infections of his shoulder incision. Plaintiff submitted inmate letters concerning recurring infections on November 8, 2002, November 24, 2002, and December 6, 2002. Defendant Sloan's responses explained that Plaintiff would be reevaluated for care of his pain, pointed out that he was treated on November 22 and 25, 2002 for infection of his incision, and finally stated that these issues had already been addressed. Plaintiff was also seen by medical providers for infection on December 9, 2002. Treatment of his infections followed by written responses detailing this treatment does not suggest deliberate indifference on the part of Defendant Sloan. 4) Physical Therapy Exercises

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Plaintiff also complained to Sloan of untreated pain on November 3, 2003 and November 9, 2003, after the filing of his First Amended Complaint, and Sloan responded by stating that Plaintiff had been told he was scheduled and would be seen for these issues. -9Document 54 Filed 09/02/2005 Page 9 of 16

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At a telemedicine consult on September 12, 2002, Defendant Jabczenski recommended that Plaintiff be started on joint exercise in four weeks. Plaintiff contends that he never heard this recommendation nor received any instructions concerning appropriate joint exercises. Defendant Sloan points out that Plaintiff did not raise this issue in his complaint or at his deposition when questioned about the factual bases for his claims. Defendant does not, however, urge the Court to disregard these allegations. Regardless, the evidence supporting these allegations falls far short of establishing the kind of wanton infliction of pain or grave deprivation required to state a constitutional violation. On November 18, 2002, Plaintiff complained to Defendant Sloan that he had never received information about the type of physical therapy exercises he should perform. Defendant Sloan does not appear to address this issue in his December 18, 2002 response, nor does he appear to have responded to Plaintiff's April 14, 2003 complaint that he has not been given an appointment to discuss physical therapy exercises. Mere oversight or neglect, however, is insufficient to support a claim for deliberate indifference, which requires something beyond an ordinary lack of due care for the prisoner's health. Farmer, 511 U.S. at 835, 114 S. Ct. at 1978 (quoting Whitley, 475 U.S. at 319, 106 S. Ct. at 1084). There is no evidence that Defendant Sloan acted with recklessness, "obduracy or wantonness, not inadvertence or good faith error." Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992); see also LeMaire v. Maass, 12 F.3d 1444, 1452 (9th Cir. 1993). When Plaintiff again complained on May 8, 2003 concerning this topic, Defendant Sloan informed him that he would be scheduled for an evaluation. These facts do not create a genuine issue of material fact as to Plaintiff's claim of deliberate indifference against Defendant Sloan.

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5)

Second Medical Opinion

Plaintiff argues that he has been wrongfully denied a second medical opinion from an orthopedic surgeon other than Defendant Jabczenski, and that Defendant Sloan's failure to facilitate such a consultation constitutes deliberate indifference. Through at least October 21, 2002, Plaintiff was requesting to be seen by Defendant Jabczenski. Following Defendant Jabczenski's October 31, 2002 determination that further surgery would be fruitless, however, Plaintiff began submitting complaints concerning Defendant Jabczenski's recommendations. On October 31, 2002, November 8, 2002, and November 18, 2002, Plaintiff sent inmate letters and a grievance to Defendant Sloan seeking further surgical treatment. Defendant Sloan indicated in written responses that Defendant Jabczenski had advised against further surgeries and that Plaintiff had been advised prior to surgery that the procedure might not be successful. Medical records from December 9, 2002 indicated that Plaintiff was offered an "ortho consult­2nd opinion" by Dr. Macabuhay, but that he declined, "stating his lawyer is taking care of this." On March 17, 2003, Plaintiff sought from Defendant Sloan a consultation with a specialist other than Defendant Jabczenski, arguing that he had not declined a second opinion from another specialist, but had merely declined further consultation with Defendant Jabczenski. The May 2, 2003 response to this request from Defendant Sloan relied on medical providers, who stated that Plaintiff had declined a second opinion with a different doctor, because the phrase "second opinion" necessarily means an opinion from another physician. On these undisputed facts, there is no genuine issue of material fact or factual basis from which a reasonable jury could conclude that Defendant Sloan acted with deliberate indifference. Defendant Sloan reacted to Plaintiff's request for a second opinion by consulting with medical providers, relying on their explanation and medical records to determine whether Plaintiff had previously declined such a second opinion, and explaining his position to Plaintiff in a written response. Mere refusal to grant Plaintiff with a desired second opinion does not constitute deliberate indifference, particularly because Defendant Sloan is not a physician but must rely on the medical opinions of others. - 11 Document 54 Filed 09/02/2005 Page 11 of 16

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6)

Aggregate Behavior

Even considering Defendant Sloan's behavior in the aggregate, no genuine issues of material fact have been presented by the evidence before the Court. Defendant Sloan, in his capacity as an administrator, received Plaintiff's inmate letters and grievances, consulted appropriate medical sources, and responded in written form. Plaintiff's inability to achieve his desired medical outcome does not equate to a wanton infliction of pain by Defendant Sloan. Defendant Sloan is entitled to summary judgment in his favor on the issue of deliberate indifference. c. Qualified Immunity

The Court need not reach Defendant Sloan's arguments concerning qualified immunity because there is no genuine issue of material fact as to the existence of a prerequisite constitutional violation. 3. Defendant Baird

Defendant Baird proffers arguments for summary judgment that nearly mirror those of Defendant Sloan. Defendant Baird contends that (1) to the extent that he is sued in his official capacity, monetary damages are barred by the Eleventh Amendment; (2) he was not deliberately indifferent to Plaintiff's serious medical needs, but responded appropriately in his administrative, non-treating role; and (3) he is entitled to qualified immunity because his conduct did not violate a clearly-established right. a. Absolute Immunity

The Court reaches the same result with respect to Defendant Baird as it reached with respect to Defendant Sloan: Defendant Baird is entitled to Eleventh Amendment immunity to the extent he is sued in his official capacity for monetary damages. See Lawrence Livermore, 131 F.3d at 839.

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Deliberate Indifference

Plaintiff argues that Defendant Baird's failure to provide, personally or via institutional practices, policies, and procedures, a heating pad and information concerning appropriate physical therapy exercises constitutes deliberate indifference to his serious medical needs. Communication between Defendant Baird and Plaintiff was limited. On August 2, 2002, Plaintiff filed a grievance concerning the negative side effects and inadequacy of his pain medications and sought other medication. The response of ADC Director Terry Stewart incorporated Defendant Baird's finding, upon review of Plaintiff's medical records, that Plaintiff should directly contact his health care provider for ongoing pain issues. On December 28, 2002, Plaintiff appealed the December 18, 20026 response of Defendant Sloan to Plaintiff's November 18, 2002 request to have his shoulder "fixed" via further surgery. In that response, Defendant Sloan stated that Plaintiff had been advised that "this type of surgery is not very successful." Plaintiff contested this statement to Defendant Baird, arguing that no such statements were ever made, that he did not expect to feel worse after the surgery than before it, and that he could not possibly incur further disability that he was already experiencing. Plaintiff also argues that he never heard Defendant Jabczenski recommend exercises and that no one has ever demonstrated the proper exercises for him to perform. The February 20, 2003 response of ADC Acting Director Charles Ryan incorporated Defendant Baird's report. Defendant Baird stated that he would "direct the Facility Health Administrator, via a copy of this letter, to schedule you with your Health Care Provider (HCP) to discuss exercises." (Defs.' Statement of Facts, Baird Aff., Ex. 4.) Plaintiff apparently contends that he never met with a medical provider to discuss exercises. Plaintiff has not, however, offered any evidence that this unfortunate oversight can be attributed to

Plaintiff apparently received the response dated December 18, 2002 on December 27, 2002. - 13 Document 54 Filed 09/02/2005 Page 13 of 16

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Defendant Baird, and even if it were, there is no evidence that Defendant Baird had the requisite state of mind when he failed to ensure that such an appointment was scheduled. Defendant Baird's only other interaction with Plaintiff's medical treatment consisted of an approval of an NFDR for twelve weeks of Darvocet submitted on December 9, 2002. Thus, Plaintiff's contention that Defendant Baird was involved in any denial of a heating pad is unsupported by evidence. None of Plaintiff's correspondence with Defendant Baird mentions a heating pad, and although Plaintiff contends that the central office where Defendant Baird worked ultimately was responsible for denying the heating pad request, there is no evidence to suggest that Defendant Baird was the individual involved. Any lapses in treatment attributable to Defendant Baird are not accompanied by the reckless, obdurate, wanton, or bad-faith state of mind required to find a constitutional violation. Defendant Baird is entitled to summary judgment on the issue of deliberate indifference. c. Qualified Immunity

The Court need not reach Defendant Baird's arguments concerning qualified immunity because there is no genuine issue of material fact as to the existence of a prerequisite constitutional violation. B. Fifth and Fourteenth Amendment Claims The Court notes that Plaintiff's First Amended Complaint also alleges in Counts IV, V, VI, and VII violations of his Fifth and Fourteenth Amendment rights to due process and equal protection. The Court neglected to direct an answer to these issues in its screening order of March 18, 2004 (Doc. 8), and Defendants therefore have not moved for summary judgment on these claims, which are largely restatements of Plaintiff's deliberate indifference claims. To the extent that the claims are distinct, however, the Court finds that dismissal of these counts for failure to state a claim is appropriate pursuant to the Court's screening power under 28 U.S.C. § 1915A (1996). First, the Court finds that Plaintiff's claims under the Fifth Amendment alone must be dismissed for failure to state a claim upon which relief may be granted, because the actions

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at issue are those of Arizona state officials, and the Fifth Amendment limits actions of the federal government only. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). Next, Plaintiff alleges that Defendants violated the Fourteenth Amendment's equal protection clause by treating him differently from other inmates and the population at large. Inmates, however, are not entitled to treatment identical to that of other inmates merely because of their shared status as inmates. See generally Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366 (1963). A complainant must allege that he is a member of a suspect class, but for purposes of equal protection, prisoners are not a suspect class, Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); McQueary v. Blodgett, 924 F.2d 829, 834-35 (9th Cir. 1991), nor are indigent prisoners, Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct 2671, 2691 (1980); Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999). When a suspect class is not implicated, the Court must determine whether the alleged discrimination is Apatently arbitrary and bears no rational relationship to a legitimate governmental interest.@ Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987) (internal quotations omitted). Here, Plaintiff has failed to allege that he is a member of a suspect class or that Defendants' conduct bore no rational relationship to a legitimate governmental interest. Accordingly, Plaintiff's equal protection claims will be dismissed without prejudice. Plaintiff also alleges that Defendants violated his Fourteenth Amendment due process rights by denying his informal grievances and failing to intervene on his behalf. The mere denial of a grievance, however, does not give rise to the inference of active unconstitutional behavior. Where a defendant's only involvement in the allegedly unconstitutional conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf to remedy alleged unconstitutional behavior does not amount to active unconstitutional behavior for purposes of Section 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Therefore, Plaintiff's due process claims also will be dismissed without prejudice. IT IS ORDERED granting Defendant Jabczenski's Motion for Summary Judgment (Doc. 38) as to Count I of the First Amended Complaint. - 15 Document 54 Filed 09/02/2005 Page 15 of 16

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IT IS FURTHER ORDERED granting the Motion for Summary Judgment by Defendants Sloan and Baird (Doc. 42) as to Counts II and III of the First Amended Complaint. IT IS FURTHER ORDERED dismissing sua sponte Counts IV, V, VI, and VII for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this matter. DATED this 1st day of September, 2005.

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