Steven T. Bernal v. NaphCare, et al.

1 WO KEB — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Steven T. Bernal, No. CV-25-01631-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 NaphCare, et al., 13 Defendants. — 14 — 15 Plaintiff Steven T. Bernal is confined in the Arizona State Prison Complex (ASPC)- 16 Yuma. After filing a Complaint in the Superior Court of Yuma County, Arizona, he filed 17 an April 15, 2025 First Amended Complaint against NaphCare, Marcella Meza, Jaci 18 Brown, Diana Curd, Carli Myers, Jennifer Wanders, Brin Sidi, and Centurion of Arizona. 19 On May 13, 2025, Defendants Sidi, Meza, and Myers (“the Removing Defendants”) filed 20 a Notice of Removal, removing the case to this Court. In a July 1, 2025 Order, the Court 21 found the Removing Defendants had timely and properly removed this case and dismissed 22 the First Amended Complaint because Plaintiff had failed to state a claim. The Court gave 23 Plaintiff 30 days to file a second amended complaint that cured the deficiencies identified 24 in the Order. 25 On July 2, 2025, Plaintiff filed a Second Amended Complaint. In an August 26, 26 2025 Order, the Court dismissed the Second Amended Complaint because Plaintiff had 27 failed to state a claim. The Court gave Plaintiff 30 days to file a third amended complaint 28 that cured the deficiencies identified in the Order. 1 On September 3, 2025, Plaintiff filed a Third Amended Complaint (Doc. 7). The 2 Court will dismiss the Third Amended Complaint and this action. 3 I. Statutory Screening of Prisoner Complaints 4 The Court is required to screen complaints brought by prisoners seeking relief 5 against a governmental entity or an officer or an employee of a governmental entity. 28 6 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 7 has raised claims that are legally frivolous or malicious, fail to state a claim upon which 8 relief may be granted, or seek monetary relief from a defendant who is immune from such 9 relief. 28 U.S.C. § 1915A(b)(1)–(2). 10 A pleading must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 12 not demand detailed factual allegations, “it demands more than an unadorned, the13 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 14 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Id. 16 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, — 18 — 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 19 that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679 . Thus, although a plaintiff’s specific factual 23 allegations may be consistent with a constitutional claim, a court must assess whether there 24 are other “more likely explanations” for a defendant’s conduct. Id. at 681 . 25 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 26 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338 , 342 27 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent — 28 — 1 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 2 U.S. 89 , 94 (2007) (per curiam)). 3 If the Court determines that a pleading could be cured by the allegation of other 4 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 5 of the action. See Lopez v. Smith, 203 F.3d 1122 , 1127-29 (9th Cir. 2000) (en banc). 6 II. Third Amended Complaint 7 In his one-count Third Amended Complaint, Plaintiff raises an Eighth Amendment 8 medical care claim. He names as Defendants Centurion of Arizona (“Centurion”), 9 NaphCare, ASPC-Yuma Director of Nursing Carli Myers, Former Directors of Nursing 10 Jennifer Wanders and Jaci Brown, Assistant Director of Nursing Marcela Meza, Facility 11 Health Administrator Brin Sidi, and medical provider Diana Curd. He seeks monetary and 12 injunctive relief. 13 Plaintiff is 53 years old, is obese and subject to heart attack, and has high blood 14 pressure, high cholesterol, type II diabetes, bad knees, a bad hip, and a family history of 15 sleep apnea. He alleges Defendants Meza and Curd have “intentionally” “refused to treat” 16 him, though he has “submitted repeated requests.” He claims “the way [Defendants] Meza 17 and Curd respond to inmates[’] request for medical treatment is by delaying and denying 18 medical treatment,” resulting in “permanent injury and death.” Plaintiff alleges that when 19 he “and others” “informed” Defendant Brown, she “refused to order treatment as a 20 consequence for not treating by delaying [and] denying inmates.” 21 Plaintiff claims he asked for Ozempic, which is “used to treat sleep apnea, type II 22 diabetes, and obesity,” and states that for the last four years, he has “asked numerous times 23 for a CPAP machine” for his sleep apnea, but “they refused to give” these to him. 24 According to Plaintiff, “instead of treating [him],” Defendants Meza, Brown, Curd, 25 Myers, Wanders, and Sidi, “acting pursuant to [NaphCare[’s] and Centurion’s] policies 26 [of] delay[ing] and deny[ing] inmates treatment for their serious medical needs,” have 27 “covered up for” Defendants Meza and Curd. He states that “they” have disregarded 28 inmate complaints and grievances regarding Defendants Meza’s and Curd’s alleged denial 1 of treatment for the serious medical needs of “inmates like [him].” He also claims “they” 2 have been “falsifying and/or destroying . . . medical records, with the help of other nurses 3 and staff.” Plaintiff states that when he and other inmates “brought this to the attention of 4 [Defendant] Brown,” she “refused to act and order treatment,” even though “she has the 5 duty and authority to act.” He also alleges Defendants Wander, Myers and Sidi “did 6 exactly what [Defendant] Brown has done and refused to order treatment” while “rubber 7 stamp[ing Defendants] Curd, Meza, and Brown.” 8 Plaintiff claims “they” acted with deliberate indifference to his serious medical 9 needs, “in violation of the mandatory federal permanent injunction.” Further, allegedly, 10 “they” subsequently “submitted false reports of compliance.” 11 As his injury, Plaintiff states that “because of this policy[,] custom[,] and 12 tra[di]tion,” he experiences loud snoring, has difficulty staying asleep, and stops breathing 13 and gasps for air during sleep. He also claims he has dry mouth upon awakening, morning 14 headaches, “excessive daytime sleep[i]ness,” difficulty concentrating and staying awake, 15 fatigue, and irritability. He additionally states that the lack of treatment for his sleep apnea 16 has caused him high cholesterol, high blood pressure, and type II diabetes. 17 III. Failure to State a Claim 18 A. Defendants NaphCare and Centurion 19 To state a claim under § 1983 against a private entity performing a traditional public 20 function, such as providing medical or dental care to prisoners, a plaintiff must allege facts 21 to support that his constitutional rights were violated as a result of a policy, decision, or 22 custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., — 23 — 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 24 1997). A plaintiff must allege the specific policy or custom and how it violated his 25 constitutional rights. A private entity is not liable simply because it employed individuals 26 who allegedly violated a plaintiff’s constitutional rights. See Tsao, 698 F.3d at 1139 . 27 Plaintiff claims Defendants NaphCare and Centurion each have a policy “[of] 28 delay[ing] and deny[ing] inmates treatment for their serious medical needs.” Plaintiff does 1 not sufficiently describe this policy or how it violated his constitutional rights. In support 2 of his claim, Plaintiff includes with the Third Amended Complaint a list of cases that, 3 according to Plaintiff, are either “awaiting trial,” “awaiting status conference,” have 4 “settled,” or are “pending summary judgment.” (Doc. 7 at 4–10). He states these cases 5 “sufficiently show[] that [Defendants] NaphCare [and] Centurion have the 6 policy/practice/custom of delaying treatment for th[ei]r serious medical needs.” (Id. at 10.) 7 However, Plaintiff does not identify when these actions were filed, what types of claims 8 were asserted, the filing in each case to which he is directing the Court’s attention, or the 9 nature of Centurion’s or NaphCare’s involvement in each case. Absent more information 10 about the content and timing of these allegedly related claims, Plaintiff cannot rely on them 11 to support his claim that his constitutional rights were violated as a result of a policy, 12 decision, or custom endorsed by NaphCare or Centurion. 13 Accordingly, the Court finds Plaintiff has failed to state a claim against Defendants 14 NaphCare and Centurion, and the Court will dismiss them. 15 B. Remaining Defendants 16 Not every claim by a prisoner relating to inadequate medical treatment states a 17 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 18 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 19 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 20 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 21 Cir. 2006). 22 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 23 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both 24 know of and disregard an excessive risk to inmate health; “the official must both be aware 25 of facts from which the inference could be drawn that a substantial risk of serious harm 26 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 27 Deliberate indifference in the medical context may be shown by a purposeful act or failure 28 to respond to a prisoner’s pain or possible medical need and harm caused by the 1 indifference. Jett, 439 F.3d at 1096 . Deliberate indifference may also be shown when a 2 prison official intentionally denies, delays, or interferes with medical treatment or by the 3 way prison doctors respond to the prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 4 97 , 104–05 (1976); Jett, 439 F.3d at 1096 . 5 Deliberate indifference is a higher standard than negligence or lack of ordinary due 6 care for the prisoner’s safety. Farmer, 511 U.S. at 835 . “Neither negligence nor gross 7 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 8 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458 , 9 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” 10 do not support a claim under § 1983). “A difference of opinion does not amount to 11 deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 12 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to 13 state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of 14 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be 15 substantial. The action must rise to a level of “unnecessary and wanton infliction of pain.” 16 Estelle, 429 U.S. at 105 . 17 Plaintiff’s allegations against Defendants Meza, Curd, Brown, Wanders, Myers, and 18 Sidi are too vague and conclusory to state a claim. Although pro se pleadings are liberally 19 construed, Haines v. Kerner, 404 U.S. 519 , 520–21 (1972), conclusory and vague 20 allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, — 21 — 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights 22 complaint may not supply essential elements of the claim that were not initially pleaded. — 23 — Id. Plaintiff fails to allege sufficient facts to show what each individual Defendant did, or 24 failed to do, that constituted deliberate indifference or otherwise violated his constitutional 25 rights. His frequent use of the word, “they,” and concurrent references to multiple 26 Defendants make it unclear what facts are attributable to whom in his allegations. See 27 Marcilis v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal 28 of Bivens complaint that referred to all defendants “generally and categorically” because 1 the plaintiff had failed to “‘allege, with particularity, facts that demonstrate what each 2 defendant did to violate the asserted constitutional right.’”) (quoting Lanman v. Hinson, — 3 — 529 F.3d 673, 684 (6th Cir. 2008))); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 4 2008) (“Given the complaint’s use of either the collective term ‘Defendants’ or a list of the 5 defendants named individually but with no distinction as to what acts are attributable to 6 whom, it is impossible for any of these individuals to ascertain what particular 7 unconstitutional acts they are alleged to have committed.” ) 8 Further, Plaintiff alleges no sufficiently specific facts to support a conclusion that 9 any Defendant was aware of and disregarded a substantial risk of serious harm to Plaintiff. 10 For example, he fails to identify specific instances of when and how he asked each 11 individual Defendant for any medical treatment for his sleep apnea or other conditions, the 12 information he provided when making his requests, or the reasons, if any, that each 13 individual Defendant gave for his or her refusal. Similarly, though Plaintiff claims he 14 “informed Defendant Brown,” he failed to allege what specific information he told her, 15 when and how he informed her, or any reasons she gave for her alleged refusal “to act and 16 order treatment.” 17 Accordingly, Plaintiff fails to state a claim against Defendants Meza, Curd, Brown, 18 Wanders, Myers, and Sidi, and the Court will dismiss them and this action. 19 IV. Dismissal without Leave to Amend 20 Because Plaintiff has failed to state a claim in his Third Amended Complaint, the 21 Court will dismiss his Third Amended Complaint. “Leave to amend need not be given if 22 a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, 23 Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 24 particularly broad where Plaintiff has previously been permitted to amend his complaint. 25 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). 26 Repeated failure to cure deficiencies is one of the factors to be considered in deciding 27 whether justice requires granting leave to amend. Moore, 885 F.2d at 538 . — 28 — 1 Plaintiff has made multiple efforts at crafting a viable complaint and appears unable 2| to do so despite specific instructions from the Court. The Court finds that further opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 4 Plaintiff’s Third Amended Complaint without leave to amend. 5| ITIS ORDERED: 6 (1) The Third Amended Complaint (Doc. 7) is dismissed for failure to state a 7 | claim pursuant to 28 U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment 8 | accordingly. 9 (2) The Clerk of Court must make an entry on the docket stating that the 10 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915 (g). 11 (3) | The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915 (a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 13 | of this decision would be taken in good faith and finds Plaintiff may appeal in forma 14 pauperis. 15 Dated this 16th day of October, 2025. — 16 — Micha T. diburde Michael T. Liburdi 19 United States District Judge — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —