More 309128 v. Ryan

1 SH 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael More, No. CV 18-00626-PHX-DGC (CDB) 10 Plaintiff, 11 v. ORDER [12] Charles L. Ryan, et al., [13] Defendants. [14] 15 Plaintiff Michael More, currently confined in the Arizona State Prison Complex 16 (ASPC)-Lewis, Bachman Unit in Buckeye, Arizona, brought this pro se civil rights action 17 pursuant to 42 U.S.C. § 1983 . The following motions are before the Court: (1) Defendant 18 Coleman’s Motion for Summary Judgment (Doc. 95); (2) Plaintiff’s Motion for Summary 19 Judgment (Doc. 104); (3) Defendants Corizon, Ende, Grabowski, Labar, Myers, Rogers, 20 and Elijah’s (“Corizon Defendants”) Motion for Summary Judgment (Doc. 111);1 (4) 21 Plaintiff’s Motion for Preliminary Injunction (Doc. 114); and (5) Plaintiff’s Motion to 22 Amend (Doc. 132).2 23 I. Background [25] 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Docs. 97, 113.) [26] 2 The Court will deny Plaintiff’s request to file an Amended Motion for Summary 27 Judgment (Doc. 132.) Plaintiff’s motion comes over a month after his Motion for Summary Judgment was fully briefed and nearly three months after the dispositive motion 28 deadline expired. (See Doc. 103 (setting a dispositive motion deadline of May 27, 2019).) Further, the Court has reviewed Plaintiff’s lodged proposed amended statement of facts (Doc. 134) and they are identical to his original Statement of Facts (Doc. 105.) 1 In his First Amended Complaint, Plaintiff alleges that between 2016 and 2018, 2 various prison officials and members of the prison medical staff violated his Eighth 3 Amendment right to medical care when they failed to treat his chest pains, refused to 4 replace his automatic implantable cardioverter-defibrillator (AICD), and ignored his need 5 for chronic cardiology care. (Doc. 12.) On screening pursuant to 28 U.S.C. § 1915A(a), 6 the Court found that Plaintiff stated Eighth Amendment medical claims against Defendants 7 Corizon Health Services, Nurse Practitioner (NP) Ende, Facility Health Administrator 8 (FHA) Rogers, Assistant FHA Labar, Deputy Warden Coleman, Medical Records 9 Supervisor Grabowski, Registered Nurse (RN) Myers, Dr. Elijah, and Dr. Barnett and 10 directed them to answer. (Doc. 15.) The Court dismissed the remaining claims and 11 Defendants. (Id.) 12 II. Legal Standards 13 A. Summary Judgment 14 A court must grant summary judgment “if the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 16 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 17 movant bears the initial responsibility of presenting the basis for its motion and identifying 18 those portions of the record, together with affidavits, if any, that it believes demonstrate 19 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 . 20 If the movant fails to carry its initial burden of production, the nonmovant need not 21 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099 , 22 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 23 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 24 contention is material, i.e., a fact that might affect the outcome of the suit under the 25 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 26 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 27 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 28 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 1 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 2 it must “come forward with specific facts showing that there is a genuine issue for trial.” 3 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 4 citation omitted); see Fed. R. Civ. P. 56(c)(1). 5 At summary judgment, the judge’s function is not to weigh the evidence and 6 determine the truth but to determine whether there is a genuine issue for trial. Anderson, [7] 477 U.S. at 249 . In its analysis, the court must believe the nonmovant’s evidence and draw 8 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 9 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 10 B. Medical Care Claim 11 Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 12 with “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091 , 13 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two 14 prongs to the deliberate-indifference analysis: an objective prong and a subjective prong. 15 First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 16 omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could 17 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 18 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds 19 by WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1136 (9th Cir. 1997) (en banc) (internal 20 citation omitted). Examples of a serious medical need include “[t]he existence of an injury 21 that a reasonable doctor or patient would find important and worthy of comment or 22 treatment; the presence of a medical condition that significantly affects an individual’s 23 daily activities; or the existence of chronic and substantial pain.” McGuckin, 974 F.2d at 24 1059-60. 25 Second, a prisoner must show that the defendant’s response to that need was 26 deliberately indifferent. Jett, 439 F.3d at 1096 . A prison official acts with deliberate 27 indifference if he “knows of and disregards an excessive risk to inmate health or safety; to 28 satisfy the knowledge component, the official must both be aware of facts from which the 1 inference could be drawn that a substantial risk of serious harm exists, and he must also 2 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Prison officials are 3 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 4 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 5 Cir. 2002) (internal citations and quotation marks omitted), or when they fail to respond to 6 a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096 . 7 Deliberate indifference is a higher standard than negligence or lack of ordinary due 8 care for the prisoner’s safety. Farmer, 511 U.S. at 835 . “Neither negligence nor gross 9 negligence will constitute deliberate indifference.” Clement v. California Dep’t of Corr., [10] 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 11 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical 12 malpractice” do not support a claim under § 1983). “A difference of opinion does not 13 amount to deliberate indifference to [a plaintiff’s] serious medical needs.” Sanchez v. Vild, [14] 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is 15 insufficient to state a claim against prison officials for deliberate indifference. See Shapley 16 v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The 17 indifference must be substantial. The action must rise to a level of “unnecessary and 18 wanton infliction of pain.” Estelle, 429 U.S. at 105 . 19 Finally, even if deliberate indifference is shown, the prisoner must demonstrate 20 harm caused by the indifference. Jett, 439 F.3d at 1096 ; see Hunt v. Dental Dep’t, 865 21 F.2d 198, 200 (9th Cir. 1989). 22 III. Plaintiff’s Medical History and Treatment 23 Plaintiff arrived at ASPC-Eyman on April 18, 2016. (Doc. 112 (Corizon Defs.’s 24 Statement of Facts) ¶ 1.) The following day, Plaintiff had a chronic care visit with provider 25 Stephen Graham. (Id. ¶ 2.) Graham noted that Plaintiff’s blood pressure was too elevated 26 given Plaintiff’s chronic heart condition, so he ordered Candesartan Cilexetil (Atacand) to 27 treat Plaintiff’s high blood pressure and submitted a request for an offsite cardiology 28 appointment. (Id.) 1 On May 25, 2016, Plaintiff had an offsite cardiology appointment with Dr. Shanta 2 Kumar at Goldfield Cardiovascular Institute. (Id. ¶ 3.) Dr. Kumar assessed Plaintiff with 3 hypertension and congestive heart failure. (Doc. 112 at 27 (Corizon Defs.’ Ex. C).) 4 Plaintiff reported that he was “feeling great without any chest pain or shortness of breath,” 5 and Dr. Kumar noted that Plaintiff was “totally asymptomatic.” (Id.) 6 On July 20, 2016, Plaintiff had a follow-up appointment with Dr. Kumar and 7 reported that he “does [a] lot of exercise in the correctional facility.” (Doc. 100 at 103 8 (Pl.’s Ex. A); Doc. 105 at 8 (Pl.’s Ex. 2).) Dr. Kumar noted that Plaintiff was “totally 9 asymptomatic,” his AICD was working “very well,” “[t]he battery life appears to be good 10 for another four years,” and Plaintiff’s echocardiogram indicated that his ejection fraction 11 had improved to 55-60% which Dr. Kumar described as “almost normal at this point.” (Id.) 12 Dr. Kumar recommended that Plaintiff return in six months for a “pacer check.” (Id.) 13 On November 14, 2016, Plaintiff had an onsite appointment with Defendant Dr. 14 Barnett. (Doc. 112 ¶ 5.) Defendant Barnett noted that Plaintiff “occasionally misses doses 15 of carvedilol, but takes most of the time.” (Id. at 35 (Corizon Defs.’ Ex. E).) Plaintiff 16 contends that he “has never . . . refused to take his medications.” (Doc. 116 (Pl.’s Statement 17 of Facts) ¶¶ 5–6.) Defendant Barnett advised Plaintiff to continue his medication. (Doc. 18 112 ¶ 5.) Defendant Barnett saw Plaintiff again the following day for a chronic care 19 appointment. (Id. ¶ 6.) Defendant Barnett noted Plaintiff’s history of high blood pressure 20 and chronic heart failure. (Id. at 39 (Corizon Defs.’ Ex. F).) Plaintiff reported that he felt 21 “great” when discussing his heart condition. (Id.) At the time, Plaintiff had prescriptions 22 for Ibuprofen, Aspirin, Candesartan Cilexetil, and Carvedilol (high blood pressure/heart 23 failure). (Id. at 43–44.) Defendant Barnett ordered an EKG. (Id. at 45.) 24 On May 11, 2017, Plaintiff had an onsite chronic care appointment with Defendant 25 Dr. Elijah. (Id. ¶ 7.) Plaintiff reported intermittent chest pain. (Id. at 48 (Corizon Defs.’ 26 Ex. G).) Dr. Elijah noted that Plaintiff’s AICD had been placed in 2009 and that it was 27 currently “in place to left upper chest, incision well healed at insertion site.” (Id. at 48– 28 49.) He also noted that Plaintiff was due for a cardiology follow-up to check his AICD. 1 (Id. at 54.) Dr. Elijah ordered that Plaintiff “continue off candesartan for now” and try to 2 lose 10-20 pounds. (Id.)3 Dr. Elijah also recommended monthly blood pressure checks for 3 three months. (Id.) Plaintiff’s Naproxen (anti-inflammatory), Carvedilol, and Aspirin were 4 renewed in May 2017. (Id. at 60 (Corizon Defs.’ Ex. H).) 5 On August 21, 2017, Plaintiff submitted a Health Needs Request (HNR) requesting 6 an appointment to see a cardiologist for his chronic heart condition. (Doc. 96 (Coleman 7 Statement of Facts) ¶ 1.) The following day, Defendant RN Myers entered a Health Service 8 Request referring Plaintiff’s complaint to the provider for review. (Doc. 112 at 57 (Corizon 9 Defs.’ Ex. H).) Plaintiff’s Paroxetine (anti-depressant) was renewed on August 23, 2017. 10 (Id. at 60.) On August 31, 2017, Plaintiff was seen by Defendant NP Ende. (Id. ¶ 8.) 11 Defendant Ende ordered several lab tests, a chest x-ray, and a cardiology consult. (Id. at 12 61.) Plaintiff’s Candesartan Cilexetil was renewed on September 2, 2017. (Doc. 112 at 77 13 (Corizon Defs.’ Ex. K).) 14 On October 2, 2017, Plaintiff had an appointment at Integrated Medical Services 15 (IMS) Cardiology. (Doc. 96 ¶ 2.) During this appointment, Plaintiff’s AICD was 16 examined, and it was noted that the voltage was “too low for projected remaining capacity” 17 and that the battery had been depleted on September 6, 2017. (Id.; Doc. 96-1 at 4–6.) A 18 chest x-ray was recommended to evaluate Plaintiff’s AICD for a possible lead fracture. 19 (Doc. 105 at 10 (Pl.’s Ex. 4).) On October 12 and 13, 2017, Plaintiff submitted HNRs 20 complaining that he was having “regular chest pains,” that his “AICD is not working,” and 21 requesting to have an echocardiogram. (Doc. 96 ¶ 3; Doc. 96-1 at 8; Doc. 105 at 14–15 22 (Pl.’s Exs. 5, 6).) On October 14, 2017, Defendant Ende requested an urgent cardiology 23 consult for Plaintiff. (Doc. 112 at 69–73 (Corizon Defs.’ Ex. J).) 24 On October 16, 2017, Plaintiff submitted an Inmate Letter to Defendant Coleman 25 stating that he needed to see a cardiologist to have his AICD replaced. (Doc. 96 ¶ 4.) 26 Defendant Coleman asserts that after receiving Plaintiff’s letter, he visited Plaintiff at his [27] 28 3 Plaintiff’s Candesartan Cilexetil prescription expired on December 4, 2016. (Doc. 112 at 44.) 1 cell and told Plaintiff that he would speak to the medical staff on Plaintiff’s behalf to get 2 Plaintiff seen by a provider. (Id. ¶ 5.) When Defendant Coleman spoke to the medical 3 staff, he was informed that Plaintiff did not need a new AICD, and Defendant Coleman 4 relayed this information to Plaintiff. (Id. ¶ 5.) Defendant Coleman is not a medical 5 provider and does not have any medical training. (Id. ¶ 15.) Defendant Coleman is not 6 involved in making treatment decisions. (Id. ¶ 14.) 7 On October 18, 2017, Plaintiff was seen by Defendant Ende at sick call. (Doc. 112 8 ¶ 11.) Defendant Ende noted that there was a questionable reading on Plaintiff’s AICD 9 and there was no battery life left; he also noted that a cardiology consult request had already 10 been submitted. (Id. at 75–76 (Corizon Defs.’ Ex. K).) 11 On October 24, 2017, Plaintiff was seen by onsite provider Dr. Paul, and the plan 12 notes stated the following: 13 [C]all placed to IMS . . . case [discussed with] Dr. Battacharya. Reports that battery will need to be replaced. Informed of [14] [Plaintiff’s complaints of] chest pain however he feels that the 15 chest pain is not related to the AICD. Would like follow up with [Plaintiff] to evaluate chest pain perhaps obtain an echo [16] and/or stress test. [Plaintiff was] informed of conversation 17 with Dr. Battacharya and that consult for follow up with cardiology is scheduled however date is pending. [18] 19 (Doc. 100 at 122 (Pl.’s Ex. 30).) Chest x-rays were ordered “to check for lead fracture.” 20 (Id.) On October 27, 2017, Plaintiff’s prescriptions for Carvedilol, Aspirin, and Naproxen 21 were renewed. (Doc. 112 at 95 (Corizon Defs.’ Ex. N).) 22 On October 30, 2017, Plaintiff submitted grievance number L34-020-017 to 23 Defendant Rogers complaining that he was not receiving adequate treatment for his chest 24 pain and that his AICD had not been replaced. (Doc. 100 at 118 (Pl.’s Ex. 9).) That same 25 day, Plaintiff was seen offsite at IMS Cardiology by Dr. Adhar Seth. (Doc. 96 ¶ 8.) The 26 examination report indicated that Plaintiff had prescriptions for Aspirin, Atacand, 27 Carvedilol, Naproxen, and Paroxetine. (Doc. 96-1 at 17.) Dr. Seth noted “[AICD] battery 28 depleted. Let[’]s see what his EF [ejection fraction] is and we may need to have EP 1 [electrophysiologist] see him to have generator change.” (Id. at 18.) Dr. Seth 2 recommended for Plaintiff to continue his medications and to follow up “after echo or 3 sooner if needed.” (Id.) 4 On November 3, 2017, Defendant Coleman followed up with Plaintiff to confirm 5 that he had been seen onsite by the medical staff. (Doc. 96 ¶ 9.) On November 7, 2017, 6 Plaintiff saw Defendant Myers at sick call and requested to “see psych immediately” 7 because he was experiencing panic attacks, mood swings, and nightmares due to his 8 pacemaker not working. Defendant Myers referred Plaintiff to the mental health staff that 9 same day. (Doc. 112 at 92–93, 97 (Corizon Defs.’ Ex. N).) 10 Plaintiff had a chronic care appointment with Defendant Ende on November 10, 11 2017. (Doc. 112 at 101–08 (Corizon Defs.’ Ex. O).) Defendant Ende reviewed the October 12 30, 2017 cardiology report and noted “echo recommended, addressed pacer battery 13 depleted.” (Id. at 103.) Plaintiff was scheduled for weekly blood pressure checks for three 14 weeks and a follow-up with the provider. (Id. at 107–08.) On November 11, 2017, 15 Defendant Ende submitted a cardiology consult request for Plaintiff. (Id. at 112.) 16 Plaintiff’s Paroxetine was renewed on November 15, 2017. (Id. at 120 (Corizon Defs.’ Ex. 17 Q).) 18 On November 27, 2017, Defendant Grabowski responded to Plaintiff’s October 16, 19 2017 letter and noted that Plaintiff was seen by a cardiologist on October 30, 2017 and had 20 an onsite follow-up with the provider on November 10, 2017. (Id. ¶ 10.) On November 21 29, 2017, Defendant Rogers responded to grievance number L34-020-017 and stated, 22 “[a]fter a review of your medical record, it was discovered that the provider has been 23 sending you to the cardiologist. You were just seen as recent as 10-2-17 & 10-30-17.” 24 (Doc. 100 at 119 (Pl.’s Ex. 12).) 25 On December 1, 2017, Plaintiff had an echocardiogram at IMS Cardiology. 26 (Doc. 112 ¶ 11.) The results indicated the following: [27] 1. Left ventricular ejection fraction was mildly reduced, 28 estimated in the range of 45 to 50%. The left ventricle is thickened in a fashion consistent with mild concentric hypertrophy. Grade I diastolic dysfunction, consistent with [1] impair [left ventricle] relaxation and normal LAP [left atrial 2 pressure]. 3 2. Valve Structures not well visualized, grossly normal. 4 3. There is no pericardial effusion. [5] (Doc. 96-1 at 22.) Plaintiff was seen onsite by RN Uriarte the following day to have his [6] blood pressure checked. (Doc. 112 at 118–22 (Corizon Defs.’ Ex. Q).) RN Uriarte noted [7] that Plaintiff’s diastolic blood pressure was slightly elevated and that Plaintiff “walked in [8] on own power, no acute distress noted . . . gait steady, ambulated with no difficulties . . . [9] speech clear, able to verbalize needs, respirations even and unlabored.” (Id. at 118–19.) [10] RN Uriarte advised Plaintiff “to contact medical for any type of chest pains or [signs or [11] symptoms] that he requires defibrillation[.]” (Id. at 121.) [12] On December 29, 2017, Plaintiff saw Defendant Ende onsite; Defendant Ende [13] reviewed Plaintiff’s echocardiogram results and submitted a cardiology consult request. [14] (Id. at 124, 127 (Corizon Defs.’ Ex. R).) On January 11, 2018, Plaintiff was prescribed [15] Losartan for high blood pressure. (Id. at 137 (Corizon Defs.’ Ex. T).) [16] On January 22, 2018, Plaintiff had another echocardiogram at IMS Cardiology with [17] Dr. Hursh Naik, and the results showed that his ejection fraction was 45%. (Id. ¶ 12.) Dr. [18] Naik noted that Plaintiff “denies chest pain at rest, denies exertional chest pain, denies [19] dyspnea, denies fatigue, denies exercise intolerance and denies palpitations.” (Id.) Dr. [20] Naik recommended that Plaintiff be referred to “EP for generator changes,” have a follow21 up echocardiogram in six months, and continue on his medications. (Id.; Doc. 96-1 at 26.) [22] At the time, Plaintiff had prescriptions for Aspirin, Atacand, Carvedilol, Naproxen, and [23] Paroxetine. (Doc. 96-1 at 25.) [24] On January 28, 2018, Plaintiff submitted an HNR complaining that he had not [25] received his new medication that was prescribed at his January 22, 2018 cardiology [26] appointment. (Doc. 112 at 133 (Corizon Defs.’ Ex. T).) On January 30, 2018, NP Smith [27] submitted an EP consult request as recommended by Dr. Naik. (Doc. 112 ¶ 20.) On [28] February 1, 2018, NP Smith ordered Aldactone (Spironolactone) as recommended by Dr. 1 Naik to treat Plaintiff’s high blood pressure. (Id.) On February 12, 2018, Plaintiff 2 submitted an HNR inquiring about getting his AICD replaced, and he was advised that he 3 was scheduled to see the cardiologist. (Id. ¶ 21.) 4 On February 16, 2018, Plaintiff had an EP evaluation at the AZ Heart Rhythm 5 Center with Dr. Akash Makkar. (Doc. 100 at 123–27 (Pl.’s Ex. 36).) Dr. Makkar noted 6 that Plaintiff’s AICD was “at ERI [elective replacement indicator].” (Id. at 126.) Dr. 7 Makkar recommended that Plaintiff “undergo generator change.” (Id.) Dr. Makkar also 8 recommended a “healthy heart diet low in sodium, high in fresh fruit intake” and that 9 Plaintiff “return every 3 months for AICD check and management.” (Id.) Dr. Makkar 10 referred Plaintiff “to Dr. Naik for serial echocardiography.” (Id.) At this time, Plaintiff 11 had prescriptions for Aspirin, Atacand, Coreg (Carvedilol), Lasix (fluid retention), 12 Naproxen, and Paxil (Paroxetine). (Doc. 105 at 27 (Pl.’s Ex. 14).) On February 24, 2018, 13 Defendant Ende reviewed Plaintiff’s medical records and submitted a cardiology consult 14 request. (Doc. 112 ¶ 23). That same day, Plaintiff was prescribed Furosemide to treat 15 swelling related to his heart condition. (Doc. 112 at 164 (Corizon Defs.’ Ex. X).) 16 On March 12, 2018, Plaintiff’s AICD battery was replaced at Abrazo Arizona Heart 17 Hospital by Dr. Makkar. (Doc. 96 ¶ 13; Doc. 112 at 159–60 (Corizon Defs.’ Ex. X).) No 18 complications were noted. (Doc. 112 at 159.) That same day, Plaintiff was seen onsite by 19 NP Johnson who noted that Plaintiff’s incision site “ha[d] scant amount of drainage, but 20 [was] otherwise intact.” (Id. at 163.) NP Johnson noted that Plaintiff’s dressing should be 21 removed in 5-7 days and submitted a consult request for Plaintiff to follow-up at AZ Heart 22 Rhythm Center in 10-14 days. (Id. at 166.) NP Johnson entered the following Special 23 Needs Orders: no lifting, pushing, pulling, or running; no reaching above shoulder height; 24 limited mobility; and pacemaker/defibrillator. (Id.) She also advised Plaintiff not to 25 remove his bandages on his own, not to use any lotions or ointments, and to “notify medical 26 if shock felt, sudden weight gain, edema in legs/feet, increased [shortness of breath], 27 lightheadedness, nausea, vomiting, rash, increased warmth or redness, increased pain, [28] 1 swelling or fluid leaking from incision.” (Id.) Plaintiff was prescribed Codeine for pain 2 and Doxycycline to prevent infection. (Id. at 173 (Corizon Defs.’ Ex. Y).) 3 On March 14, 2018, an Incident Command System (ICS) was called after Plaintiff 4 reported chest pain. (Id. ¶ 25.) RN Marshall examined Plaintiff and noted that an EKG 5 was performed and showed “no new changes from prior EKG’s, no [signs or symptoms] 6 of cardiac distress.” (Id. at 170 (Corizon Defs.’ Ex. Y).) RN Marshall also noted that 7 Plaintiff’s incision site was “red with some swelling, no drainage or bleeding, no [signs or 8 symptoms] of infections.” (Id.) NP Johnson ordered medical ice for three days, Ibuprofen, 9 and Toradol to treat Plaintiff’s pain and scheduled Plaintiff for a follow-up nurse call for 10 the following day. (Id. at 175.) 11 On March 15, 2018, Plaintiff was seen onsite by RN Boyce. (Id. ¶ 26.) Plaintiff 12 denied having any pain. (Id.) RN Boyce changed Plaintiff’s bandages and did not observe 13 any redness or signs of infection at the incision site. (Id.) On March 17, 2018, RN Boyce 14 changed Plaintiff’s bandages again and noted that the incision site was clean, dry, and intact 15 with no signs or symptoms of infection. (Id.) 16 On March 30, 2018, Plaintiff had a follow-up appointment at AZ Heart Rhythm 17 Center with Dr. Vijendra Swarup. (Id. ¶ 27.) Plaintiff denied chest pain, palpitations, 18 shortness of breath, dizziness, fever, night sweats, significant weight gain or loss, vomiting, 19 coughing, or any other complications. (Doc. 112 at 192 (Corizon Defs.’ Ex. AA).) Dr. 20 Swarup tested the new AICD, and it was functioning normally. (Id.) Dr. Swarup 21 recommended that Plaintiff return every three months for an AICD check. (Id. at 193.) 22 On May 24, 2018, Plaintiff had an onsite chronic care visit with NP Ndemanu. (Id. 23 ¶ 29.) Plaintiff denied having chest pain, difficulty breathing, palpitations, or any other 24 heart-related symptoms. (Id. at 206 (Corizon Defs.’ Ex. CC).) NP Ndemanu noted that 25 Plaintiff’s heart rate and rhythm were regular. (Id. at 208.) At this time, Plaintiff had active 26 prescriptions for Furosemide, Carvedilol, Aspirin, Paroxetine, Naproxen, Spironolactone, 27 and Losartan. (Id. at 211–12.) [28] 1 On June 28, 2018, NP Ndemanu submitted a cardiology consult request for 2 Plaintiff’s three-month follow-up visit. (Id. ¶ 30.) On July 13, 2018, Plaintiff went to AZ 3 Heart Rhythm Center for his follow-up appointment with Dr. Makkar. (Id.) Plaintiff 4 denied having chest pain or any other symptoms, and Dr. Makkar observed that Plaintiff’s 5 AICD was functioning normally. (Id. at 223 (Corizon Defs.’ Ex. DD).) Dr. Makkar noted 6 that Plaintiff was “stable from an EP standpoint” and recommended that Plaintiff continue 7 on his current medications and follow-up in six months. (Id. at 224.) 8 Plaintiff’s Losartan and Paroxetine were renewed in July 2018, and his 9 Spironolactone was renewed in August 2018. (Id. at 231 (Corizon Defs.’ Ex. EE).) On 10 October 2, 2018, Plaintiff saw onsite provider NP Klein for a chronic care appointment 11 during which Plaintiff denied chest pain, shortness of breath, or dizziness. (Id. at 226.) NP 12 Klein noted that Plaintiff’s heart rate and rhythm were regular. (Id. at 228.) NP Klein 13 made a note that Plaintiff was due for a cardiology follow-up in December 2018. (Id. at 14 233.) 15 Plaintiff had a chronic care appointment with NP DeMello on January 24, 2019. (Id. 16 ¶ 32.) Plaintiff reported that he had stopped taking his Losartan based on the “news of its 17 [sic] bad” and that “the idiots here at Corizon don’t know what they are talking about and 18 just throw labels that are not correct. I don’t think I need to be on it anyways [sic].” (Id. 19 at 236 (Corizon Defs.’ Ex. FF).) NP DeMello reviewed Plaintiff’s January 18, 2019 lab 20 results and advised Plaintiff to take his medications as prescribed. (Id. at 240.) NP 21 DeMello changed Plaintiff’s medication to “watch swallow” status and ordered blood 22 pressure checks three times per week for three weeks. (Id.) 23 On February 15, 2019, an ICS was called when Plaintiff reported that he woke up 24 with chest pain. (Id. ¶ 33.) Plaintiff stated that he had taken a lot of Ibuprofen the day 25 before for ongoing tooth pain. (Id.) An EKG was performed by the night shift and 26 transferred to the day shift nurse for review. (Id.) That same day, Plaintiff had another 27 EKG, and RN Hoffman examined Plaintiff and noted that his “respirations [were] equal 28 and unlabored” and his heart rate and rhythm were regular. (Id. at 254, 257 (Corizon Defs.’ 1 Ex. GG).) Plaintiff was informed of the potential consequences of taking too many non2 steroidal anti-inflammatories, such as Ibuprofen, and was advised to take his medication as 3 prescribed. (Id. at 257.) 4 On March 21, 2019, Plaintiff had a chronic care appointment with NP DeMello. (Id. 5 ¶ 34.) Plaintiff denied chest pain, shortness of breath, headache, or dizziness. (Id. at 260 6 (Corizon Defs.’ Ex. HH).) NP DeMello noted that Plaintiff’s heart rate and rhythm were 7 regular with no murmur present. (Id. at 261.) At the time, Plaintiff had active prescriptions 8 for Spironolactone, Furosemide, Carvedilol, Aspirin, and Naproxen. (Id. at 265–66.) 9 IV. Deliberate Indifference Analysis 10 A. Serious Medical Need 11 The parties do not dispute that Plaintiff’s heart condition constitutes a serious 12 medical need; and the evidence of Plaintiff’s medical treatment—which included 13 diagnostic testing, specialist visits, having his AICD battery replaced, and being prescribed 14 several medications to manage his blood pressure and chest pain—supports a finding that 15 Plaintiff’s condition was “worthy of comment or treatment” so as to constitute a serious 16 medical need. McGuckin, 974 F.2d at 1059-60 . Accordingly, the objective prong of the 17 deliberate indifference analysis has been satisfied, and the Court must consider whether the 18 response to Plaintiff’s serious medical need amounted to deliberate indifference. 19 B. Deliberate Indifference 20 1. Defendants Rogers, Labar, Grabowski, and Coleman 21 Plaintiff’s claims against Defendants Rogers, Labar, Grabowski, and Coleman arise 22 from their responses to his administrative grievances. (See Doc. 12 at 6–9.) The record 23 does not support a finding that their responses to Plaintiff’s grievances amounted to 24 deliberate indifference. 25 Upon receiving Plaintiff’s October 16, 2017 Inmate Letter requesting to be taken to 26 the cardiologist to have his AICD replaced, Defendant Coleman spoke to the medical staff 27 on Plaintiff’s behalf, and when they informed him that Plaintiff did not need a new AICD, 28 Defendant Coleman relayed this information to Plaintiff. (Doc. 96 ¶¶ 4–5.) On November 1 3, 2017, Defendant Coleman followed up with Plaintiff to confirm that he had been seen 2 onsite by the medical provider. (Id. ¶ 9.) By that time, Plaintiff had been seen twice by 3 onsite providers and attended an offsite cardiology appointment at IMS Cardiology. (Doc. 4 112 ¶ 11; Doc. 100 at 122; Doc. 96 ¶ 8.) This was the extent of Defendant Coleman’s 5 involvement in Plaintiff’s medical treatment. Defendant Coleman is not a medical 6 provider, he does not have any medical training, and he is not involved in making treatment 7 decisions. (Id. ¶¶ 14–15.) His reliance on the medical staff’s professional judgment 8 regarding Plaintiff’s AICD was not unreasonable. Further, Plaintiff was not harmed by 9 Defendant Coleman’s conduct because Plaintiff was seen by cardiologist Dr. Seth at IMS 10 Cardiology on October 30, 2017, two weeks after he submitted the Inmate Letter to 11 Defendant Coleman, and Dr. Seth referred Plaintiff to the EP to have Plaintiff evaluated 12 for an AICD battery replacement. (Doc. 96-1 at 18.) On these facts, Defendant Coleman’s 13 response to Plaintiff’s Inmate Letter did not amount to deliberate indifference, and he will 14 be dismissed from the action. 15 Defendants Grabowski and Rogers’ responses to Plaintiff’s medical grievances did 16 not amount to deliberate indifference. On November 27, 2017, Defendant Grabowski 17 responded to Plaintiff’s October 16, 2017 Inmate Letter and noted that Plaintiff was seen 18 by a cardiologist on October 30, 2017 and had an onsite follow-up with the provider on 19 November 10, 2017. (Doc. 112 ¶ 10.) Grievance L34-020-017 was received by the 20 medical unit on November 15, 2017, and on November 29, 2017, Defendant Rogers 21 responded that “[a]fter a review of your medical record, it was discovered that the provider 22 has been sending you to the cardiologist. You were just seen as recent as 10-2-17 & 1023 30-17.” (Doc. 100 at 119.) Simply stated, Plaintiff requested to be seen by a cardiologist 24 to have his AICD replaced, and Defendants Grabowski and Rogers responded that he had 25 already been seen by the cardiologist twice the previous month. Defendants Grabowski 26 and Rogers’ limited involvement in Plaintiff’s medical treatment did not rise to the level 27 of deliberate indifference. Their responses to Plaintiff’s grievances were based on the 28 documentation in his medical records. Defendants Grabowski and Rogers are not 1 physicians or medical providers, and there is no evidence that they were qualified or 2 authorized to make clinical decisions. (See Doc. 112 at 271, 275.) Further, there is no 3 evidence that Plaintiff was harmed by their conduct where Plaintiff was taken to IMS 4 Cardiology on December 1, 2017 to undergo an echocardiogram, less than a week after 5 Defendants Grabowski and Rogers’ responses. Accordingly, Defendants Grabowski and 6 Rogers will be dismissed from the action as well. 7 Finally, in his First Amended Complaint, Plaintiff alleges that Defendant Labar 8 responded to his informal grievances dated October 6 and October 29, 2017 and stated that 9 Plaintiff was “being followed by cardiology,” but Defendant Labar failed to “mention 10 [Plaintiff’s] need of echocardiogram or AICD replacement.” (Doc. 12 at 7.) The October 11 6 and 29 informal grievances and Defendant Labar’s responses were not provided in the 12 record, and Plaintiff does not state what he said in the informal grievances. Given this lack 13 of evidence, Plaintiff has failed to create a genuine issue of fact as to whether Defendant 14 Labar’s responses amounted to deliberate indifference. Defendant Labar is not a medical 15 provider, and there is no evidence that she was authorized to make clinical decisions or 16 prescribe courses of treatment. (Doc. 112 at 273.) Further, the medical evidence shows 17 that Plaintiff was taken to IMS Cardiology on October 2, 2017, four days before he 18 submitted the first informal grievance to Defendant Labar, and again on October 30, 2017, 19 the day after he submitted the second informal grievance to Defendant Labar. (Doc. 96 ¶¶ 20 2, 8.) Plaintiff’s AICD was examined during both of these appointments, and the treating 21 specialists recommended that Plaintiff undergo additional testing—including a chest x-ray 22 and an echocardiogram—before having his AICD battery replaced. (Doc. 96-1 at 18; Doc. 23 105 at 10.) There is no evidence that Plaintiff was harmed by Defendant Labar’s responses 24 to his informal grievances, and his claim against Defendant Labar must also be dismissed. 25 For the foregoing reasons, summary judgment will be granted to Defendants 26 Coleman, Grabowski, Rogers, and Labar, and they will be dismissed from the action. 27 2. Defendant Ende 28 The Court will also grant summary judgment in favor of Defendant Ende. The 1 undisputed record shows that when Plaintiff submitted an HNR on August 21, 2017 2 requesting to see a cardiologist, Defendant Ende submitted a cardiology consult request on 3 August 31, 2017, in addition to ordering several lab tests and a chest x-ray. (Doc. 112 at 4 61.) Similarly, when Plaintiff submitted HNRs on October 12 and 13, 2017 complaining 5 that he was having chest pains, his AICD was not working, and requesting to have an 6 echocardiogram, Defendant Ende submitted an urgent cardiology consult request on 7 October 14, 2017. (Doc. 96 ¶ 3; Doc. 96-1 at 8; Doc. 105 at 14–15; Doc. 112 at 69–73.) 8 At Plaintiff’s November 10, 2017 chronic care appointment, Defendant Ende scheduled 9 Plaintiff for weekly blood pressure checks, and submitted another cardiology consult 10 request the following day. (Doc. 112 at 107–08, 112.) Defendant Ende saw Plaintiff again 11 on December 29, 2017, and after reviewing Plaintiff’s most recent echocardiogram results, 12 he submitted a cardiology consult request. (Doc. 112 at 124, 127.) Defendant Ende 13 reviewed Plaintiff’s medical records on February 24, 2018 and submitted another consult 14 request for Plaintiff to be seen by the cardiologist. (Doc. 112 ¶ 23.) On these facts, 15 Defendant Ende’s responses to Plaintiff’s medical complaints did not amount to deliberate 16 indifference. Plaintiff asserts that “[o]n October 24, 2017 Lawrence Ende N.P. sent 17 Plaintiff for an x-ray of his chest,” and, according to Plaintiff, “x-ray is not a culpable [sic] 18 test for heart functionality.” (Doc. 12 at 7.) The evidence indicates, however, that the chest 19 x-rays were recommended by the specialist from IMS Cardiology in order to evaluate 20 Plaintiff’s AICD for a possible lead fracture. (Doc. 105 at 10.) Plaintiff has failed to refute 21 Defendants’ evidence that the treatment he received from Defendant Ende was medically 22 appropriate. Plaintiff’s claim against Defendant Ende will be dismissed. 23 3. Defendant Myers 24 Defendant Myers’ only involvement in Plaintiff’s medical treatment was referring 25 Plaintiff’s August 21, 2017 HNR to the provider for review on August 22, 2017 and 26 referring Plaintiff to the mental health staff on November 7, 2017 when he asked to “see 27 psych immediately.” (Doc. 112 at 57, 92, 97.) Defendant Myers did not deliberately 28 disregard Plaintiff’s serious medical needs. The evidence shows that she promptly 1 responded to Plaintiff’s HNRs, and her actions resulted in Plaintiff receiving the medical 2 care he requested. Defendant Myers will be dismissed from the action. 3 4. Defendant Elijah 4 Plaintiff had an onsite chronic care appointment with Dr. Elijah on May 11, 2017. 5 (Doc. 112 at 48.) Plaintiff’s heart rate and rhythm were regular. (Id. at 50.) In response 6 to Plaintiff’s complaint of intermittent chest pain, Defendant Elijah ordered monthly blood 7 pressure checks and advised Plaintiff to lose weight. (Id. at 50.) Defendant Elijah also 8 noted that Plaintiff was due for a cardiology follow-up and AICD check. (Id. at 54.) These 9 facts do not show that Defendant Elijah deliberately disregarded Plaintiff’s heart condition. 10 And even if Defendant Elijah’s failure to submit a cardiology consult request could be 11 viewed as deliberate indifference, the evidence does not show that Plaintiff was harmed by 12 the delay in being seen by the cardiologist where specialist Dr. Battacharya opined in 13 October 2017 that he did not think that Plaintiff’s chest pain was related to the AICD and 14 there are no facts connecting Plaintiff’s chest pain to his AICD battery being depleted. 15 (Doc. 100 at 122.) 16 In his First Amended Complaint, Plaintiff alleges that in March 2017, Defendant 17 Elijah “dismissed [his] chest pains and labored breathing” and “denied chronic cardio 18 care.” (Doc. 12 at 5.) There are no records of Plaintiff being seen by Defendant Elijah in 19 March 2017, so it is not clear whether Plaintiff was actually referring to the May 22, 2017 20 appointment with Dr. Elijah. Even assuming Plaintiff was seen by Defendant Elijah in 21 March 2017, absent additional facts regarding the encounter, Plaintiff’s conclusory 22 statements in his First Amended Complaint are too vague to support a deliberate 23 indifference claim. Plaintiff’s claim against Defendant Elijah will be dismissed. 24 5. Corizon 25 To prevail on a claim against Corizon as a private entity serving a traditional public 26 function, Plaintiff must meet the test articulated in Monell v. Dep’t of Social Services of 27 City of New York, 436 U.S. 658, 690-94 (1978). See also Tsao v. Desert Palace, Inc., 698 28 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of 1 state law). Accordingly, Plaintiff must show that an official policy or custom caused the 2 constitutional violation. Monell, 436 U.S. at 694 . To make this showing, he must 3 demonstrate that: (1) he was deprived of a constitutional right; (2) Corizon had a policy or 4 custom; (3) the policy or custom amounted to deliberate indifference to Plaintiff’s 5 constitutional right; and (4) the policy or custom was the moving force behind the 6 constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 7 F.3d 1101 , 1110-11 (9th Cir. 2001). 8 Defendants have presented ample evidence that Plaintiff’s chest pains and heart9 related symptoms were consistently addressed by the medical staff, and he was prescribed 10 several medications to alleviate these symptoms. Plaintiff had several cardiology 11 appointments and his condition was monitored through EKGs and echocardiograms. 12 To the extent Plaintiff contends that the failure to replace his AICD battery as soon 13 as it was discovered to be depleted amounted to deliberate indifference, his argument fails. 14 During Plaintiff’s October 2, 2017 appointment at IMS Cardiology, it was noted that the 15 battery in Plaintiff’s AICD was depleted on September 6, 2017. (Doc. 96-1 at 4–6.) But 16 the specialist did not recommend a battery replacement at this time. Instead, the specialist 17 recommended a chest x-ray to evaluate Plaintiff’s AICD for a possible lead fracture. (Doc. 18 105 at 10.) The Corizon medical staff followed this recommendation, and chest x-rays 19 were ordered on October 24, 2017. (Doc. 100 at 122.) 20 Plaintiff returned to IMS Cardiology on October 30, 2017, where Dr. Seth noted 21 that Plaintiff’s AICD battery was depleted. (Doc. 96-1 at 17–18.) Again, Dr. Seth, the 22 treating specialist, did not recommend that the battery be replaced. He recommended that 23 Plaintiff have an echocardiogram to check his ejection fraction before seeing the EP about 24 a battery change. (Id.) Plaintiff underwent echocardiograms at IMS Cardiology on 25 December 1, 2017 and January 22, 2018. (Doc. 112 ¶¶ 11–12.) At the January 22, 2018 26 appointment, Dr. Naik recommended that Plaintiff be referred for an EP appointment to be 27 evaluated for a battery replacement. (Doc. 96-1 at 26.) An EP consult request was 28 submitted on January 30, 2018. (Doc. 112 ¶ 20.) 1 Plaintiff had an EP evaluation at the AZ Heart Rhythm Center with Dr. Makkar on 2 February 16, 2018, and Dr. Makkar recommended an AICD battery replacement. 3 (Doc. 100 at 123–27.) This was the first time one of Plaintiff’s treating specialists ordered 4 a battery replacement. Defendant Ende submitted a consult request on February 24, 2018, 5 and Plaintiff’s AICD battery was replaced at Abrazo Arizona Heart Hospital by Dr. Makkar 6 on March 12, 2018. (Doc. 96 ¶ 13; Doc. 112 ¶ 23; Doc. 112 at 159–60.) 7 The delay in Plaintiff’s AICD battery being replaced did not amount to deliberate 8 indifference where Plaintiff’s treating specialists required additional testing—a chest x-ray 9 and an echocardiogram—before referring Plaintiff for an EP evaluation. The Corizon 10 medical staff had these tests performed. Once the additional tests were completed, 11 Plaintiff’s treating specialist referred Plaintiff for an EP evaluation, and the Corizon 12 medical staff promptly took steps to have Plaintiff scheduled for this evaluation. Plaintiff’s 13 AICD battery was replaced within a month of Dr. Makkar recommending the replacement. 14 Plaintiff has not presented any evidence that the delay in replacing his battery was due to 15 deliberate indifference rather than the treating specialists’ need for additional testing. 16 The record shows that Plaintiff received continuous medical care related to his heart 17 condition. His complaints were consistently addressed, and there is no evidence that they 18 were ignored or left untreated. Each time he presented at the clinic, he was seen by a nurse, 19 referred to a provider, and in many cases sent to a specialist. Plaintiff has not presented 20 any additional medical records that would dispute this finding or show that any aspect of 21 his medical care was due to or resulted in a constitutional violation. Even if there were 22 delays in treatment, Plaintiff points to no evidence that would show or create a genuine 23 issue of material fact that he required more urgent treatment at those times or that he was 24 harmed by the delays. Accordingly, the record does not support a finding that Plaintiff’s 25 constitutional rights were violated. 26 Moreover, even if there was a question of fact as to whether the Corizon medical 27 staff was deliberately indifferent to Plaintiff’s serious medical need, Plaintiff has not 28 presented any evidence that Corizon promulgated a policy, practice, or custom that 1 deprived him of his constitutional rights. Because Plaintiff has not presented any evidence 2 that his constitutional rights were violated pursuant to a policy, custom or practice 3 established by Corizon or that a policy, custom or practice was the moving force behind 4 the alleged violation of his rights, the Court will grant summary judgment to Corizon. 5 V. Defendant Barnett 6 On June 12, 2018, service on Defendant Barnett was returned unexecuted. 7 (Doc. 31.) The Process Receipt and Return indicates that attorney Scott Conlon “refused 8 to accept service on Dr. Barnett’s behalf” and that Conlon stated, “he is not allowed to 9 accept process and Dr. Barnett may not even be his client.” (Id.) 10 On July 3, 2018, the Court issued Plaintiff a subpoena duces tecum so that he could 11 obtain Defendant Barnett’s address from the Arizona Medical Board or another state’s 12 medical board. (Doc. 42 at 2.) The Court ordered Plaintiff to complete service within 70 13 days and warned Plaintiff that failure to complete service on Defendant Barnett could result 14 in Defendant Barnett being dismissed from the action. (Id.) 15 Plaintiff completed and submitted the subpoena duces tecum on July 10, 2018, but 16 he improperly addressed it to Corizon and not to a state medical board as ordered by the 17 Court. (Doc. 53.) On August 13, 2018, the Court issued another subpoena duces tecum 18 and again directed Plaintiff to address it to the Arizona Medical Board. (Doc. 55 at 2.) 19 Plaintiff completed and submitted a subpoena duces tecum addressed to the Arizona 20 Medical Board on September 28, 2018, and it was served on October 5, 2018. (Doc. 69.) 21 Counsel for the Arizona Medical Board filed Defendant Barnett’s last known address under 22 seal, and the service packet was forwarded to the U.S. Marshals Service (USMS) on 23 October 25, 2018. Service at Defendant Barnett’s last known address in Washington state 24 was returned unexecuted on November 20, 2018. (Doc. 79.) 25 Plaintiff subsequently moved to serve Defendant Barnett by publication (Doc. 82), 26 and the Court denied the motion. (Doc. 94.) To date, Defendant Barnett has not been 27 served. The Court previously advised Plaintiff that although it directed the USMS to serve 28 Defendant Barnett, Plaintiff is responsible for providing the proper address for Defendant 1 Barnett to effectuate service. (Doc. 94 at 2 (citing Sweet v. Hernandez, 2003 WL 2 21920921, at *8 (N.D. Cal. Aug. 6, 2003).) It is not the Court’s or USMS’s responsibility 3 to track down the addresses of defendants. Plaintiff was previously warned that failure to 4 timely serve Defendant Barnett could result in Defendant Barnett being dismissed from the 5 action. (Doc. 42 at 2; see Doc. 15 at 10.) Accordingly, the Court will dismiss Defendant 6 Barnett from the action without prejudice for failure to timely serve pursuant to Federal 7 Rule of Civil Procedure 4(m). 8 VI. Motion for Preliminary Injunction 9 In his Motion for Preliminary Injunction, Plaintiff asks for his AICD to be replaced 10 and “immediate follow up with Dr. Makkar’s treatment plan of 6 month [follow-ups] and 11 echocardiogram every 6 months, fresh fruit.” (Doc. 114 at 2–3.) In addressing the Motions 12 for Summary Judgment, the Court determined Plaintiff’s constitutional rights were not 13 violated. Therefore, Plaintiff has failed to show that he is likely to succeed on the merits 14 of his Eighth Amendment claim or that he will be irreparably harmed if the requested relief 15 is not granted, which are both requirements for obtaining injunctive relief. Winter v. 16 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Accordingly, Plaintiff’s Motion for 17 Preliminary Injunction will be denied. See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166 , 18 1174 (9th Cir. 2011). 19 IT IS ORDERED: 20 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 21 Coleman’s Motion for Summary Judgment (Doc. 95), Plaintiff’s Motion for Summary 22 Judgment (Doc. 104), Corizon Defendants’ Motion for Summary Judgment (Doc. 111), 23 Plaintiff’s Motion for Preliminary Injunction (Doc. 114), and (5) Plaintiff’s Motion to 24 Amend (Doc. 132). 25 (2) Plaintiff’s Motion to Amend (Doc. 132) is denied. 26 (3) Defendant Coleman’s Motion for Summary Judgment (Doc. 95) is granted, 27 and Defendant Coleman is dismissed from the action with prejudice. 28 (4) Plaintiff’s Motion for Summary Judgment (Doc. 104) is denied. 1 (5) | Corizon Defendants’ Motion for Summary Judgment (Doc. 111) is granted, 2| and Defendants Corizon, Ende, Grabowski, Labar, Myers, Rogers, and Elijah are dismissed from the action with prejudice. 4 (6) — Plaintiff's Motion for Preliminary Injunction (Doc. 114) is denied. 5 (7) | Defendant Barnett is dismissed from the action without prejudice for failure 6 | to serve pursuant to Federal Rule of Civil Procedure 4(m). 7 (8) The Clerk of Court must terminate this action and enter judgment 8 | accordingly. 9 Dated this 30th day of August, 2019. [10] Saul 6. Counpllt 12 David G. Campbell 13 Senior United States District Judge