Benge v. Ryan (154 F. Supp. 3d 857, 2016)

United States District Court for the District of Arizona 2016-01-05

Citations

Full opinion text

ORDER

David G. Campbell, United States District Judge

Plaintiff Robert Joseph Benge, who' is currently' confined in the Arizona State Prison' Complex-Lewis- (ASPC-Lewis), brought-this' civil' rights case pursuant-to 42 U.S.C. § 1983: Doc. 1. Pending before thé Cóiirt aré the following mbtions: (1) Defendants Casey Tucker, Christina Mahler, and C'orkioh, 'LLC’s motion for summary judgment (Doc. 64),' which Plaintiff opposes (Doe. 93); (2) Defendant Wexford Health Sources, Inc.’s motion for summary judgment (Doc. 88), which Plaintiff opposes (Doc. 113); (3) Defendant Kenneth Merchant’s motion for summary judgment (Doc. 96), which Plaintiff opposes (Doc. Ill); (4) Defendants Charles Ryan, Richard Pratt, and Josh Santo’s motion for summary judgment (Doc. 119), which Plaintiff opposes (Doc. 126); (5) Plaintiff’s motion to supplement his response to Defendants Tucker, Mahler, and Corizon’s motion for summary judgment (Doc. 124); and (6) Plaintiff s motion to reopen discovery and file an amended complaint (Doc. 146). -

The Court will deny Plaintiffs motion to, supplement and will summarily deny Plaintiffs motion to re-open discovery and amend his complaint. For the reasons that follow, the Court will grant summary judgment to Defendants Ryan, Pratt, Mahler, Wexford, and Corizon, and deny summary judgment to Defendants Santo, Merchant, and Tucker.

1. Background.

In his Complaint, Plaintiff asserted two Counts of the denial of constitutionally adequate medical care. Doe. 1. Plaintiff seeks damages.

, In Count I, Plaintiff alleged that his Eighth Amendment rights were violated when he was denied .immediate treatment for a fractured left tibia that he injured on May 3, 2012. Plaintiff was taken that day to- the ASPC-Lewis emergency room and was evaluated by Nurse Mahler. Plaintiff was told he had a sprain, not a bone injury. Dr. Merchant told Mahler to give Plaintiff ice and that he would order x-rays, but Plaintiffs left leg and. knee, which were swollen, were not “immobilized or stabilized” that day or any time thereafter. Id. at 5.

•• On May 13, 2012, Plaintiff submitted a ■Health-Needs Request (“HNR”) about his leg (id.), and saw Mahler and Nurse John Doe on May 14, 2012 (id. at 8). Plaintiff alleged that Mahler and Doe saw that he “could hardly walk on his own,” but nevertheless failed to splint, immobilize, or stabilize his “badly swollen, bruised left knee and leg.” Id. Plaintiff alleged that Mahler and Doe “actively thwarted” his attempt to see a doctor. Id. at 9.

On June 12, 2012, Dr. Merchant evaluated Plaintiff and saw “how swollen and bruised Plaintiffs knee and leg” were. Id. Plaintiff asked why x-rays were never tak,en, and Merchant told Plaintiff that it was tpo. late to take x-rays given the date of Plaintiff? injury and that, instead, Plaintiff needed an. MRI. Id.

Plaintiff had an MRI on July 3, 2012, and it showed “an incomplete transverse fracture through the medial tibial meta-physis,” but no one told Plaintiff about the fractured tibia until November 15, 2012, when he saw Dr. John Vanderhoof, M.D., an orthopedic surgeon. Id. at 9-10.. Plaintiff claims that because he did not receive immediate treatment, he has suffered permanent injury and continuing pain. Plaintiff alleged that Arizona Department of Corrections (ADC) Director Charles Ryan, ADC Director of Health Services Richard Pratt, and Wexford, the private healthcare provider under contract with ADC. beginning. July 1, 2012, “neglected the serious medical needs of inmates by failing to manage, support, supervise and administer medical care to prisoners.” Id. at 7.

In Count II, Plaintiff alleged that his Eighth Amendment rights were violated when, on several occasions in 2013 and 2014, he did not receive his prescribed pain medications. Corizon had replaced Wexler as the provider of inmate healthcare during this time period. Plaintiff alleged that on June 18, 2013, his prescription medications Gabapentin and Propranolol were abruptly discontinued for three months. Plaintiff alleged that on September 18, 2013, physician’s assistant Carey Tucker abruptly discontinued his Baclofen prescription and reduced his Gabapentin from 3,200 mg daily to 600' mg daily, even though both were prescribed for “neuro-vascular compromise [and] muscle spasms for the fracture[d] tibia that was never treated.” Id. at 18. Plaintiff’s Tramadol prescription, which he took to manage the pain related to ah eye condition, wás stopped on November 5, 2013, and his Gabapentin 600 mg daily was stopped “cold turkey” on January 16, 2014 and has not been renewed. Id. On January 14, 2014, Plaintiff saw an outside eye specialist, Dr. Warren Heller, M.D., who wrote a prescription for Tramadol 300 mg twice daily for pain management, but Tucker refused to .prescribe this medication for Plaintiff. Plaintiff alleged that Tucker is only prescribing psychotropic medications to inmates for pain management, “pursuant to a policy implemented” by Corizon, Ryan, Pratt, and ADC. Id. at 19. .

On screening' under 28 U.S.C. § 1915A(a), the Court ordered Defendants Ryan, Pratt, Wexford, Merchant,' and Mahler to answer the allegations in Count I and Defendants' Ryan, Pratt, Corizon, and Tucker to answer the allegations in Count II. Doc. 6. The Court dismissed the remaining Defendants without prejudice. The Court also found that Plaintiff had stated a claim ’¿gainst Defendant Nurse Doe, but did not order service on the unidentified Defendant. In a subsequent Order, the Court ordered that Josh Santo be substituted for Defendant Nurse Doe in Count I of the Complaint, and that Santo answer Cou'ñt I. Doc. 51. '•

II. Plaintiffs Motion to Supplement.

Defendants Tucker, Mahler, and Corizon (“Corizon Defendants”) filed their motion for summary judgment on March 12, 2015, Plaintiff filed a response on May 18, 2015, and the Corizon Defendants filed a reply on June 1, 2015. On August 17, 2015, Plaintiff filed a motion to supplement his response to the Corizon Defendants’ motion for summary judgment. Doc. 124. Defendants have not responded to Plaintiffs motion, and the time to do so has passed.

Plaintiff seeks to add a July 2015 article entitled “The Making of Made in his Image: A Camera Made from Living Tissue!,” by Randy J, Guliuzza; P.E., ,M-D., in a publication called Acts & Facts. Id. at 12-14. The two-page article compares the lens of a sophisticated camera to the eye and discusses the components of an eye, stating in one part that “[c]orneas are likely the most .pain-sensitive tissues in the body, with sensory innervation over 400 tim.es greater than that of most skin and even dozens of times more sensitive than our teeth or fingertips.” Id. at 14. Plaintiff contends that the article is relevant to his claim that medication was necessary for management of his eye pain. Id. at 2-4. The article, though, does not appear to be about diseases of the eye, eye pain, or treatment thereof.

Printed material “purporting to be a newspaper or periodical” is self-authenticating. Fed, R. Evid. 902(6). This article is therefore self-authenticating. Its content, however, is hearsay not subject to any exception and it does not appear to be relevant to Plaintiffs particular eye condition. Accordingly, the article is not admissible for summary judgment purposes. Because the article is not admissible for summary judgment, the Court will deny Plaintiffs motion to supplement. -

III. Legal Standards.

A. Summary Judgment.

A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). But if the- movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); however, it must “come forward'with specific facts showing that there is a genuine issue for trial,” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation and citation omitted) (emphasis in' origihal); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge’s function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In its analysis, the court must believe the nonmovant’s evidence and draw all inferences in the nonmovant’s favor. Id. at 255, 106 S.Ct. 2505 (citation omitted). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

B. Eighth Amendment Medical Care.

To succeed on a medical-care claim under the Eighth Amendment, a prisoner must demonstrate “ ‘deliberate indifference to serious medical needs.’ ” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). There are two prongs to the deliberate-indifference analysis: an objective standard and a subjective standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc) (quotation marks and citation omitted). Examples of indications that a prisoner has a serious medical need include “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the' existence of chronic and substantial pain.” Id. at 1059-60.

Second, a prisoner must show that “the defendant’s response to that need was deliberately indifferent.” Jett, 439 F.3d at 1096. The state of mind required for deliberate indifference is subjective recklessness; however, the standard is “less stringent in cases involving a prisoner’s medical needs.. .because ‘[t]he State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.’ ” McGuckin, 974 F.2d at 1060 (quoting Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). Whether a defendant had requisite. knowledge of a substantial risk of harm is a question of fact, and a fact finder may conclude that a defendant knew of a substantial risk based, on the fact that the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

“Prison officials are deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002). (quotation marks and citations omitted). Deliberate indifference may also be shown by the way in which prison officials provide medical care, Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988), or “by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm,” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.2003) (citations omitted). And deliberate indifference may be shown by a purposeful act or failure to respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. But the deliberate indifference doctrine is limited; an inadvertent failure to provide adequate medical card or negligence in diagnosing or treating a medical condition does not support an Eighth Amendment claim. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.2012) (citations omitted). Further, a mere difference in medical opinion does not establish deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).

Finally, even if deliberate indifference is shown, to support an Eighth Amendment claim, the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096 (citations omitted); see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.1989) (finding that delay in providing medical treatment does not constitute Eighth Amendment violation unless delay was harmful).

IV. Defendants Ryan, Pratt, and Santo’s Motion for Summary Judgment.

A. Relevant Facts.

■ 1. Plaintiffs Leg Injury.

Plaintiff fell on May 3, 2012 and injured his left leg. Doc. 1 at 5. Plaintiff alleges that he was seen by Mahler in the ASPC-Lewis emergency room for his leg injury that same day, and that he was told he had a sprain and was given medical ice. Id. The ADC Defendants contend that Plaintiff- did not complain about his leg injury until he submitted his May 13, 2012 HNR, in which Plaintiff wrote that he “hurt [his] leg running a week ago, and [he] can still hardly walk on it. It is getting worse with pressure, swelling.” Docs. 120 at 5, ¶ 19; 120-3 at 8. Plaintiff wrote that his pain was a 7-8 on a scale of 1-10 and that he wanted to see the healthcare provider “as x-rays may be needed.” Doc, 120-3 at 8. Plaintiff disputes Defendants’ assertion as to when he first complained about his injury, averring that he complained about his injury to “security staff/medical staff’ on May 3, the ' day of the injury, and that he submitted an HNR on May 8, 2012. Docs. 127 at 3; 127-1 at 10. Defendants dispute that Plaintiff ever submitted an HNR dated. May 8, 2012, and assert that Plaintiffs medical file does not contain an. HNR with .that date. Docs. 141 at 5; 142 at 1, ¶ 1; 142-1 at 2, ¶ 2. Plaintiff submits a May 8, 2012 HNR which states: “I hurt my leg a few days ago, ER only gave me ice. Something ‘real bad’ is wrong with-my leg. Request x-ray be performed. It’s hard to walk because every step hurts.” Doc. 127-1 at 10. There is nothing written in the portion of the HNR reserved for medical personnel.

Plaintiff saw Santo, a registered nurse, on May 14, 2012, for his complaints of pain in his left leg. Doc. 120 at 5-6, ¶ 20. According to Santo, Plaintiffs left leg showed no evidence of trauma, swelling or bruising, and Plaintiff was able to bear weight on his left leg. Id.; Doc. 120-3 at 39-40, ¶ 10. Santo determined that Plaintiff was experiencing “alteration in comfort” and recommended that Plaintiff monitor his leg and- if the, pain did not subside in a few days, he should submit an HNR to medical. Id. Santo issued Plaintiff a special needs order (“SNO”) for medical ice for three days. Id. Plaintiff disputes Santo’s observation that there was no evidence of trauma, swelling or bruising or that he could bear weight on his leg. Docs. 127 at 3; 127-1 at 10. Plaintiff points to his May 13 HNR which states that his leg was “getting worse with pressure, swelling.” Docs. 127 at 3; 127-1 at 11.

On May 22, 2012, Plaintiff submitted another HNR, stating that he. saw the nurse the week before due to an injury to his left leg and that he is “in excruciating pain stili.” Docs. 120 at 6, ¶ 22; 120-3 at 15. Plaintiff asked “to see the provider A.S.A.P.” Doc. 120-3 at 15. Santo saw Plaintiff on May 31, 2012 for his “complaint of left knee pain”; Santo examined Plaintiffs left leg and “did not observe any swelling or signs of trauma.” Doc. 120 at 6, ¶ 23. Santo again assessed Plaintiff as “experiencing alteration in comfort,” gave Plaintiff medical ice, and scheduled him to see the healthcare provider. Id. Plaintiff disputes that Santo did hot notice' any trauma or swelling, noting that Santo nonetheless gave him medical ice. Doc. 127 at 4.

; On June 5, 2012, Santo noted in Plaintiffs medical chart that Plaintiff was at the medical unit requesting an x-ray of his left knee and a consult for his eyes. Doc; 120 at 6, ¶ 24. That- same day, Plaintiff saw Merchant, a medical doctor, for his complaints of “continued pain in his left knee and issues related to his eye condition.” Id., ¶ 25. In Plaintiffs medical chart, Merchant noted left “knee pain” and “tender tibial plateau, unable to one leg stand, flex/ext.” Doc. 120-3 at 11. Merchant ordered an MRI of Plaintiffs left knee and a consultation with an orthopedic specialist. Doc. 120 at 6, ¶25. The MRI was performed on Plaintiffs left knee on July 3, 2012, and it showed an “incomplete transverse fracture through the medial tibia! metaphysis with diffuse bone marrow edema.” Does. 120 at 6, ¶ 26; 120-3 at 18. On July 13, 2012, Merchant noted the results of the MRI -in Plaintiffs chart and ordered an . “or-tho/surg consult” and to make an appointment for July 17, 2012 to discuss the MRI. Doc. 120-3-at 11,22.

On July 9, 2012, Plaintiff filed ah HNR asking for an appointment with the provider to discuss the results of his MRI and to discuss safety glasses because of his cornea transplant. ■ Doc. 120 at 7, ¶ 27. On August 7, 2012, Plaintiff saw Dr. Merchant “for his complaint of eye injuries”; Merchant noted in Plaintiffs medical chart that Plaintiff has keratoconus and had corneal transplants in both eyes. Id. at 7; ¶29; Doc. 120-3 at 24. Plaintiff disputes that he was seen for “eye injuries”; he states that Nurse Reese told him this appointment was to discuss the MRI results. Doc. 127 at 4. The ADC Defendants aver that Merchant was not able to discuss the MRI results at the August 7th appointment “due to time constraints.” Doc. 120 at 7, ¶ 30. Plaintiff disputes that time ■ constraints alone prevented them from discussing the MRI results; he asserts that Dr. Merchant “refused to discuss the MRI results.” Doc. 127 at 4, ¶ 30. 0,n August 8, 2012, Plaintiff submitted an HNR asking for an appointment to discuss the MRI results because they were not able to do so during his August 7th appointment. Docs. 120 at 7, ¶ 30; 120-3 at 27.

On November 15, 2012, Plaintiff was examined by Dr. John Vanderhoof of Tempe St. Luke’s Hospital. Doc. 120 at 7, ¶31, Plaintiff testified at his deposition that -it was during this visit with Vander-hoof that he learned for the first time that he had fractured his tibia- when Vander-hoof asked him, “How in the hell'did you fracture your tibia?” Doc. 127-2 at 10 (PI Dep. at 37:18-19). According to the. ADC Defendants, Vanderhoof noted that Plain? tiff complained of “medial knee pain and medial tibial pain,” but that Plaintiff denied any numbness, tingling, or other complaints. Doc. 120 at 7, ¶31. Plaintiff disputes that he denied any numbness or tingling. Doc. 127 at 4, ¶ 31. In his consultation report, Vanderhoof noted that four and a half months after his injury, Plaintiffs “left knee has a full range of motion. He does have pain over the pes bursa. He has no swelling. He has no pain over the anterior aspect of the tibia, but medially oyer the pes bursa, he js significantly painful.” Doc. 120-3 at 29. Vanderhoof wrote that Plaintiff injured his knee while running and noticed “onset of pain and swelling in his left knee” and “was not able, to walk after a while.” Id. Plaintiff “presented to the emergency room where he was evaluated and told he was okay. He subsé-quently has had an MRI” that “shows a medial proximal tibial fracture.” Id.

Vanderhoof ordered x-rays during Plaintiffs visit, and they were taken that same day. Doc. 120 at 7, ¶ 31. Vanderhoof wrote that x-rays showed “a healed medial and proximal tibial fracture with some slight callus formation present. Medially, that is probably near the pes bursa.” Doc. 120-3 at 29. Vanderoofs impression was that Plaintiff suffered from “left pes bursitis, status post proximal medial tibial fracture.” Id. Vanderhoof gave Plaintiff an injection of Lidocaine, Marcaine, and Depo-Medrol into the left pes bursa, which provided “immediate pain relief of his symptoms.” Id. at 30.

Plaintiff saw Dr. Vanderhoof for a follow-up visit on June 27, 2013. Doc. 120 at 7, ¶ 33. Vanderhoof s report noted the July 2012 MRI results showing a “medial tibial metaphyseal fracture.” Doc. 120-3 at 36. Vanderhoof also wrote:

He has been complaining of medial and proximal tibial pain consistent with pes bursitis. He has a lot of issues with regards to board filings for malpractice and so forth. We had long discussions with regards to this. I think_treat-ed properly since the beginning_ quite normally and his bone is completely healed. He did not know all the details, but certainly the end result is excellent. His pes bursitis is likely not related to his fracture or any treatment thereof. I think his pes bursitis is strictly due to his hamstring tightness.

Id. (omissions in original).

Vanderhoof also noted that Plaintiff was complaining of left plantar fasciitis, which “is treatable with gentle stretching.” Id. Vanderhoof gave Plaintiff an injection into his left pes bursa, which gave Plaintiff “immediate pain relief of his symptoms.” Id.

Plaintiff submitted an Inmate Letter on November 19, 2012, stating that “[i]n July [sic] I hurt my leg running and I submitted an HNR requesting an x-ray to no avail.” Docs. 120 at 9, ¶ 41; 120-4 at 62. Plaintiff wrote that when he saw Dr. Van-derhoof on November 15, 2012, he “was told that [he] broke [his] left leg just under the knee and it healed back wrong.” Doc. 120-4 at 62. Plaintiff asked “why the [department] is being deliberately indifferen[t] to [his] serious medical needs in not seeing [him] so x-rays could be taken.” Id. Corrections Officer III Bruemmer responded to Plaintiffs Inmate Letter on November 20, 2012, advising Plaintiff that his medical issue “was forwarded to medical in care of P. Carlson.” Docs. 120 at 9, ¶ 42; 120-4 at 64.

On December 9, 2012, Plaintiff submitted an Inmate Grievance. Doc. 120 at 9-10, ¶ 43. Plaintiff wrote that he did not receive a response to his November 19, 2012 Inmate Letter, and that he hurt his leg in July and requested x-rays because he “could barely walk.” Doc. 120-4 at 66. Plaintiff said that Dr.' Vanderhoof told him in November that he broke his leg; now he has “pain issues [and] swelling.” Id. He asked to see an orthopedic surgeon and to discuss pain management and balance issues with the provider. Id. Plaintiff submitted an Inmate Grievance Appeal on January 5, 2013, stating that he did not receive a response to his Inmate Grievance, and asking to see the healthcare provider for pain management and for an orthopedic consultation with Dr. Vahder-hoof. Docs. 120 at 10, ¶44; 120-4 at 68. Plaintiff asked why it took months before x-rays of his leg were taken and why it took four months to learn the results of his MRI and that his leg was broken. Id.

On.March 22, 2013, ADC Deputy Director Jeff Hood wrote a response to Plaintiffs Inmate Grievance Appeal on behalf of ADC Director Ryan. Doc. 120 at 10, ¶ 45. Hood wrote that Plaintiffs Grievance Appeal was partially upheld because his investigation “showed no evidence that medical staff responded to your grievance; for this reason, your appeal is partially upheld.” Doc. 120-4 at 70. Hood then related the history of Plaintiffs medical visits regarding his leg, beginning with Santo’s evaluations on May 14 and May 31, 2012 in which Santo saw “no sign of trauma, swelling or bruising” and “weight bearing was intact.” Id. (emphasis in original). Hood wrote that Plaintiff saw a medical provider on June 5, 2012, who ordered an MRI of Plaintiffs left knee; the MRI taken July 3, 2012 “showed an incomplete transverse fracture through the medial tibial meta-physis with diffuse bone mamrw edema; there was no meniscal tear.” Id. (emphasis in original). Hood noted that Plaintiff saw an orthopedic surgeon on November 15, 2012, who. wrote that Plaintiffs “x-rays showed a healed medial proximal tibial fracture with some slight callus formation.” Id. at 70-71 (emphasis in original). Because of that and a follow-up x-ray taken December 26 showing “mild osteoarthritis of the left knee,” Hood wrote that a referral to an orthopedic surgeon was not necessary. Id. at 71 (emphasis in original).

2. Plaintiffs Pain Medications.

On Juñe 3, 2013 Plaintiff filed an Inmate Letter, stating that Nurse Practitioner Lawrence Ende refused to renew the medications for his chronic conditions that were due to expire on June 18, 2013. Docs. 120 at 11, ¶ 46; 120-4 at 73. Plaintiff wrote that-it has been a continual problem with his medications “stopping cold turkey.” Doc. 120-4 at 73. Correctional Officer III Lindsey responded and told Plaintiff that his Informal Complaint was being forwarded to Medical for further review. Doc. 120-4 at 75.,Plaintiff did not receive a response to his Inmate .Letter, and subsequently filed a Grievance and a Grievance Appeal. Doc. 120-4 at 77-78, 80-82.

On September 6, 2013, Hood, on behalf of Ryan, responded by denying the appeal. Doc. 120 at 13-15, ¶ 51. Hood wrote that Plaintiff has “been provided appropriate management for [his] condition.” Doc. 120-4 at 86. Regarding Plaintiffs medications, Hood wrote ‘that on May 24, 2013, Plaintiff was seen on the provider line for his complaints of pain behind the knee and left heel. Id. The nurse noted no deformity of the left knee or foot and Plaintiffs vital signs were within- normal limits; therefore; the nurse ordered that Plaintiffs Gabapen-tin be discontinued when it expired on June 19, 2013 “as it was deemed to be no longer medically necessary.” Id. Hood said that Plaintiffs June 27, 2013 x-ray of his left leg “showed mild to moderate degenerative disease of the medial femoro-tibial compartment; no evidence of' fracture or dislocation was hoted.” Id. (emphasis in original). Hood wrote that the orthopedic surgeon who saw Plaintiff that same day noted that Plaintiff was “ ‘treated properly since the beginning and [his] bone is completely healed’ from an old tibial metaphy-seal fracture' back in July [sic] 2012” and that the “end result is ‘excellent.’ ” Id. (emphasis in original). Hood stated that an onsite physician reviewed the orthopedic surgeon’s consultation notes on July 3 [sic], 2013 and “ordered appropriate medications-for pain management.” Id. Hood concluded that “the decision to start or discontinue a medication or adjust its dosage is a medical decision based on the prescribing provider’s findings'and medical judgment; it is not an administrative decision or based on the dictates of the patient.” Id. at- 87.

Plaintiff filed a new Inmate Letter on September 19, '2013, complaining that nothing was done after he broke his tibia in May 2012 or even after the July 2012 MRI “showed such.” Docs. 120 at 15, ¶ 52; 120-4 at 89. Plaintiff wrote that he saw physician’s assistant Tucker on September 18, 2013, .and Tucker told him that he was going to discontinue Plaintiffs Baclofen; which was prescribed , for muscle spasms “as the tibia bone ends were disturbed during regeneration, as [he] was forced to walk on this fracture for 16 months now. Proper healing didn’t take place.” Doc. 120-4 at 89. Plaintiff asserted that his Ga-bapentin had already been “stopped cold turkey” on June 18, 2013 and that to abruptly discontinue, Plaintiffs Baclofen “was medically reckless and represents flagrantly inadequate medical care.” Id. Correctional Officer III Taylor responded to Plaintiffs Inmate Letter on October 17, 2013, stating,that Plaintiffs non-formulary drug. request, is “pending approval” and that Plaintiff is to follow-up with the yard nurse. Docs. 120 at 15, ¶ 53; 120-4 at 91, Taylor , also, wrote that Plaintiff refused an “alternate treatment plan” for his pain. Doc. 120-4 at 91.

Plaintiff submitted an Inmate Grievance on October 8, 2013, complaining that Tucker “drastically altered [his] medication regimen with the abrupt discontinuation of the Baclofen” and by decreasing his Gaba-pentin from 3,200 mg daily to '600 mg daily. Docs. 120 at 15, ¶ 54; 120-4 at 93. Plaintiff wrote that because his fractured tibia was never immobilized or casted, he was at “substantial risk for neurovascular compromise” and that he has daily muscle spasms in his leg due to the discontinuation of the Baclofen and “excruciating pain due to the reduced Gabapentin.” Doc. 120-4 at 93.

' On November 5,' '2013,' “Consul-tánt/RVP” Linda Hammer responded to Plaintiffs Grievance, stating that Plaintiff was seen by a healthcare provider on September 18; 2013, and at that time his Ga-bapentin was ordered, his Baclofen was discontinued, a physical therapy request was made, and Plaintiff was scheduled for a three-month follow-up. Docs. 120 at 15-16, ¶ 55; 120-4 at 95.- Hammer told Plaintiff “[p]er DOC policy, clinical decisions and actions regarding health care services provided to you are the sole responsibility of qualified health care professionals. You do not have the right to dictate treatment or who provides treatment.” Doc. 120-4 at 95.

Plaintiff filed a Grievance Appeal on November '27, 2013, asserting that Hammer did not answer “the context” of his grievance. Docs. 120 at 16, ¶ 56; 120-4 at 97. Hood responded to Plaintiffs appeal on behalf of Ryan on February 4, 2014, denying the appeal. Doc.' 120 át 16-17, ¶ 57. Hood noted that Plaintiff was currently on Naproxen and Pamelor for pain control and that his Baclofen, Gabapentin, and Tramadol had been allowed to expire. Doc. 120-4 at 100. Hood wrote that “a medical provider may start or discontinue a medication or adjust its dosage based on his/her medical judgment; this is not an administrative decision or based on a patient’s preference(s). Our review showed that you are receiving appropriate medical care and you are continuing to be medically monitored.” Id. ;

B. Analysis.

1. Serious Medical Need.

The parties do not dispute that Plaintiff had a serious medical need. Nor is there any dispute that Plaintiffs leg injury,- eye condition,, and pain were worthy of both comment and treatment; On this record, a jury could find that Plaintiffs conditions constituted a-serious medical need. See McGuckin, 974 F.2d at 1059. The Court therefore turns to the subjective prong of the deliberate indifference analysis.

2. Deliberate Indifference.

Plaintiff argues that each of the ADC Defendants was deliberately indifferent to his serious medical need. Under this inquiry, a court must determine whether each defendant had the requisite knowledge of a substantial risk of harm; that is, did each defendant know of and disregard a substantial risk to the plaintiffs health. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “If a person should have been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir.2002) (citation omitted). When a plaintiff seeks to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the Eighth Amendment deprivation requires a very individualized approach that accounts for the duties, discretion, and means of each defendant. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988). The Court must exam-' ine whether “the specific prison official, in acting or failing to act, was deliberately indifferent to the mandates of the eighth amendment.” Id. at 834, 114 S.Ct. 1970.

a. Ryan and Pratt.

With respect to count one, Plaintiff argues that Ryan and Pratt are responsible for the failure to treat his tibia fracture because it resulted from “systemic deficiencies” in the delivery of healthcare to inmates. Doc. 126 at 8. As to count two, Plaintiff argues that Ryan and Pratt implemented a policy, requiring providers -to “abruptly discontinue” his and other prisoners’ medications. Id. at 19-20.

A supervisor may be found liable “for- a subordinate’s constitutional violations if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Maxwell v. Cnty. of San Diego, 708 F.3d 1075; 1086 (9th Cir.2013) (quotation marks and citation omitted). Supervisory liability can also exist when there is “a sufficient causal connection between the supervisor’s wrongful conduct and the c'onstitutional violation,” such as when “supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (quotation marks and citations omitted). To establish liability based on a policy, a plaintiff must identify a specific policy and establish a “direct causal link” between that policy and the alleged constitutional deprivation. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

As support for his claims against Ryan and Pratt under count one, Plaintiff cites to an open letter Ryan wrote to healthcare staff in November 2009 addressing an anonymous letter Ryan had received “expressing concerns with the medical staffs ability to provide ADC inmates .with. constitutionally mandated health care.” Docs. 126 at 10; 127-2 at 40-42. Plaintiff contends that this letter is ‘“significant proof that Director Ryan[] and Mr. Pratt had knowledge of the deficient health care being provided to inmates as far back as November 2009.” Doc. 126 at 10, Plaintiff further asserts that “[u]pon information and belief, Defendant(s) Ryan and Pratt, and the previous Division Director of Health, (‘Dr. Michael-Adu-Tutu’)” exchanged emails “with regards to how dire the situation was with practices related to the provision of health care.” Id. at 10-11 (citing Ex. 3). Plaintiffs Exhibit 3 is the Third Amended Class Action Complaint in a different case, Gamez v. Ryan, No. 10-cv-02070-PHX-JWS (MEA) (D. Ariz. Mar. 6, 2012). See Docs. 127-4 at 24-50; 127-5 at 1-47.. Plaintiff also refers to what, he says is an October 12, 2011 demand letter from attorney Donald Specter regarding “the profound shortcoming in ADC’s delivery of medical, dental, and mental health care.” Doc. 126 at 11. The Court has reviewed Plaintiffs exhibits and did not locate this letter, although Plaintiff did file a Declaration by Donald Specter dated December 16, 2014 in support of a motion for attorneys’ fees and costs in Parsons v. Ryan, No. 12-cv-00601-PHX-DKD (D. Ariz. Dec. 16, 2014). Docs. 127:5 at 49-50; 127-6 at 1-11. Finally, Plaintiff relies on a September 21, 2012 “Written Cure Notification” letter to Wexford from ADC as “more probative evidence that tips the balance in favor of concluding that Ryan and Pratt both had knowledge of the systemic deficiencies that expose all inmates to a substantial risk of serious harm.” Docs. 126 at 12; 127-2 at 44-50.

Plaintiffs evidence fails to create a genuine issue of material fact regarding Ryan or Pratt. Ryan’s 2009 letter to healthcare staff says nothing about ASPC-Lewis, where- Plaintiff was housed, and it was issued three years before the alleged violations of Plaintiffs constitutional rights stemming from his leg injury. Although the 2012 Written Cure Notification letter to Wexford does discuss ASPC-Lewis, that discussion relates to a contaminated needle being used to deliver insulin injections to patients in the Morey Unit and ADC having to deploy additional compliance monitoring staff. See Doc. 127-2 at 46-47. This letter reflects that ADC was aware of certain problems with Wexford’s delivery of healthcare and responded to a problem at ASPC-Lewis,- but does not support that Ryan or Pratt had a policy or custom that violated Plaintiffs constitutional rights. The Third Amended Complaint in Gamez v. Ryan, which Plaintiff submitted as evidence in this case, does not appear to encompass Plaintiffs claims and is insufficient to create an issue of fact. Nor is the attorney declaration in support, of the motion for attorneys’- fees and costs in Parsons v. Ryan probative of the issues in Plaintiffs case.

Finally, with respect to count two, although Plaintiff asserts that he will establish at trial that there was a policy to stop certain of his medications “cold turkey” (Doc. 126 at 20), he provides no evidence of such a policy. Nor does he provide any evidence to link the alleged policy to Ryan or Pratt.

Therefore, Plaintiff has not presented sufficient evidence that his constitutional rights were violated pursuant to a policy or custom established by Ryan or Pratt, or that a policy or custom was the moving force behind the alleged violation of his rights. See City of Canton, 489 U.S. at 385, 109 S.Ct. 1197. Accordingly, the Court will grant summary judgment to Defendants Ryan and Pratt. Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (Rule 56 “mandates the entry of summary judgment, after ade-quaté time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”).

b. Santo.

Under count one, Plaintiff argues .that Santo was deliberately indifferent to Plaintiffs serious medical needs. Doc. 126 at 8. Plaintiff does not allege that Santo is implicated in count two. The ADC Defendants argue that'while Plaintiff believes Santo should have prescribed crutches, medication, and an immediate provider appointment, Santo treated Plaintiff “according to his observations and .assessments made during the two visits he had with him.” Doc: 141 at 12. They ^contend that Plaintiffs disagreement with the care San-to provided does not amount to deliberate indifference. Id. at 12-13. The Court does find a question of material fact regarding Santo that must be resolved at trial.

Plaintiff saw Santo two times after he injured his leg' on May 3, 2012. Plaintiff first saw Santo on May 14, 2012, the day after he submitted an HNR complaining that he could hardly walk on his leg and that his leg was getting worse with pressure and dwelling. Doe. 120-3 at 8. Plaintiff wrote that his pain was a 7-8 on a scale of 1-10 and that he may need x-rays. Id. Plaintiff testified at his deposition that Santo “noticed I couldn’t bear weight that much.” Doc. 127-2 at 10 (PL Dep. at 34:17-18). Plaintiff testified that his ADA porter helped him to this appointment, and that he had his left arm around the porter’s shoulder because he- “could barely put pressure on [his] tiptoes.” Id.- at 11 (PL Dep. at 41:1-8). Plaintiff testified that his left leg “was swollen and discolored pretty severely” and that “the pain was pretty severe.” Id. at 10 (Pl. Dep. at 34:20-21, 35:9). Santo, however, asserts that Plaintiffs leg showed no evidence of trauma, swelling or bruising, and Plaintiff was able to bear weight on his left leg. Docs. 120 at 5, ¶ 20; 120-3 at 39-40, ¶ 10. Nevertheless, Santo prescribed medical-ice to Plaintiff and told Plaintiff to submit an HNR if the pain did not subside in a few days. Id.

As Santo instructed, Plaintiff submitted an HNR a week later, on May 22, 2012, stating that he was “in excruciating pain still” and asking to see the provider as soon as possible. Docs. 120 at 6, ¶ 22; 120-3 at 15. Plaintiff did not see Santo until May 31, 2012. Santo “did not observe any swelling or signs of trauma,” but again gave Plaintiff medical ice and scheduled Plaintiff to see the healthcare provider. Doc. 120 at 6, ¶ 23.

Plaintiff did not see a doctor until June 5,2012, nearly a month after he injured his leg or three weeks after the ADC Defendants say Plaintiff submitted his first HNR about his leg. Dr. Merchant noted in Plaintiffs medical chart left “knee pain” and “tender tibial plateau, unable to one leg stand, flex/ext.” Doc. 120-3 at 11. Merchant ordered an MRI and a consultation with an orthopedic specialist. Doc. 12Ó at 6, ¶ 25. The MRI was not taken for another month, and it showed an “incomplete transverse fracture through the medial tibial metaphysis with diffuse bone marrow edema.” Id., ¶26.

The Court finds there is a genuine issue of material fact sufficient to defeat summary judgment. Defendants do not dispute that Plaintiff broke his leg, and a reasonable jury could conclude that the fact that Santo provided Plaintiff with ice after both visits and indicates that there was some evidence of swelling or trauma. In. making its determination the jury must weigh Plaintiffs and Santo’s credibility. It is not the Court’s function to weigh evidence or make credibility findings at the summary judgment stage. Anderson, 477 U.S. at 249, 106 S.Ct. 2505, Accordingly, the Court will deny summary judgment for Defendant Santo as to count one.

Y. Merchant’s Motion for Summary Judgment.

A. Relevant Facts.

Dr. Merchant asserts that June 5, 2012 was the first time he' examined or treated Plaintiff for his complaints of left knee pain. Doc. 97 at 2, ¶ 6. Merchant saw Plaintiff that, day both for “complaints of continued pain in his left knee and issues related to his eye condition.” Id. Merchant wrote in Plaintiffs medical chart that Plaintiff noted a “popping sound then had pain/swelling of the knee.” Doc. 97-1 at 2. Merchant wrote that Plaintiff had a “tender tibial plateau, unable to one leg stand, flex/ext.” Id. at 8. Merchant also noted that Plaintiff “has keratoconus and need[s] every 3 . month [follow-up] appt [with] ophth.” Id. at 2. He ordered an MRI of the left knee and what appears to be a referral for an ophthalmological consulta- - tion. Id. at 8. The MRI performed on July 3, 2012 showed, in part, an “[[Incomplete transverse fracture through the medial tibial metaphysis with diffuse bone marrow edema,” Id. at 12. On July 13, 2012, Merchant noted the MRI results in Plaintiffs chart and ordered an “ortho surg consult.” Id. at 8.

’ According to Merchant, he next saw Plaintiff on August 7, 2012 for complaints related to his eye condition. Doc. 97 at 2, ¶9, Merchant claims that Plaintiff asked him to discuss the results of his July 3, 2012 MRI, but that “ASPC policy” limited him to only addressing one medical issue with a patient per visit. Id., ¶¶ 9-10. Merchant told Plaintiff that he would have to discuss his MRI test results at another appointment. Id., ¶ 10. Merchant asserts that “ASPC policy was the only reason that [he] did not discuss [Plaintiffs] MRI test results with him on August 7, 2012.” Id.

Merchant asserts that over the next eight weeks, until the end of September 2012, he “instructed his nurses to page [Plaintiff] to return to the medical unit to discuss the results of the July 3, 2012 MRI test.” Id. at 2-3, 1Í11. Merchant states in a declaration that he “personally heard nurses order that [Plaintiff] be paged to the medical unit.”' Doe. 97-1 at 5, ¶ 8. He says that to the best of his knowledge, Plaintiff “did not respond to the pages requesting him to visit the medical unit despite his obvious opportunity to do' so.” Id., ¶9. Merchant asserts, that =if Plaintiff “had visited the medical unit after August 7, 2012 regarding his MRI test results, I would have advised him of the MRI results and provided appropriate treatment.” Id., ¶ 10. He says pain medication was available during this time if Plaintiff “suffered any pain while the incomplete left tibial fracture was healing,” and that he -had. previously provided. Plaintiff with a six-month prescription for 800 mg of Ibuprofen, which would have lasted Plaintiff through the recovery period. Id. ¶ 11. In his opinion, Plaintiffs leg injury would have healed by the end of [September 2012. Id. at 5-6, ¶ 12.

Plaintiff, disputes . each of Merchant’s claims. Plaintiff disputes that he complained of eye problems on August 7, 2012, and he asserts that Nurse Reece told him that the appointment was to discuss the MRI results. Doc. 112 at 3, ¶9. Plaintiff disputes- that ASPC.-policy limited Merchant to only addressing , one issue during his August 7, 2012 visit. Id., ¶ 10. In support, Plaintiff points to his June 5, 2012 appointment with Merchant when Merchant addressed both his knee and leg pain and his eye problems. Id. Plaintiff disputes that Merchant had him paged for eight weeks, asserting that his unit has no public address system. Id., A11. Plaintiff further contends that he was never told to return to medical for “treatment of his fracture[d] tibia” and that if. he did refuse ¡ medical treatment, he would have to sign a refusal form. Id. at 4, ¶12. Plaintiff disputes that 800 mg of Ibuprofen, prescribed for headaches, would have helped his leg pain, which, he contends, continues to this day. Id., ¶ 14; Doc. Ill at 11. He also disputes that his leg has healed, asserting that he received no treatment “until it was too late therefore affecting the long-term results.” Doc. 112 at 4, ¶ 15.

B. Analysis.

1. Serious Medical Need.

Again, Merchant does not appear to dispute that Plaintiff’s leg injury constituted a serious medical need. On this' record, a jury could find that Plaintiffs conditions constituted a serious medical need. See McGuckin, 974 F.2d at 1059. Therefore, the Court’s inquiry focuses on whether there is a genuine issue of material fact regarding whether Merchant was deliberately indifferent to that serious medical need.

2. Deliberate Indifference.

Merchant argues that Plaintiffs deliberate indifference claim against him fails because Plaintiff provides no evidence “that he suffered a permanent injury,” that he “suffered unnecessary and wanton infliction of pain,” or that Merchant did not have him repeatedly paged to review the results of the MRI exam and to prescribe appropriate treatment. Doc. 122 at 2-4. To establish deliberate indifference, a court must determine whether each defendant had the requisite knowledge of a substantial risk of harm; that is, did each defendant know of and disregard a substantial risk to the plaintiffs health. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “If a'person should have been aware of the' risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188.

Merchant contends that “[t]he record contains overwhelming 'evidence " that Plaintiff'suffered no significant injury as a result of going untreated,” Doc. 122 at 2. As evidence, Merchant points to his’own opinion that “Plaintiffs condition would have healed naturally by September 2012.” Id.] Doc. 97-1,at 5-6, ¶12. Merchant also relies on Dr. Vanderhoofs review of Plaintiffs x-rays in November 2012 showing “a healed medial and proximal tibial fracture,” and Vanderhoofs June 2013 report that Plaintiffs tibia was completely healed, that. Plaintiff was “treated properly since the beginning,” and the “end result is excellent.” Doc. 122 at 2-3 (citing Doc. 97-1 at 28). Merchant asserts in his declaration that he agrees, with Dr. Vanderhoofs June 2013 conclusion that Plaintiffs ongoing knee pain “was due to pes bursitis, a condition;unrelated,to his incomplete tibial fracture.” Docs. 97-1 at 6, ¶ 15; 122 at 3.

• Merchant did not provide a- declaration or-affidavit from Dr, Vanderhoof to support that Vanderhoof concluded that Plaintiffs ongoing knee pain was unrelated to Plaintiffs tibial fracture. The Court notes that Vanderhoofs earlier November 15, 2012 report states, in part, “Impression: Left pes bursitis, status post proximal medial tibial fracture.” Doc. 97-1 at 23. While this report indicates a healed tibial fracture, it does not say unequivocally that the pes bursitis is unrelated to the prior fracture,'and, indeed, appears- to-indicate some relationship between the pes bursitis and the fracture. Id. ■ . -

Vanderhoof saw Plaintiff a year after his injury, in June 2013, and "wrote in his report that Plaintiff was “complaining of medial and proximal tibial pain consistent with pes bursitis,” and that he believes the pes bursitis “is likely not related to his fracture or any treatment thereof,” but is likely related to “hamstring tightness.” Id. at 28. Vanderhoof wrote, “I think _ treated properly since the beginning_ quite normally and his bone is completely healed. He did not know all the details, but certainly the end result is excellent.” Id. It is not clear that Vanderhoof was writing that Plaintiffs tibia was treated properly since the day he fractured his leg, or at some later point, such as when Plaintiff first saw Vanderhoof six months later, or whether “completely healed” means the bone healed properly. Vanderhoof did not say who he believed treated Plaintiff properly. Nor does he say anything about the cause or severity of the pain Plaintiff suffered between May 3, 2012 when Plaintiff injured his leg and his first visit with Vanderhoof in November 2012. Vander-hoof s notes are simply too ambiguous to conclude that Vanderhoof is of the opinion that Merchant properly treated Plaintiffs leg fracture or associated pain.

The evidence reflects that Merchant saw Plaintiff on June 5, 2012, noting in Plaintiffs medical chart left “knee pain” and “tender tibial plateau, unable to one leg stand, flex/ext.” Id. at 8. Merchant ordered an MRI of Plaintiffs left knee, and the “Outside Consultation Request” he wrote states that Plaintiff presented with an “acute [left] knee injury and hearing popping sound. [Patient] notes pain and swelling to [left] knee and instability to [left] knee on exam.” Doc. 112 at 26. Based on Merchant’s examination of Plaintiff and his request for an outside orthopedic consultation and MRI, the Court finds that Merchant was aware of Plaintiffs pain and serious medical need. The issue, then, is whether Merchant disregarded that serious medical need.

The MRI was performed on July 3, 2012. Doc. 120-3 at 20. Plaintiff submitted an HNR on July 9, 2012, asking for an appointment with the provider to discuss the results of his MRI. Id. On July 13, 2012, Merchant noted the MRI results in Plaintiffs medical chart and he ordered “ortho surg consult.” Doc. 97-1 at 8. Plaintiff contends — and Merchant does not dispute — that Merchant has never discussed the results of the MRI with him. Doc. Ill at 5.

Plaintiff next saw Merchant on August 7, 2012, but Merchant claims the appointment was to address Plaintiffs eye problem, and, because “ASPC policy” prevented him from discussing more than one issue per patient visit, he did not discuss Plaintiffs MRI results at that time. Doc. 97 at 2, ¶¶ 9-10. Merchant does not provide a copy of any “ASPC policy” that says he is limited to addressing only one issue during a patient visit, and his own notes reflect that he addressed at least two issues during Plaintiffs June 5, 2012 visit relating to Plaintiffs eye problems and his leg pain. Therefore, there is no competent evidence supporting Merchant’s assertion that he could not discuss Plaintiffs MRI results during the August 7, 2012 visit. Moreover, Merchant provides no explanation for why he did not try to see Plaintiff immediately upon receipt of the MRI results, which Merchant noted in Plaintiffs chart on July 13, 2012.

Plaintiff disputes that he was ever paged to return to the medical unit, asserting that his unit does not have a paging system, and he says he would have to sign a form had he refused medical services. Doc. Ill at 14-15. The Court observes that Merchant’s claim that he instructed nurses to page Plaintiff is not corroborated by any of the nurses who allegedly paged Plaintiff, and Merchant presents no notes from Plaintiffs medical chart or elsewhere indicating that he was attempting to contact Plaintiff to have him return to the medical unit or that Plaintiff was refusing to return to the medical unit. Nor does Merchant say that paging an inmate is how such contact is normally made. Moreover, in addition to the July 9, 2012 HNR asking to discuss the MRI results, Plaintiff submitted another HNR dated August 8, 2012, again asking for an appointment to discuss the results of the MRI. Doc. 120-3 at 27. Under “Plan of Action” on the HNR/RN Reese wrote on August 14, 2012, “I will schedule you.” Id. Merchant does not say that an appointment was ever made for Plaintiff to discuss the results of the' MRI. Nor is it clear why Plaintiff would submit HNRs asking for appointments to discuss his MRI results and then ignore pages to go to the medical unit.

The Court finds a genuine issüe of material fact regarding whether Merchant was deliberately indifferent to Plaintiffs serious medical needs once he received the results of Plaintiffs MRI. Because credibility is at issue in this claim, there remain material factual disputes precluding summary judgment in Merchant’s favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Merchant’s motion for summary judgment is therefore denied.

VI. Wexford’s Motion for Summary Judgment.

A. Relevant Facts.

Plaintiff alleged in his Complaint that after he fractured his tibia, Wexford “took months getting [him] to an outside specialist,” proving that Wexford was “operating under a policy of providing deficient health care.” Doc. 1 at 16. Because Plaintiffs claim against Wexford relates to a policy or practice, the Court will not repeat the facts related to Plaintiffs leg injury in May 2012, when he was seen, or the evidence in Plaintiffs medical records.

Wexford provided medical services to inmates under a contract with 'ADC from July 1, 2012 through March 3, 2013. Doc. 89 at 2, ¶ 1. At his deposition, Plaintiff was asked if there were policies in place that were supposed to be followed, and he answered, “Yes, sir.” Docs. 89 at 6, ¶ 42; 89-1 at 55-56 (PI. Dep. at 87:25-88:2). Plaintiff was then asked, “If those policies that were in’ place were followed, dp you think you would have received adequate health care?,” to which Plaintiff answered, “Absolutely.” Docs. 89 at 6, ¶ 42; 89-1 at 56 (PI. Dep. at 88:3-6).

B. Analysis.

Wexford argues that Plaintiff failed to state a claim against it in his Complaint and asks that Plaintiffs claim against it. be dismissed under Federal Rule of Civil Procedure 12(b)(6). Doc. 88 at 7-8. Alternatively, Wexford argues that it is entitled to summary judgment because Plaintiff cannot show that a Wexford policy caused the alleged violation of his constitutional rights, and that Plaintiff admitted at his deposition that if Wexford’s policies were followed by medical staff, “he would have received proper care and treatment.” Id. at 8.

1. Dismissal Under Rule 12(b)(6).

A Rule 12(b)(6) motion to dismiss is almost- never an appropriate response when the Court has already screened a prisoner complaint pursuant to 28 U.S.C. § 1915A(b) and directed the-defendants to respond. The standard for dismissal under Rule 12(b)(6)- (“failure to state a claim upon which relief can be granted”) is virtually identical to the standard under 28 U.S.C. § l9l5A(b) (“fails to state a claim upon which relief may be granted”). After the Court has screened a prisoner complaint pursuant to § 1915A(b), a Rule 12(b)(6) motion to dismiss should he granted only if the defendants can convince the Court that reconsideration is appropriate. Reconsideration is appropriate only “if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (citation omitted).

The Court screened Plaintiffs complaint and determined that his allegations sufficiently stated a plausible claim for relief against Wexford. Doc. 6 at 6. To the extent Defendants seek reconsideration of the screening order, their motion is untimely. See LRCiv 7.2(g)(2) (motion for reconsid-ération must be filed no later than 14 days from date of the order that is subject of the motion). Moreover, Defendants do not address any of the factors that would warrant reconsideration of the screening order. See Sch. Dist. No. 1J, 5 F.3d at 1263. For- these reasons, the Court will deny Wexford’s request for dismissal under Rule 12(b)(6).

2. Motion for Summary Judgment.

A private entity is liable under § 1983 if a plaintiffs constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir.2012); Buckner v. Toro, 116 F.3d 450, 452-53 (11th Cir.1997). A private entity is not liable simply because it employed individuals who allegedly violated a plaintiffs constitutional rights. See Tsao, 698 F.3d at 1139. Therefore, Wexford can. only be held hable under § 1983 for its employees’ civil rights depi'ivations if Plaintiff can show that an official policy or custom caused the constitutional violation. Id.; George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F.Supp.2d 922, 940 (N.D.Cal.2010).

To maintain a claim against Wex-ford as an entity, Plaintiff must meet the test articulated in Monell v. Department of Social Services, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Tsao, 698 F.3d at 1139 (applying Monell to private entities). The requisite elements of a § 1983 claim against a private entity performing a state function are: (1) the plaintiff was deprived of a constitutional right; (2) the, entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiffs constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. Mate v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir.2001) (quotation marks and citation omitted).

To support an Eighth Amendment medical care claim, a prisoner must show a “serious medical need” and that the defendants response to that need was deliberately indifferent. Jett, 439 F.3d at 1096. As noted above, the Court has determined that there is a triable issue of fact regarding whether Défendants Santo and Merchant were deliberately, indifferent to Plaintiffs serious medical needs. The Court therefore proceeds to the other ele.-ments of the Monell test,

An entity may be held liable if injury results from execution of an expressly adopted official policy or as a result of a longstanding practice or custom that constitutes “standard operating procedure” of the entity. Price v. Sery, 513 F.3d 962, 966 (9th Cir.2008). Liability for an improper policy or custom “may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996) (citations omitted). Whether an entity has a policy of deliberate indifference .is generally a jury question. Gibson, 290 F.3d at 1194-95.

Plaintiff argues that Merchant did not review the results of his MRI for ten days “due to Wexford’s policies of not having enough health care workers to treat the large number of inmates.!’ Doc. 113 at 10. Plaintiff also contends that Merchant did not discuss his MRI results or treat his leg on August 7, 2012 “due to Wexford’s policy or protocol precluding him from discussing such. Dr. Merchant was limited to addressing only one medical issue with a patie