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WO SKC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Melinda Gabriella Valenzuela,

Plaintiff, 

v. 

Corizon Health, et al.,

Defendants.

No. CV 18-00211-PHX-MTL (MHB)

ORDER

Plaintiff Melinda Gabriella Valenzuela, who is currently confined in the Arizona 

State Prison Complex (ASPC) Florence in Florence, Arizona, brought this civil rights 

action pursuant to 42 U.S.C. § 1983. (Doc. 8.) Defendants Corizon Health, Inc. 

(“Corizon”), Facility Health Administrator (FHA) Kelli Rogers, and former Arizona 

Department of Corrections (ADC) Director Charles Ryan move for summary judgment.

(Doc. 85.) Plaintiff was informed of her rights and obligations to respond pursuant to Rand 

v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 94), and she opposes the 

Motion for Summary Judgment. (Doc. 100, 125.) Defendant Ryan also filed a Motion to 

Dismiss based on settlement (Doc. 106), and Plaintiff opposes the Motion to Dismiss 

(Doc. 107) and prematurely moves for Rule 60(b) relief. (Docs. 108, 110.)

The Court will grant Defendants’ Motion for Summary Judgment and deny as moot 

Ryan’s Motion to Dismiss and Plaintiff’s Rule 60(b) Motions.

. . . .

. . . .
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I. Background

A. Plaintiff’s Prior Actions and Vexatious Litigant Order

Plaintiff has been incarcerated for repeated criminal violations since June 2001, and 

she has in that time filed more than 200 civil rights actions in this Court against jail or 

prison personnel, which have been documented through November 2017 in four separate 

vexatious litigant orders. See Doc. 9 in CV 02-02452-PHX-JAT (DKD) (57 cases); Doc. 5 

in CV 04-00698-PHX-JAT (DKD) (76 cases); Doc. 10 in CV 13-01366-PHX-NVW 

(MHB) (47 cases); Doc. 10 in CV 16-00951-PHX-NVW (38 Cases).

On August 18, 2004, the Court issued the second of these orders, requiring Plaintiff 

to meet a series of pre-filing requirements, including the filing of a Motion for Leave to 

File, before filing a pro se action in federal court. (Doc. 5 in CV 04-00698.) On December 

20, 2013, the Court issued its third vexatious litigant order, adding the requirement that 

Plaintiff must file copies of her grievances and grievance responses related to her claim(s)

with her Motion for Leave to File. (Doc. 10 in CV 13-01366.) 

On November 27, 2017, before Plaintiff filed her Complaint in this action, the Court 

issued its fourth vexatious litigant order. (Doc. 88 in CV 16-00951-NVW). The Court 

added additional pre-filing requirements, including that for medical claims, Plaintiff must 

file “documentation of the medical condition(s) and/or injuries that goes beyond her own 

allegations in the complaint.” (Id.) The Court explained that this evidence “may be in the 

form of medical records or sworn affidavits from medical professionals that document the 

conditions or injuries alleged in the complaint.” (Id.)

B. Plaintiff’s Motion to File

At the time she filed her original Complaint, Plaintiff filed a Motion for Leave to 

File and an Application to Proceed In Forma Pauperis, which the Court granted, finding 

that Plaintiff had met the “imminent danger” exception to the “Three Strikes Provision” of 

the Prison Litigation Reform Act (PLRA) and had included copies of her relevant 

grievances and a lab test supporting her claimed gluten allergy, which underlies her 

medical claims in this action. (Doc. 12; see Docs 1, 7.)
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C. Plaintiff’s Complaint

On screening of Plaintiff’s one-count Second Amended Complaint under 28 U.S.C. 

§ 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care

claims against Defendants Corizon, Rogers, and Ryan based on their alleged refusals to 

provide her a no gluten diet and required these Defendants to answer these

claims. (Doc. 10.) The Court dismissed the remaining claims and Defendants. (Id.)

II. Summary Judgment Standard

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 (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.

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 Co., 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 (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 Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 

it must “come forward with specific facts showing that there is a genuine issue for trial.” 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 

citation omitted); 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, 
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477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 

all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 

materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 

III. Relevant Facts1

A. Plaintiff’s Dietary Issues

On January 27, 2012, Plaintiff had a lab test performed for reaction to gluten, and 

the test showed she had <0.08 levels of IgE antibodies, which indicated a negative result. 

(Doc. 86 (Defs. Statement of Facts) ¶ 1; Doc. 86 at 9.)2 On February 28, 2012, Plaintiff 

was released on parole. (Doc. 86 ¶ 2.) 

On April 9, 2014, Plaintiff was readmitted to the prison system at ASPC-Alhambra. 

(Doc. 86 ¶ 3.) A Transfer Summary/Continuity of Care form prepared for Plaintiff that 

day by Registered Nurse (RN) Grafia listed as “dietary restrictions” a combination 

soft/vegetarian/lactose free diet. (Doc. 86 at 13.)

On April 24, 2014, Nurse Practitioner (NP) McKamey approved Plaintiff for a “no 

gluten diet” from approximately August 21, 2014 to August 20, 2015. (Id. at 15.)3 

1 Although the Court informed Plaintiff of the requirements of a response, and 

Plaintiff filed a Response and a Separate Statement of Facts (Docs. 101, 102), Plaintiff 

failed to comply with the Court’s Order and Local Rule 56.1(b), which states that “for each 

paragraph of the moving party’s separate statement of facts, [the opposing party must 

provide] a correspondingly numbered paragraph indicating whether the party disputes the 

statement of fact set forth in that paragraph. LRCiv 56.1 (b) (emphasis added). (See

Doc. 94 at 2.) Instead, Plaintiff provided only her own, independently-numbered 

paragraphs, in which she either rewrites entire paragraphs of Defendants’ facts without 

clearly agreeing to or refuting specific facts, or she attempts to add facts without separately 

setting them forth as additional facts. The court is mindful of the Ninth Circuit’s 

overarching caution in this context that district courts are to “construe liberally motion 

papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment 

rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Thus, where the 

Court can readily identify relevant controverting facts, and Plaintiff has identified where 

in the record these facts find support, the Court will include these facts. The Court will 

otherwise consider Defendants’ facts undisputed. Additionally, the Court will not attempt 

to locate additional facts that Plaintiff has not separately set forth as additional facts. (See

Doc. 94 (Rand Order).)

2 The citation refers to the document and page number generated by the Court’s 

Case Management/Electronic Case Filing system.

3

It is not clear from the record evidence what prompted this approval or why it was 

only set to take effect four months later. 
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On February 13, 2015, NP McKamey discontinued Plaintiff’s no gluten diet, noting

“IM caught fishing bread from another inmate” and “Labwork 2012 documents no allergy 

to gluten.” (Id.)

On March 26, 2015, Plaintiff submitted a medical grievance appeal to then-Director 

Ryan regarding the discontinuation of her no gluten diet, and Ryan denied the appeal, 

noting that Plaintiff’s diet had been discontinued by a medical provider because Plaintiff 

was caught “fishing” bread from another inmate and because Plaintiff’s 2012 laboratory 

test showed “no evidence of allergy to gluten.” (Id. at 17.) Ryan noted that “the decision 

to order special diets is a clinical decision based on the prescriber’s clinical findings and 

medical judgment,” and is not “based on the dictates of the patient.” (Id.)

On April 6, 2017, Plaintiff submitted a health needs request (HNR), stating “I need 

to please see the ATP to get the diet for the allergy I have. I was also told it could help alot 

[sic] of my issues.” (Doc. 86 at 88.)

On April 29, 2015, Plaintiff began a vegan diet, and, on April 29, 2017, the vegan 

diet was renewed. (Id. at 26.)

On May 2, 2017, Nurse Donna Mendoza saw Plaintiff in response to a variety of 

issues Plaintiff had raised in eleven separate HNRs, including a request for a no gluten diet. 

(Doc. 86 at 37.) Nurse Mendoza noted that a previous gluten allergy test was negative but, 

upon consultation with NP Ende, she ordered a new lab test “to ensure if there is a gluten 

allergy.” (Id. at 40.) 

On May 8, 2017, Plaintiff had a “gluten, IgG (RAST)” lab test to determine if she 

had a gluten allergy that required a gluten-free diet, and the result was 3.9, which was noted 

as “high.” (Id. at 91.) 

On May 17, 2017, before this test was reviewed, Dr. Khan prescribed a special diet 

for Plaintiff to receive snacks, consisting of graham and/or saltine crackers, when taking

her psychiatric medications at mornings and bedtimes. (Doc. 86 ¶¶ 13−14.) 
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On May 20, 2017, NP Ende reviewed the results of Plaintiff’s gluten test and wrote

“abnormals noted, no action required currently, will address at next appointment.” (Id. at 

92.) 

On September 13, 2017, Dentist L. Russell approved Plaintiff for a mechanical soft 

diet based on “TMJ/Lower Jaw, Paresthesia.” (Id. at 55.) At various times, Plaintiff was 

also on renal dialysis and clear liquid diets. (Doc. 86 ¶ 11.) Except for the clear liquid 

diet, none of these diets contained limitations on wheat or gluten. (Id. ¶ 12.)

On September 22, 2017, Plaintiff filed an Inmate Informal Complaint Resolution in 

which she complained that she had asked medical to renew her “allergy diet” due to her 

“allergy to milk and wheat,” and medical had just “blown it off and not done anything.” 

(Doc. 89 at 94.) She requested to have her allergy diet reordered. (Id.) 

On September 28, 2017, Plaintiff saw NP Nancy Smith regarding labs for her 

transgendered care, and NP Smith reviewed the labs, discussed Plaintiff’s complaints of 

“feeling bloated and emotional,” and educated Plaintiff on the side effects of her treatment. 

(Id. at 41.) Plaintiff also wanted to discuss her various special needs orders (SNOs), and 

Smith noted that Plaintiff “also has vegan diet in place, but [Plaintiff] wants allergy diet, 

has a lab work to support Gluten allergy 5/2017. Current Vegan diet in place until 4/29/18 

— [Plaintiff] tolerating diet with no allergy S/S, weight stable.” (Id.)

On October 11, 2017, Plaintiff was seen in medical for a “multi-disciplinary staffing 

meeting,” attended by the “FAA, AFA, medical director and corrections . . . to review 

recent HNRs, medications, and SNO’s.” (Id. at 46.) The FAA notified Plaintiff that all 

SNOs were then discontinued and staff would go over each one individually to assess 

validity and need. (Id.) These included SNOs for 

Vegan Diet, Dental/Mechanical Soft Fine Chop diet with AM 

& PM snack (maintained by psych), Perl-wash, dial soap, 

derma vera, wipes, large diapers, baby powder, cerve lotion, 

back support, knee support, right wrist brace, side restraint, 

cane, shower chair, tape, cavi-wipes, hand sanitizer, extra toilet 

paper, wedge, low bunk/low tier.
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(Id.) Upon review, Plaintiff was to keep the right wrist brace, dial soap, wipes, and side 

restraints. (Id.) Nursing was also concerned that Plaintiff was consuming more 

medications than she needed because she was requesting refills prior to refill dates, and her 

medications were therefore changed to “watch-swallow.” (Id.) Plaintiff was to be seen in 

the clinic the next day for stomach, back, foot, and breast issues. (Id.)

On October 29, 2017, Assistant FHA (AFHA) Diana Labar responded to Plaintiff’s 

September 22, 2017 Informal Complaint regarding her allergy diet, and AFHA Labar 

noted, “You were seen in a multidisciplinary meeting on 10/11/17 at which time all of your 

diet concerns were addressed.” (Id. at 95.) 

On November 8, 2017, Plaintiff filed an Inmate Grievance in which she complained 

that she had submitted multiple health needs requests (HNRs) and filled out the form to 

receive an “allergy diet” based on her allergies to milk and wheat, but these complaints had 

been ignored. (Doc. 102-1 at 38.)

On November 16, 2017, FHA Rogers responded to Plaintiff’s November 8, 2017 

Inmate Grievance, stating, “After review of your medical record; it has been discovered 

the lab test has shown that you are not allergic to Gluten and so the allergy diet was 

discontinued. You are however on a dental diet and it is active.” (Doc. 102-2 at 2.)

On December 14, 2017, Plaintiff was approved for the no gluten diet by Dr. P. 

Hopkins, M.D. (Id. at 6.) The diet was active until December 18, 2018. (Doc. 86 ¶ 27.)

B. Defendant Rogers

At the relevant time of this action, Defendant Rogers was employed by Corizon as 

the FHA at ASPC-Lewis. (Id. ¶ 29.) As the FHA, Rogers’ duties included investigating 

and responding to inmate grievances regarding medical issues. (Id. ¶¶ 30−31.) Rogers 

was not, herself, a medical provider and had no authority to make clinical decisions,

prescribe medical diets, or question the decisions of unit medical providers. (Id. ¶ 34.) 

Rogers does not remember investigating or responding to Plaintiff’s diet-related 

grievances, but she ordinarily responds to requests for no gluten diets by looking for a 

positive IgG or RAST test in the medical chart. (Id. ¶ 35.) Based on Rogers’ review of 
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her response to Plaintiff’s November 8, 2017 Inmate Grievance, Rogers believes she relied 

on the information contained in NP McKamey’s February 2015 gluten diet discontinuation

order to deny Plaintiff’s request for a no gluten diet and that if Plaintiff’s medical records 

contained a positive IgG test, she overlooked this during her investigation. (Id. ¶¶ 35−38.)

Rogers recalls having several face-to-face encounters with Plaintiff to resolve other 

medical issues, and she remembers these as being congenial. (Id. ¶ 39.)

C. Defendant Ryan

At the relevant time of this action, Defendant Ryan was the ADC Director, the duties 

of which are set forth in Arizona Revised Statutes § 41-1604(A)(7). (Id. ¶ 41.) Ryan is 

not a medical provider and was not personally involved in providing healthcare to 

prisoners; instead, Ryan oversaw the delegation of such duties to ADC staff and contract 

employees pursuant to his delegation authority under Arizona Revised Statutes § 41-

1604(A)(7) and (B)(2)(D). (Id. ¶¶ 42−43.) 

Since becoming the Director in 2009, Ryan has always delegated the responsibility 

of responding to Inmate Grievance Appeals to other staff. (Id. ¶ 45.) During the March 

2015 timeframe, he delegated this responsibility to the Assistant Director of the Health 

Services Contract Monitoring Bureau, Richard Pratt. (Id.) As such, Ryan had no personal 

knowledge of Plaintiff’s March 2015 Inmate Grievance Appeal. (Id.) 

After October 2016, ADC Department Order (DO) 802 was revised to make the 

decision of the FHA final as to all medical grievances available within ADC; therefore, 

after this date, Ryan had no further role in responding to medical grievances. (Id. ¶ 46.) 

Ryan is not personally familiar with Plaintiff or her medical issues and complaints, 

including those related to her requests for a no gluten diet. (Id. ¶ 47.) 

IV. Motion for Summary Judgment

To prevail on an Eighth Amendment medical claim, a prisoner must demonstrate 

“deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 

(9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are two prongs

to this analysis: an objective prong and a subjective prong. First, as to the objective prong, 
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a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (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) (internal citation omitted). 

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.” McGuckin, 974 F.2d at 

1059-60. 

Second, as to the subjective prong, a prisoner must show that the defendant’s 

response to that need was deliberately indifferent. Jett, 439 F.3d at 1096. An official acts 

with deliberate indifference if he “knows of and disregards an excessive risk to inmate 

health or safety. Farmer, 511 U.S. at 837. To satisfy the knowledge component, the 

official must both be aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exists, and he must also draw the inference.” Id. “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) (internal citations and quotation marks omitted), or when they fail 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 care 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); see Estelle, 429 U.S. at 106 (negligence does not rise to the level of a 

constitutional violation). 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 
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1096; see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing 

medical treatment does not constitute Eighth Amendment violation unless delay was 

harmful). 

A. Serious Medical Need

Defendants argue that Plaintiff cannot demonstrate she had a serious medical need. 

(Doc. 85 at 9−10.) To support this argument, Defendants rely on facts not previously set 

forth in their Statement of Facts or evidence to distinguish between Plaintiff’s 2012 IgE 

lab test and her May 2017 IgG lab test, thereby attempting to discount the relevance of the 

latter test results. (Id. at 10.) They argue that in 2012, Plaintiff was tested for gluten 

“allergy,” and in 2017 she was only tested for “gluten sensitivity,” which they maintain is 

not a serious medical need. (Id.)

4

 Defendants then cite to online sources to support that 

the symptoms of gluten sensitivity (as opposed to gluten allergy) “range from headaches 

and nausea to depression, anxiety, and hyperactivity, or simply just fatigue, bloating, or 

mood changes after eating.” (Id.) They also argue that Plaintiff has never shown she 

suffered a serious reaction to gluten products at any time and therefore cannot demonstrate 

a serious medical need. (Id.)

Defendants’ attempt to rely on facts not properly set forth on the record violates 

both the Federal Rules of Civil Procedure, which require a party moving for summary 

judgment to cite to “particular parts of the record, including depositions, documents, 

electronically stored information, affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(a)), 

and the corresponding Local Rules, which require the moving party to set forth in the 

4 Defendants’ own statements of fact and other evidence about the purpose and 

significance of these tests appear to contradict Defendants’ arguments. For example, in 

their Statement of Facts, Defendants state that the purpose of Plaintiff’s 2012 “IgE” test 

was to “analyze her sensitivity [not allergy] to gluten” (Doc. 86 ¶ 1) (emphasis added). 

Additionally, the lab report from Plaintiff’s May 2017 IgG or “RAST” test states that the 

test was ordered “to determine if Inmate has a gluten allergy [not sensitivity] and requires 

a gluten free diet” (Doc. 86 at 91) (emphasis added). Moreover, regardless of the 

distinction Defendants attempt to make, Defendant Rogers testified in her declaration that, 

when researching inmate requests for a gluten-free diet, she looked for “a positive gluten 

IgG (RAST) test in the medical chart” and if she finds “abnormal” results—which the 

record shows applied in Plaintiff’s case—she informs a provider. (Doc. 86, Ex. N (Rogers 

Decl.) ¶ 9.) 
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separate statement of facts “each material fact on which the party relies in support of the 

motion.” LRCiv. 56.1(a). Defendants’ further attempt to rely merely on the arguments of 

counsel to interpret the significance of Plaintiff’s medical findings is also not well taken. 

See Barcamerica Int’ l USA Trust v. Tyfield Imps., Ind., 289 F.3d 589, 593 n. 4 (9th Cir. 

2002) (arguments and statements of counsel are not evidence) (citation omitted); Comer v. 

Schriro, 480 F. 3d 960, 988 (9th Cir. 2007). 

In addition to these defects, Defendants arguments that Plaintiff cannot show she 

had a serious medical need are substantively deficient. First, the range of symptoms 

Defendants, themselves, claim can result from gluten sensitivity—i.e., headaches, nausea, 

depression, bloating, mood changes—are ones that can significantly affect an individual’s 

daily activities. See McGuckin, 974 F.2d at 1059−60. Additionally, NP Ende found the 

“abnormals” on Plaintiff’s May 2017 gluten test worthy of comment and treatment—even 

if not immediate intervention—and Dr. Hopkins subsequently approved Plaintiff for a no 

gluten diet. (Doc. 86 at 92; 102-2 at 6.) Moreover, Plaintiff alleged in her verified 

pleadings that eating gluten products “nearly caused her to choke to death” and led to her 

experiencing several episodes of swelling and hives. (Doc. 35 at 2, 3.) On this record, 

there is at least a triable issue of fact that Plaintiff had a serious medical need. The analysis 

therefore turns on the second prong, whether Defendants showed deliberate indifference to 

that need.

B. Deliberate Indifference

Where there are numerous defendants who allegedly acted with deliberate 

indifference, the Court must take an 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 look at “whether [each] individual defendant was in a position to 

take steps to avert the [harm] but failed to do so intentionally or with deliberate 

indifference.” Id.

. . . .

. . . .
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1. Defendant Rogers

Defendants argue that Plaintiff’s claim against Defendant Rogers fails as a matter 

of law because Rogers’ only involvement in Plaintiff’s medical care was to deny Plaintiff’s 

medical grievance, which they argue the Ninth Circuit has made clear is insufficient to 

constitute a constitutional violation. (Doc. 85 at 12.) Defendants rely on Shehee v. Luttrell, 

199 F. 3d 295, 300 (6th Cir. 1999), for the proposition that, where a defendant’s only 

involvement in a constitutional deprivation is to deny an administrative grievance, failure 

to provide a remedy does not constitute a constitutional violation. (Id.) 

Defendants’ reliance on Shehee, a Sixth Circuit case, is misplaced. Under Ninth 

Circuit law, a defendant can be held liable for a failure to act. See Taylor v. List, 880 F.2d 

1040, 1045 (9th Cir. 1989). As such, a prison administrator shows deliberate indifference 

to a prisoner’s medical needs if he or she “knowingly fail[s] to respond to an inmate’s 

requests for help.” Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014). When 

responding to medical grievances, non-medical administrators may rely on, and are not 

required to second-guess, the judgments of qualified medical professionals. Id. But if 

prison officials “choos[e] to rely upon a medical opinion which a reasonable person would 

likely determine to be inferior,” their actions may amount to “the denial of medical 

treatment[] and the ‘unnecessary and wanton infliction of pain.’” Hamilton v. Endell, 981 

F.2d 1062, 1067 (9th Cir. 1992) overruled in part on other grounds as recognized in Snow, 

681 F.3d at 986. 

Here, the evidence shows that Rogers’ only involvement in Plaintiff’s medical care 

was to respond to Plaintiff’s November 8, 2017 Inmate Grievance, in which Plaintiff 

complained that medical staff had repeatedly ignored her HNRs for an “allergy diet” based 

on her alleged allergies to milk and wheat. (Doc. 102-1 at 38; Doc. 102-2 at 2.) Rogers’ 

stated reason for denying this grievance was that, based on her review of Plaintiff’s medical 

records, Plaintiff’s allergy diet had been discontinued due to a lab test showing Plaintiff 

was not allergic to gluten. (Doc. 102-2 at 2.) Rogers testifies that she believes she relied 

on the information contained in NP McKamey’s February 2015 order discontinuing 
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Plaintiff’s no gluten diet based on Plaintiff’s 2012 lab work and a report that Plaintiff had 

been caught “fishing bread from another inmate” to determine that Plaintiff did not require 

a no gluten diet. (Rogers’ Decl. ¶ 12.) She further testifies that, if a positive IgG (RAST) 

test was also in Plaintiff’s medical records, she must have overlooked this test. (Id. ¶ 13.)

This evidence shows, at most, that Rogers was negligent in failing to discover 

Plaintiff’s May 2017 lab test and in consequently failing to bring the abnormal test results 

to the attention of Plaintiff’s medical providers, who, unlike Rogers, could have prescribed

a no gluten diet. Because these facts only demonstrate an isolated instance of neglect that 

was subsequently remedied by medical staff, however, they are insufficient to show that 

Rogers knew of and was deliberately indifferent to Plaintiff’s serious medical needs. See 

Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990) (“[i]n determining deliberate 

indifference, we scrutinize the particular facts and look for substantial indifference in the 

individual case, indicating more than mere negligence or isolated occurrences of neglect”). 

Plaintiff argues in her Response that Rogers “did not properly investigate” 

Plaintiff’s grievance or she would have seen and properly dealt with Plaintiff’s May 2017 

lab test. (Doc. 101 at 16.) Inferring in Plaintiff’s favor that Plaintiff’s May 2017 lab test 

was in Plaintiff’s medical files at the time of Rogers’ investigation, and Rogers failed to 

properly review these files, these facts do not change the above analysis. As noted, absent 

evidence that Rogers was aware of and deliberately disregarded Plaintiff’s most recent lab

test, Roger’s one-time improper investigation, while negligent, is insufficient to show 

deliberate indifference. Plaintiff also argues that Rogers personally addressed Plaintiff on 

multiple occasions and “was aware consciously that Plaintiff had an allergy to gluten.” (Id.

at 17.) But this bare assertion, absent any facts about when these encounters occurred or 

what Plaintiff conveyed to Rogers at the time, also does not create a genuine issue of 

material fact that Rogers had personal knowledge of and deliberately disregarded 

Plaintiff’s gluten allergy. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 

Cir. 2007) (“[c]onclusory, speculative testimony in affidavits and moving papers is 

insufficient to raise genuine issues of fact and defeat summary judgment”); Nilsson v. City 
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of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007) (“a conclusory, self-serving affidavit, 

lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue 

of material fact”). The Court will grant Defendants’ Motion for Summary Judgment as to 

Defendant Rogers.

2. Defendant Ryan

Defendants argue that Plaintiff’s claim against Defendant Ryan fails as a matter of 

law because, at the time Ryan denied Plaintiff’s March 26, 2015 Grievance Appeal, there 

was no evidence that Plaintiff had a gluten allergy that required her to receive a no gluten 

diet. (Doc. 85 at 13−14.) They further argue that this claim fails due to a lack of personal 

participation because there is no evidence Ryan had any further involvement in responding 

to medical grievances after October 2016, when DO 802 was revised to give the FHA, not 

the ADC Director, final review of medical grievances. (Id. at 14.) 

To the extent Plaintiff seeks to sue Ryan in his personal capacity, it is undisputed

that there was no evidence in Plaintiff’s medical records that Plaintiff had a gluten allergy 

at that time Ryan denied Plaintiff’s March 2015 Grievance Appeal. Therefore, Plaintiff

cannot show that Ryan’s denial of that appeal was deliberately indifferent to any known 

serious medical needs. Moreover, as a non-medical administrator, Ryan was entitled to

rely on the judgments of qualified medical professionals when responding to medical 

grievances, Peralta, 744 F.3d at 1086, and there are no facts showing it was unreasonable 

in this instance for Ryan to rely on the clinical findings and medical judgement of NP 

McKamey who had discontinued Plaintiff’s no gluten diet. (Doc. 86 at 17.) Ryan also 

cannot be held vicariously liable for the denial of any of Plaintiff’s later grievances, when 

Ryan no longer had any role in the medical grievance process. There is no respondeat

superior liability under § 1983, and therefore, a defendant’s position as the supervisor of 

persons who allegedly violated a plaintiff’s constitutional rights does not impose liability. 

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. 

Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor, 880 F.2d 1040, 1045 (9th Cir. 1989). 

Accordingly, the Court will grant summary judgment to Ryan in his personal capacity.
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3. Defendants Ryan (Official Capacity) and Corizon

To prevail on a claim against Ryan in his official capacity or against Corizon as a 

private entity serving a traditional public function, Plaintiff must meet the test articulated 

in Monell, 436 U.S. at 690−94. See also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 

(9th Cir. 2012) (applying Monell to private entities acting under color of state law). 

Accordingly, Plaintiff must show that an official policy or custom caused the constitutional 

violation. Monell, 436 U.S. at 694. To make this showing, Plaintiff must demonstrate that 

(1) she was deprived of a constitutional right; (2) Ryan and/or Corizon had a policy or 

custom; (3) the policy or custom amounted to deliberate indifference to Plaintiff’s 

constitutional right; and (4) the policy or custom was the moving force behind the 

constitutional violation. Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 

F.3d 1101, 1110-11 (9th Cir. 2001). 

As set forth above, to support an Eighth Amendment deprivation, a prisoner must 

demonstrate a serious medical need and deliberate indifference to that need. Jett, 439 F.3d 

at 1096. Because the Court has already found questions of fact that Plaintiff had a serious 

medical need, the constitutional violation prong of the Monell analysis hinges on whether 

anyone showed deliberate indifference to that need.

Defendants argue that Plaintiff cannot show that Corizon or any of its agents were 

both aware of and deliberately indifferent to any serious medical needs of Plaintiff, 

including her need for a no gluten diet. (Doc. 85 at 10−11.) Defendants point out that, as 

of February 13, 2015, when NP McKamey discontinued Plaintiff’s no gluten diet, 

Plaintiff’s lab results from 2012 did not show Plaintiff had a gluten allergy, and there was 

no medical evidence to support that she needed this diet. (See Doc. 86 at 9, 13.) Then, on 

May 2, 2017, after Plaintiff again complained of having a gluten allergy,

5 Nurse Mendoza

5 Defendants state that NP Smith saw Plaintiff in response to a May 1, 2017 HNR 

requesting a no gluten diet (Doc. 85 at 11), but they do not cite to any evidence of this, and 

the Court was unable to locate any HNR Plaintiff filed on that date. The only HNR in 

evidence that appears to relate to Plaintiff’s gluten issues is Plaintiff’s April 6, 2017 

HNR—filed one month earlier—in which Plaintiff wrote, “I need to please see the ATP to 

get the diet for the allergy I have. I was also told it could help alot [sic] of my issues.” 

(Doc. 86 at 88.)
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ordered a new gluten test (see id. at 37, 40), after which NP Ende reviewed the test results 

but did not perceive them as being serious enough to warrant immediate intervention. 

(Doc. 85 at 11.) 

Defendants further note that, when NP Smith saw Plaintiff on September 27, 2017, 

Smith noted that Plaintiff was doing well on the vegan diet and, despite Plaintiff’s May 

2017 lab results, there were no signs or symptoms that Plaintiff had a gluten allergy, and 

Plaintiff’s weight was stable. (Id.; see Doc. 89 at 94.) Defendants argue that this evidence 

shows that neither NPs Ende or Smith nor any other provider perceived of and deliberately 

disregarded a serious risk to Plaintiff’s health. (Doc. 85 at 11.) 

Defendants have met their initial burden of showing that no Corizon providers knew 

of and were deliberately indifferent to any serious medical needs arising from Plaintiff’s 

gluten allergy. In her Response, Plaintiff argues that she suffered adverse reactions to 

gluten during the period between February 13, 2015 and December 2017, when she was 

denied a no gluten diet. (Doc. 101 at 14−15.) In support, she asserts that she “had to have 

I.C.S. activated due to allergy reaction,” but she provides no facts about when this 

happened, how her “allergy reaction” was tied to gluten, or who was made aware of this 

incident to create a genuine issue of material fact that anyone knew her gluten allergy posed 

a substantial risk of serious harm and nonetheless deliberately disregarded this risk.

6

 

Plaintiff also argues that NP Ende knew the results of her May 2017 lab test and 

Corizon knew she qualified for a no gluten diet, but “they simply allowed NP Ende to 

ignore the lab test when the test was specifically ordered to see if she needed the [no] gluten 

diet.” (Id. at 15−16.) Based on the evidence presented, it is not clear that NP Ende or any 

other provider followed up on Plaintiff’s May 2017 lab results, once reviewed, or discussed 

them with Plaintiff as NP Ende had noted to do “at next appointment.” (See Doc. 86 at 

92.) There is simply no evidence anyone took any action on these results for the next four 

6

In her Statement of Facts, Plaintiff also includes instances of choking and 

swallowing issues that occurred in 2018 and 2019, after the operative time of her Second 

Amended Complaint and after she was already on a no gluten diet, which are unrelated to 

the claims in this action. (See Doc. 102 ¶¶ 41−44.)
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months until Plaintiff filed her September 22, 2017 Inmate Informal Complaint Resolution,

complaining that she had asked medical to renew her “allergy diet” due to her “allergy to 

milk and wheat,” and medical had just “blown it off and not done anything.” (Doc. 89 at 

94.) But Plaintiff also fails to produce any evidence about her symptoms or what she told 

medical staff during this time that would create a genuine issue of material fact that any

medical personnel knew she faced a substantial risk of serious harm absent a no gluten diet, 

and they deliberately disregarded that risk. Instead, the evidence shows, and Plaintiff does 

not dispute, that when NP Smith saw Plaintiff on September 28, 2017, Smith found that 

Plaintiff was doing well on her vegan diet and had no signs or symptoms of allergy. 

(Doc. 86 at 41.) Plaintiff also acknowledges in her Response that she was on a vegan diet 

at that time, the vegan diet “consisted of vegetables and soy meat[ and n]o gluten items,” 

and in May 2017, she started getting a daily snack of peanut butter and chips “that was 

substituted in place of crackers due to her allergy to gluten.” (Doc. 101 at 14−15.) 

In summary, Plaintiff fails to create a triable issue of fact that any Corizon medical 

providers or other prison staff both knew of and were at any time deliberately indifferent 

to a substantial risk of serious harm to Plaintiff from not having a no gluten diet. Absent 

this showing, Plaintiff cannot demonstrate a constitutional violation, and her Monell claims 

against Ryan and Corizon fail as a matter of law. Accordingly, the Court will grant 

summary judgment to Ryan and Corizon on these claims and will not discuss the remaining 

Monell factors. 

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendants 

Corizon, Rogers, and Ryan’s Motion for Summary Judgment (Doc. 85) and Defendant 

Ryan’s Motion to Dismiss (Doc. 106).

(2) Defendants Corizon, Rogers, and Ryan’s Motion for Summary Judgment

(Doc. 85) is granted, and this action is dismissed.

(3) Defendant Ryan’s Motion to Dismiss (Doc. 106) and Plaintiff’s Rule 60(b)

Motions (Docs. 108, 110) are denied as moot.
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(4) This action is dismissed with prejudice. The Clerk of Court must enter 

judgment accordingly. 

Dated this 2nd day of March, 2020.