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KAB/LR

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael R. Ward,

Plaintiff, 

v. 

Nathaniel Harris, et al.,

Defendants.

No. CV 18-00694-PHX-JAT (DMF)

ORDER

Plaintiff Michael R. Ward, who is currently confined in the Arizona State Prison 

Complex(ASPC)-Eyman, brought this civil rights action pursuant to 42 U.S.C. § 1983. 

Defendants Correctional Officer (CO) Harris, Dr. Graham, and Corizon Healthcare 

(Corizon) move for summary judgment. (Docs. 72, 74.) Plaintiff was informed of his 

rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 

1998) (en banc) (Docs.76, 77), and he opposes the Motions. (Docs. 83, 95.)

I. Background

On screening Plaintiff’s First Amended Complaint (Doc. 38) under 28 U.S.C. 

§ 1915A(a), the Court determined that Plaintiff stated Eighth Amendment claims based on 

deliberate indifference to serious medical needs against Defendants Harris (Count One), 

Graham (Count Two), and Corizon (Count Four). (Doc. 35.) The Court dismissed the 

remaining claims and Defendants. (Docs. 7, 35.)

. . . .

. . . .
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II. Legal 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, 

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. Facts

Plaintiff was injured in an all-terrain vehicle accident at the age of 14, which caused 

Plaintiff to experience sensitivity to light. (Doc 1 at 3.) After entering the custody of the 
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Arizona Department of Corrections (ADC), while housed in minimum security, Plaintiff

was issued a Special Needs Order (SNO) for sunglasses due to photosensitivity by NP King

on or about April 3, 2015 with an approximate end date of April 3, 2016. (Doc. 96-1 at 1.) 

After Plaintiff was transferred to ASPC-Eyman, Special Management Unit (SMU) I, a 

maximum custody unit,1 on February 20, 2016, Plaintiff was provided a SNO for 

sunglasses with a listed expiration date of January 1, 9999 by Registered Nurse Michael 

Baker. (Doc. 75 ¶ 1, Doc. 73 ¶ 15, Doc. 75 at 8-9; Doc. 96-1 at 3.)

On August 13, 2016, Defendant CO Harris confiscated Plaintiff’s sunglasses stating 

that Plaintiff’s SNO for sunglasses had been revoked. (Doc. 1 at 4; Doc. 73 ¶ 19.) Harris 

does not recall seeing the print-out discontinuing Plaintiff’s SNO for sunglasses, but his 

practice is to rely on such documents. (Doc. 73 ¶ 21.) Harris recalls that, at some point,

Dr. Graham confirmed that Plaintiff’s SNO for sunglasses was no longer valid. (Id. ¶ 22.) 

Dr. Graham does not remember whether he ever spoke to Harris about Plaintiff’s SNO. 

(Doc. 75 at 3 ¶ 12.) Pursuant to the ADC’s Department Order, DO 909, inmates in 

minimum, medium, and close custody are permitted to have sunglasses, but inmates in 

maximum security are not allowed to possess sunglasses except that an inmate is allowed 

to have items that are “clinically indicated for the inmate’s medical condition(s).” (Doc. 

73-1 at 3 ¶ 7; Doc. 73-1 at 9.)2 Defendants assert that sunglasses pose a risk in maximum 

custody units because they obstruct officers from being able to see an inmate’s eyes, and 

they can be made into weapons. (Id. ¶ 8.). (Id. ¶¶ 5-7.) 

On August 14, 2016, when Plaintiff was provided outdoor recreation without 

sunglasses, he contracted a headache, became dizzy, and began to vomit due to the lack of 

protection for the photosensitivity in his eyes. (Doc. 38 at 18.) Plaintiff went to medical 

1

Inmates in maximum security are considered high risk and are housed in restrictive 

environments (Doc. 73-1 at 2.)

2 Defendant Dr. Graham claims, without citation to any supporting documents, that 

“for an inmate to have a SNO for sunglasses the inmate must have a diagnosis for a medical 

or optical disease where sunglasses are necessary—such as retinitis pigmentosa, ocular 

albinism, a significant corneal scar, or other rare eye diseases.” (Doc. 75 at 40.)
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and saw Registered Nurse Nieblas, the Director of Nursing, who issued plaintiff a new 

SNO for sunglasses due to photosensitivity. (Doc. 75 ¶ 3.) On August 16, 2016, Defendant 

Graham revoked the new SNO for sunglasses issued by RN Nieblas, without examining 

Plaintiff, noting that:

This reviews [sic] being created to rescind the SNO for 

sunglasses provided by ADON Nieblas. Unknown to ADON 

Nieblas, this inmate does not possess any of the diagnoses that 

qualify for sunglasses, particularly at SMU 1. The chronic 

diagnoses that qualify are retinitis pigmentosa and ocular 

albinism (and occasionally chronic iritis). For a short period 

of time, acute keratitis and acute iritis can qualify. 

I will go into the eOMIS and rescind the SNO for 

sunglasses. 

(Doc .75 ¶ 4.)

In December 2016, Plaintiff was transferred out of maximum custody. (Doc. 96 at 

10.) On December 18, 2016, Plaintiff was seen by an optometrist working at the ADC, Dr. 

Taddonio, D.O., who diagnosed Plaintiff with Hypermetropia and Presbyopia. (Doc. 96-1 

at 11, 12.) Upon this evaluation and diagnosis, Dr. Taddonio ordered Plaintiff reading 

glasses and wrote that Plaintiff should be given a SNO for sunglasses. (Doc. 96-1 at 12.)

IV. Discussion

Under the Eighth Amendment, a prisoner must demonstrate that a defendant acted 

with “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 the deliberate-indifference analysis: an objective prong and a subjective prong. 

First, 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, 1059-60 (9th Cir. 1992), overruled on other grounds 

by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal 

citation omitted). Examples of 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 
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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, 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; 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.” Farmer v. Brennan, 511 U.S. 825, 837 (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) (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. 

A. Defendant Graham

In his Motion for Summary Judgment, Defendant Graham argues that he was not 

deliberately indifferent to Plaintiff’s serious medical needs because Plaintiff has not 

produced any evidence that Graham’s decision to rescind the SNO was medically 

unacceptable under the circumstances or that he made the decision in conscious disregard 

to Plaintiff’s health. Graham argues that he rescinded the SNO because Plaintiff “did not 

have a medically appropriate optical or medical diagnosis that showed the medical 

necessity for sunglasses.” (Doc. 74 at 9.)

1. Serious Medical Need

Plaintiff avers that he has suffered from photosensitivity since he was injured in an 

ATV accident when he was fourteen-years-old. Plaintiff’s medical records indicate that he 

reported the photosensitivity to providers, and Plaintiff avers that he reported headache,

dizziness, and vomiting when exposed to sun without sunglasses. Defendant Graham 
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admits that he never examined Plaintiff’s eyes,

3

that he was a general medical provider and 

would not have examined Plaintiff’s eyes, and that, in his opinion, Plaintiff did not qualify 

for sunglasses because he did not suffer from a list of illnesses that Graham had predetermined warranted sunglasses. The evidence in the record shows that prior to Defendant 

Graham discontinuing Plaintiff’s SNO, multiple nurses, including the Director of Nursing,

thought sunglasses were medically necessary for Plaintiff’s condition and issued him a 

SNO for sunglasses. Defendants have produced no evidence suggesting that those nurses 

gave Plaintiff a SNO for anything other than medical necessity. The evidence likewise 

shows that the specialist optometrist also issued Plaintiff a SNO for sunglasses after 

Graham discontinued the SNOs. Accordingly, there is evidence in this record from which 

a jury could conclude that Plaintiff had a serious medical need. 

2. Deliberate Indifference 

Here, Defendant Graham discontinued Plaintiff’s SNOs on two occasions after the 

SNOs had been given to Plaintiff by providers who examined Plaintiff. Defendant Graham 

did not examine Plaintiff and did not attempt to examine Plaintiff. Defendant Graham 

argues that he discontinued the SNOs because Plaintiff did not have one of the medical 

conditions that would have allowed Plaintiff to have a SNO for sunglasses, but the medical 

conditions Graham lists are not mentioned anywhere in Corizon’s policy and it is entirely 

unclear why those are the only medical conditions that would have qualified Plaintiff for 

sunglasses, especially without examination from the provider prior to discontinuation of 

the SNO. Further, Graham admits that he did not give eye exams at the prison, and thus it 

is not clear why he would have been making decisions relating to Plaintiff’s eye conditions. 

Moreover, Graham’s testimony that there are only certain conditions that would necessitate

sunglasses in prison is directly contradicted by the fact that the optometrist who worked in 

the prison gave Plaintiff a SNO for sunglasses after examining Plaintiff’s eyes, suggesting 

3 Plaintiff saw Defendant Graham on one occasion on March 21, 2016, for 

conditions unrelated to Plaintiff’s eyes. (Doc. 75 at 11-17.) Indeed, Defendant Graham 

admits that he would not have examined Plaintiff’s eyes because he was acting as a general 

medicine doctor and did not give eye exams. (Doc. 75 at 4 ¶ 15.)
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that the specialist in the area of eyes was unaware that there was a requirement that Plaintiff 

needed to have certain pre-existing conditions in order to qualify for sunglasses. Moreover, 

Plaintiff provided testimony that when he did not have sunglasses for his photosensitivity, 

he experienced headache, dizziness, and vomiting. 

Accordingly, there are disputed issues of material fact as to Graham’s reasons for 

discontinuing Plaintiff’s sunglasses without prior examination of Plaintiff, and despite the 

fact that Graham did not treat eyes and that medical providers who actually examined 

Plaintiff gave him SNOs for sunglasses before and after Graham had discontinued the 

SNO. As such, a reasonable jury could conclude that Graham was deliberately indifferent 

to Plaintiff’s serious medical needs and the Motion for Summary Judgment will be denied 

as to Defendant Graham. 

B. Defendant Harris

Plaintiff asserts that Defendant Harris was deliberately indifferent to Plaintiff’s

serious medical needs when Harris confiscated Plaintiff’s sunglasses. Defendant Harris 

argues that he is entitled to summary judgment because he did not deny Plaintiff access to 

medical treatment, but relied on Graham’s discontinuation of Plaintiff’s SNO when he 

confiscated and did not return Plaintiff’s sunglasses. Harris asserts that because Plaintiff 

was not permitted to have sunglasses while in maximum custody without a SNO, he was 

required to confiscate the sunglasses pursuant to ADC policy. In response, Plaintiff asserts

that Defendant Harris confiscated Plaintiff’s sunglasses prior to Graham’s discontinuation 

of Plaintiff’s SNO. 

There is no evidence that Harris confiscated Plaintiff’s sunglasses prior to 

consulting with Graham as to whether Plaintiff had a valid SNO for sunglasses. Harris 

testifies that he did speak with Graham at some point to confirm that Plaintiff did not have 

a valid SNO for sunglasses, and Plaintiff has produced no evidence to dispute this 

statement. Even if Harris had confiscated the sunglasses until he could check to see if 

Plaintiff had a valid SNO, given the concerns about sunglasses in maximum custody, it 

would not have been unreasonable for Harris to confiscate the sunglasses for a short time 
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while he checked with medical to see if Plaintiff had a medical reason to possess the 

sunglasses. Defendant Harris is not a medical provider, did not have the skills necessary 

to examine Plaintiff’s eyes, and did not have the authority to issue Plaintiff a SNO for 

sunglasses or overrule Graham’s decision with regard to the SNO. Because Harris relied

on Graham’s revocation of Plaintiff’s SNO, he was not deliberately indifferent to a serious 

risk to Plaintiff’s health when he confiscated Plaintiff’s sunglasses. See Peralta v. Dillard, 

744 F.3d 1076, 1086-87 (9th Cir. 2014) (defendant not aware of risk of harm where he was 

not a dentist, he did not independently review medical chart before signing off on appeal 

and had no expertise to contribute to a review, and he relied on dental staff who investigated 

the plaintiff’s complaints). 

Accordingly, Defendant Harris’s Motion for Summary Judgment will be granted 

and Harris will be dismissed from this action. 

C. Defendant Corizon

In its Motion for Summary Judgment, Defendant Corizon argues that there is no 

evidence that it promulgated or supported a custom or practice that deprived Plaintiff of 

his civil rights. (Doc.74 at 13.) In Response, Plaintiff asserts that Defendant Corizon’s 

delivery of healthcare is systemically deficient and that Corizon failed to properly train 

Graham.

To prevail on a claim against Corizon, as a private entity serving a traditional public 

function, Plaintiff must meet the test articulated in Monell v. Department of Social Services 

of City of New York, 436 U.S. 658, 690-94 (1978). Tsao v. Desert Palace, Inc., 698 F.3d 

1128, 1139 (9th Cir. 2012) (applying Monell to private entities acting under color of state 

law). Corizon cannot be liable under a theory of respondeat superior for the alleged 

unconstitutional acts of its officers under 42 U.S.C. § 1983. See Monell, 436 U.S. at 691. 

Thus, Corizon may not be sued solely because an injury was inflicted by its employees or 

agents. Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). To make this 

showing, Plaintiff must demonstrate that (1) he was deprived of a constitutional right; 

(2) Corizon had a policy or custom; (3) the policy or custom amounted to deliberate 
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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). Further, if the policy or custom in 

question is an unwritten one, the plaintiff must show that it is so “persistent and 

widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. 

at 691 (internal quotation and citation omitted). “Liability for improper 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).

The failure to provide proper training may represent a policy for which Corizon is 

responsible if the need for more or different training is so obvious, and the inadequacy so 

likely to result in the violation of constitutional rights, that the policymakers can reasonably 

be said to have been deliberately indifferent to the need. City of Canton v. Harris, 489 

U.S. 378, 390 (1989). Here, there is no evidence to support that Graham was acting 

pursuant to a policy, custom, or practice of Defendant Corizon. Likewise, although 

Plaintiff argues that Graham was unqualified, he produces no evidence that the need for 

more or different training of Graham was so obvious that it was likely to result in a violation 

of Plaintiff’s constitutional rights. Indeed, the evidence shows that the other medical 

providers employed by Corizon who examined Plaintiff’s eyes were responsive, and 

ordered him SNOs. There is no evidence that Graham’s actions in this action could amount 

to a policy of deliberate indifference to Plaintiff’s constitutional rights. 

Accordingly, the Motion for Summary Judgment will be granted as to Corizon, and 

it will be dismissed from this action. 

IT IS ORDERED:

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

Nathaniel Harris’s Motion for Summary Judgment (Doc. 72) and Defendants Corizon 

Health, Inc. and Stephen Graham’s Motion for Summary Judgment (Doc. 74). 
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(2) Defendant Harris’s Motion for Summary Judgment (Doc. 72) is granted. 

Defendant Harris and Count One are dismissed from this action. 

(3) Defendants Corizon and Graham’s Motion for Summary Judgment (Doc. 74)

is granted in part and denied in part as follows:

a) the motion is granted as to Defendant Corizon and Count Four. 

Defendant Corizon and Count Four are dismissed from this action.

b) the motion is denied as to Defendant Graham and Count Two.

(4) The remaining claim in this action is Plaintiff’s Eighth Amendment claim for 

deliberate indifference to serious medical needs against Defendant Graham in Count Two.

(5) This action is referred to Magistrate Judge Burns to conduct a settlement 

conference.

(6) Defense Counsel shall arrange for the relevant Parties to jointly call 

Magistrate Judge Burns’ chambers at (602) 322-7610 within 14 days to schedule a date for 

the settlement conference.

Dated this 17th day of March, 2020.