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KAB(CJC)

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Christopher Montoya,

Plaintiff, 

v. 

State of Arizona, et al.,

Defendants.

No. CV 18-08025-PCT-DGC (ESW)

ORDER

Plaintiff Christopher Montoya, who is currently confined in the Arizona State Prison

(ASP)-Kingman, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendant 

moves for summary judgment. (Doc. 28.) 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) (Doc. 30), and he opposes the Motion. (Doc. 38.) Additionally, Plaintiff filed a 

Motion to Suppress Defendant’s Material Evidence. (Doc. 43.) 

I. Background

Plaintiff filed a three-count First Amended Complaint against three Defendants 

regarding the medical care he received for a skin condition. (Doc. 9.) On screening under 

28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment

claim based on deliberate indifference to serious medical needs in Count Three against 

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

(Id.)

. . . .
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II. Plaintiff’s Motion to Suppress Defendant’s Material Evidence

Plaintiff asserts that Defendant committed theft of Plaintiff’s medical records 

without obtaining consent from Plaintiff. (Doc. 43.) As relief, Plaintiff requests that the 

Court suppress his medical records. (Id.) In response, Defendant asserts that she has never 

been in possession of Plaintiff’s medical records, but that her counsel obtained them 

directly from Defendant’s employer, Correct Care Solutions (CCS). (Doc. 44.) Defendant 

argues that Plaintiff waived any physician/patient privilege and there is no private right of 

action under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)

even though Plaintiff’s protected health information was disclosed without the required 

waiver to release such information. (Id.) 

Although Plaintiff put his medical information at issue in this lawsuit, he does not 

automatically waive his privacy interest in his protected health information or any required 

waiver to release of that information. See, e.g., 45 C.F.R. § 164.512(e)(1); Evans v. Tilton, 

No. 1:07-CV-01814, 2010 WL 3745648, at *3 (E.D. Cal. Sept. 16, 2010) (finding “blatant 

noncompliance” with HIPAA where prison disclosed the plaintiff’s medical records 

without a waiver even though they were directly at issue in the lawsuit).1 HIPAA 

provisions provide for disclosure of medical information in the course of a judicial 

proceeding, but certain requirements are placed on the provider and the party seeking the 

information. See 45 C.F.R. § 164.512(e)(1). HIPAA does not address how to treat a

violation that occurs during discovery or trial. See Crenshaw v. MONY Life Ins. Co., 318 

F. Supp. 2d 1015, 1030 (S.D. Cal. 2004). 

Courts have held that the exclusive remedy available for HIPAA violations is 

through the United States Department of Health and Human Services. See Demoruelle v. 

United States, No. 15-00208 LEK-KSC, 2015 WL 6478610, at *4 n.4 (D. Hawai’i Oct. 26, 

2015) (citing Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006)). The statute limits 

enforcement of HIPAA to the Secretary of Health and Human Services. See 42 U.S.C. 

 

1

If Plaintiff had refused to sign a waiver after putting his medical records at issue 

in this lawsuit, Defendant could have sought relief from the Court.
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§§ 1320d-5 and d-6. Therefore, the Court cannot provide Plaintiff the relief he seeks and 

his Motion to Suppress will be denied. 

III. Defendant’s Motion for Summary Judgment

Defendant Herrick moves for summary judgment on the basis that she was not 

deliberately indifferent to Plaintiff’s serious medical needs.

A. 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 
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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). 

B. Facts

Plaintiff Christopher Montoya is an inmate at the Huachuca Unit of ASP- Kingman. 

(Doc. 29 ¶ 1; Doc. 39 at 1.) Defendant Herrick served as a Nurse Practitioner and provided 

Plaintiff with medical treatment at ASP-Kingman.

2

 (Doc. 29 ¶ 2.) On February 16, 2017,

Dr. Donovan Schmidt referred Plaintiff to Arizona Desert Dermatology regarding a rash 

that was “[n]ot responding to treatment.” (Doc. 29-1 at 7.) On March 15, 2017,3 Plaintiff 

was examined by a third-party dermatologist who noted either Tinea Nigra or PostInflammatory Hyperpigmentation on Plaintiff’s left forearm. (Doc. 29 ¶ 4-5; Doc. 39 at 

5.) The doctor performed a 4.0mm punch biopsy on Plaintiff’s forearm to determine the 

cause of the observed skin condition. (Doc. 29 ¶ 5-6; Doc. 39 at 5.) 

The biopsy results indicated that Plaintiff’s skin condition was Post-Inflammatory 

Hyperpigmentation. (Doc. 29 ¶ 7.; Doc. 39 at 5.) On March 21, 2017, Defendant reviewed 

the biopsy results and scheduled an appointment to discuss the results with Plaintiff. 

(Doc. 29 ¶ 8; Doc. 39 at 5.) Defendant met with Plaintiff on May 3, 2017 to inform him 

that his biopsy results indicated he had Post-Inflammatory Hyperpigmentation that was 

“not going to resolve.” (Doc. 29 ¶ 9; Doc. 39 at 5.) During that visit, Plaintiff reported 

that Diflucan (Fluconazole) had worked to alleviate his symptoms in the past and 

Defendant wrote him a prescription. (Doc. 29-1 at 19.)

On June 1, Plaintiff submitted a Health Needs Request (“HNR”) stating “I’ve been 

putting theses H.N.Rs in since I’ve been here over, and over. About weird looking rash[e]s 

everywhere. NOW I need to be seen about what’s on my ‘penis . . . .’” (Doc. 29-1 at 21.) 

 

2 Although Plaintiff suggests that Defendant may not be a Nurse Practitioner 

(Doc. 39 at 2), he has not produced any evidence to dispute Herrick’s sworn testimony that 

she is a Nurse Practitioner. 

3 An amendment to this medical record indicates this appointment actually occurred 

on March 14 rather than March 15. (Doc. 29-1 at 13.) 
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Plaintiff asserts that he submitted two HNR forms on May 13 and May 28 requesting an 

additional prescription of Fluconazole, an allergy panel, and clothing to protect him from 

sun exposure. (Doc. 39 at 5.) Plaintiff admits Defendant prescribed him the Fluconazole,

but contends she failed to authorize the protective clothing. (Id.) 

On July 7, 2017, Plaintiff was seen by a different Nurse Practitioner. (Doc. 29 ¶ 11; 

Doc. 39 at 6.) This practitioner noted a rash could not be seen on Defendant’s penis upon

examination, but a rash was observed on Defendant’s shoulder. (Doc. 29-1 at 19.) The 

provider prescribed Defendant Hydrocortisone cream and Zyrtec (Cetirizine). (Id.)

On September 14, 2017, Plaintiff saw Defendant for complaints about a rash on his 

penis, but Defendant did not observe a rash on Plaintiff’s penis during the exam. (Doc. 29 

¶ 12; Doc. 29-1 at 25; Doc. 39 at 7.) Defendant did, however, note that Plaintiff had “areas 

of Hyperpigmentation consistent with Derm DX (diagnosis)” and wrote him a prescription 

for Cetirizine. (Doc. 29 ¶ 13; Doc. 29-1 at 25; Doc. 39 at 7.) In an effort to rule out other 

causes of Plaintiff’s skin condition, Defendant ordered a basic food allergy panel. (Doc. 29 

¶ 14; Doc. 39 at 7.) On October 27, 2017, Defendant met with Plaintiff and documented 

that Plaintiff’s basic food allergy panel came back negative.

4

(Doc. 29 ¶ 15; Doc 29-1 at

29.) In response to Plaintiff’s ongoing symptoms, Defendant prescribed Fluconazole and 

Eucerin Cream during the same visit. (Doc. 29-1 at 29.) Defendant last met with Plaintiff 

on November 30 and again informed him that his condition was not a rash, but rather PostInflammatory Hyperpigmentation. (Doc. 29 ¶ 16; Doc. 39 at 7.) During that visit, 

Defendant wrote Plaintiff a prescription for Fluconazole. (Doc. 29-1 at 31.)

C. 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. 

 

4 Plaintiff disputes this result, claiming that there were no medical lab test results in 

his medical file, but does not present any evidence to controvert the results. (Doc. 39 at 7.)
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First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 (citations 

omitted). 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. Deliberate indifference is a higher standard than negligence or lack 

of ordinary due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither 

negligence nor gross negligence will constitute deliberate indifference.” Clement v. 

California Dep’t of Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also

Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of 

“indifference,” “negligence,” or “medical malpractice” do not support a claim under § 

1983). “A difference of opinion does not amount to deliberate indifference to [a plaintiff’s] 

serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The 

indifference must be substantial. The action must rise to a level of “unnecessary and 

wanton infliction of pain.” Estelle, 429 U.S. at 105.

It is undisputed that Defendant saw Plaintiff on four separate occasions over a sixmonth timeframe. Defendant told Plaintiff multiple times that he had PIH, a skin condition 

with no effective treatment. Despite the lack of treatment options for PIH, Defendant wrote 

Plaintiff various prescriptions in an effort to mitigate Plaintiff’s symptoms. When Plaintiff 

told Defendant that a particular medication helped in the past, Defendant prescribed it. As

Plaintiff continued to file HNR’s for the same symptoms, Defendant altered the

prescriptions in an attempt to alleviate Plaintiff’s discomfort. Defendant ordered a basic 
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food allergy panel in an attempt to rule out other causes of Plaintiff’s symptoms. The mere 

fact that the treatments were allegedly ineffective does not establish that Defendant was 

deliberately indifferent to Plaintiff’s serious medical needs. Plaintiff’s disagreement about 

which treatment he should receive does not give rise to an Eighth Amendment violation. 

See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (inmate’s disagreement with 

physician regarding his treatment does not amount to deliberate indifference).

Regarding Plaintiff’s complaints about the rash on his penis, the first medical 

documentation of this was in an HNR that Plaintiff submitted on June 1. Plaintiff was 

examined on two separate occasions within approximately three months of submitting this 

HNR, once by Defendant and once by a third-party Nurse Practitioner. In both instances, 

the medical professionals noted that they did not see a rash on Plaintiff’s penis. During 

those exams, neither Nurse Practitioner documented any symptoms that indicated Plaintiff

might have a sexually transmitted disease. There is also no documentation that Plaintiff

was having pain when he urinated and he doe not allege he ever told Defendant about this 

symptom. There is no evidence that Defendant witnessed any symptoms that would lead 

her to conclude she needed to refer Plaintiff to a urologist or speak with him about sexually 

transmitted diseases or scabies. While knowledge can be inferred from the surrounding 

facts, there is no evidence to support the proposition that Defendant knew or should have 

known to pursue the treatments Plaintiff listed, or that such treatments were medically 

necessary.

Plaintiff also asserts that Defendant violated his Eighth Amendment rights for two 

additional reasons, but provides no support for them. First, Plaintiff claims that he is 

entitled to “chronic care patient visits” and has not been seen since November 30. Plaintiff 

has failed to establish that his condition was the type that warranted special chronic care 

treatment. Plaintiff has also failed to allege that Defendant personally prevented him from 

receiving such treatment. Second, Plaintiff alleges that Defendant violated his Eighth 

Amendment rights by failing to schedule a follow-up consultation with him after learning 

he was mistakenly given another inmate’s medication in lieu of his own. At most, this 
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would be an act of negligence. Even if Defendant was responsible for the mistake and even 

if she should have scheduled a follow-up appointment, it does not rise to the level of an 

Eighth Amendment violation.

Because there is no evidence that Defendant was deliberately indifferent to 

Plaintiff’s serious medical needs, Defendant’s Motion for Summary Judgment will be 

granted.

IT IS ORDERED:

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

Motion for Summary Judgment (Doc. 28) and Plaintiff’s Motion to Suppress (Doc. 43).

(2) Plaintiff’s Motion to Suppress Defendant’s Material Evidence (Doc. 43) is 

denied. 

(3) Defendant’s Motion for Summary Judgment (Doc. 28) is granted, and the 

action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.

Dated this 4th day of October, 2019.