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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Oscar Nester, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants.

No. CV 15-01700-PHX-SMM (DMF)

REPORT AND 

RECOMMENDATION 

TO THE HONORABLE STEPHEN M. McNAMEE: 

 Before the Court is Plaintiff’s Motion for Extension of Time to Prepare His 

Motion for Leave to File a First Amended Complaint (Doc. 10); and Plaintiff’s Motion 

for Leave of the Court to File a First Amended Complaint (Doc. 11). This matter is 

before the undersigned on referral from the District Judge. The Court has a continuing 

obligation to screen complaints brought by prisoners seeking relief against an officer or 

employee of a governmental entity. See 28 U.S.C. § 1915A(a). The screening 

requirement extends to proposed amended complaints. Because a magistrate judge 

cannot decide a “matter dispositive of a claim or defense or a prisoner petition 

challenging the conditions of confinement,” Rule 72(b)(1), Federal Rules of Civil 

Procedure, the undersigned recommends as follows. 

I. Background

 Plaintiff Oscar Nester filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 

1983. On October 27, 2015, the Court granted Plaintiff’s Application to Proceed In 

Forma Pauperis and ordered Defendants Ryan and Corizon to respond to Plaintiff’s twoCase 2:15-cv-01700-SMM-DMF Document 15 Filed 01/22/16 Page 1 of 6
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count Complaint. (Doc. 8.) On November 19, 2015, Plaintiff filed a motion for an 

extension of time to file a motion for leave to file an amended complaint. (Doc. 10.) On 

November 25, 2015, Plaintiff filed his motion for leave to file his First Amended 

Complaint, which is attached to the motion (“FAC”). (Doc. 11.) 

II. Statutory Screening of Prisoner Complaints: 

 The Court is required to screen complaints brought by prisoners seeking relief 

against a governmental entity or an officer or an employee of a governmental entity. 28 

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 

has raised claims that are legally frivolous or malicious, that fail to state a claim upon 

which relief may be granted, or that seek monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 

 A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 

does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. 

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 

claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 

on its judicial experience and common sense.” Id. at 679. Although a plaintiff’s specific 

factual allegations may be consistent with a constitutional claim, a court must assess 

whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 

 The United States Court of Appeals for the Ninth Circuit has instructed that courts 

“continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 

Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 

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standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 

551 U.S. 89, 94 (2007) (per curiam)). Although pro se pleadings are liberally construed, 

Haines v. Kerner, 404 U.S. 519, 520–21 (1972), conclusory and vague allegations will 

not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 

268 (9th Cir. 1982). In such circumstances, even a liberal interpretation of a civil rights 

complaint may not supply essential elements of the claim that were not initially pled. Id. 

III. First Amended Complaint

 Plaintiff’s five-count FAC names the following Defendants: Charles L. Ryan; 

Corizon Health, Inc.; Wexford Health Sources, Inc.; Dr. Arlene McKamey; Dr. Michael 

Hegmann; Dr. Mulhen; Kerry Byrd; and Assistant FHA Howley. Plaintiff seeks 

injunctive, compensatory, and punitive relief. Because Plaintiff filed his motion for leave 

to amend before a responsive pleading was filed and as a matter of course under Fed. R. 

Civ. P. 15(a)(1)(B), the Court recommends that Plaintiff’s motion for extension of time 

(Doc. 10) be denied as unnecessary. 

A. Claims From Original Complaint 

 Plaintiff’s FAC contains Counts I and II from his original complaint. The Court 

previously screened those counts and ordered Defendants Ryan and Corizon to answer 

those counts. (Doc. 8.) The Court recommends that these same Defendants be required 

to respond to these same claims in Plaintiff’s FAC. 

The Court previously held that Plaintiff sufficiently alleged a claim for denial of 

constitutionally adequate medical care, noting that Plaintiff alleges in these counts that: 

Ryan adopted or implemented customs and policies that result in inmates 

with Hepatitis C (HCV), like Plaintiff, to be subjected to stage III or IV 

liver disease before their HCV will be substantively treated. That is, 

Plaintiff asserts that ADC’s customs and policies, set by Ryan, require an 

inmate to suffer irreparable harm to his liver before the third party health 

care provider, Corizon, will treat HCV, even though there are medications 

available that can cure the disease. Plaintiff also alleges that Corizon 

through its customs and policies subjects prisoners, including him, to 

serious and irreparable harm by failing to treat his HCV. Plaintiff states 

that his HCV diagnosis is well-documented in prison medical records and 

that he has repeatedly, and unsuccessfully, sought treatment for his HCV 

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from Ryan and Corizon. He generally alleges that he is suffering pain and 

other symptoms as a result of his HCV and the failure of Corizon to treat 

his HCV under policies and customs set by Ryan. He contends that both 

have acted with deliberate indifference to his serious medical needs. 

(Doc. 8 at 3.) 

B. Newly Asserted Claims

Plaintiff adds Counts III, IV and V in his FAC. In Count III, Plaintiff alleges that 

at several medical appointments, Dr. Arlene McKamey informed Plaintiff that he was a 

candidate for HCV treatment due to high levels of enzymes and viral load. Later, Dr. 

McKamey recanted due to the policies alleged in Counts I and II, and stated that she had 

made a mistake in evaluating Plaintiff and that no one gets treatment unless their liver is 

failing. In Count IV, Plaintiff alleges that after numerous appointments, Dr. Hegmann 

refused to provide Plaintiff with medically necessary treatment due to the policies 

requiring Plaintiff’s disease to progress to stage III or IV liver disease before offering 

treatment. The Court recommends that Defendant McKamey be ordered to respond to 

Count III, and Dr. Hegmann be required to respond to Count IV of the FAC. 

In Count V, Plaintiff alleges that Dr. McKamey, Dr. Mulhen, Kerry Byrd, Dr. 

Hegmann, Asst. FHA Howley, Corizon Health, Inc., Wexford Health Sources, Inc., and 

Charles Ryan were deliberately indifferent to Plaintiff’s serious health care needs “by 

operating and utilizing unconstitutional policies and customs which have not 

implemented the modern community standards of care for the treatment of Hepatitis C.” 

(Doc. 11–1 at 20.) Plaintiff further alleges that Defendant McKamey only treated 

secondary illnesses causes by HCV, but refused to treat the HCV because Plaintiff’s 

disease had not progressed to stage III or IV liver disease. Plaintiff also alleges that Dr. 

Mulhen found Plaintiff was a good candidate for treatment, but refused treatment because 

Plaintiff’s condition was not sufficiently terminal enough to be given the treatment to 

cure the disease. Plaintiff alleges that Kerry Byrd likewise denied Plaintiff treatment due 

to the cost and Corizon’s policy. The Court recommends that Defendants McKamey, 

Hegmann, Ryan and Corizon not be required to respond to Count V, as this count is 

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duplicative of the previous counts these defendants are answering. Plaintiff has not 

alleged actions by Defendants Howley or Wexford Health Sources, Inc., and therefore the 

Court recommends that these defendants be dismissed. The Court recommends that 

Defendants Mulhen and Byrd be required to respond to Count V of the FAC. 

IV. Claims for Which an Answer Will be Required

 The Court recommends that Defendants Ryan and Corizon answer Counts I and II 

of the FAC; that Defendant McKamey answer Count III of the FAC; that Defendant 

Hegmann answer Count IV of the FAC; and that Defendants Mulhen and Byrd answer 

Count V of the FAC. The Court recommends that the remaining defendants be 

dismissed. 

IT IS RECOMMENDED that Plaintiff’s Motion for Extension of Time to 

Prepare his Motion for Leave to File a First Amended Complaint as a Matter of Course 

(Doc. 10) be denied as unnecessary. 

IT IS FURTHER RECOMMENDED that Plaintiff’s Motion for Leave to 

Amend (Doc. 11) be granted, and that Plaintiff’s be allowed to file his FAC (Doc. 11–1). 

IT IS FURTHER RECOMMENDED that the Court order the Defendants 

named in Section IV herein to answer or otherwise respond to the claims set forth in that 

section, by appropriate motion within the time provided by the applicable provisions of 

Fed. R. Civ. P. 12(a). 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the District Court’s judgment. 

 Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 

fourteen (14) days from the date of service of a copy of this recommendation within 

which to file specific written objections with the Court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, 

Local Rules of Civil Procedure for the United States District Court for the District of 

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Arizona, objections to the Report and Recommendation may not exceed seventeen (17) 

pages in length. 

 Failure to timely file objections to any factual or legal determinations of the 

Magistrate Judge will be considered a waiver of a party’s right to de novo appellate 

consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 

Cir. 2003) (en banc). Failure to timely file objections to any factual or legal 

determinations of the Magistrate Judge will constitute a waiver of a party’s right to 

appellate review of the findings of fact and conclusions of law in an order or judgment 

entered pursuant to the recommendations of the Magistrate Judge. 

 Dated this 21st day of January, 2016. 

Honorable Deborah M. Fine

United States Magistrate Judge

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