The opinion of the court was delivered by: Illston, District Judge.
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE
On August 17, 2000, this Court heard argument on defendants'
motion for judgment on the pleadings. Having carefully
considered the arguments of the parties and the papers
submitted, the Court hereby DENIES defendants' motion for the
reasons set out below.
Silvester Gomez, until recently an inmate at Pelican Bay State
Prison ("PBSP"), filed this civil rights action under
42 U.S.C. § 1983, claiming that defendants were deliberately indifferent
to his need for medical care. In his complaint, Gomez alleges
that on October 10, 1995, he had an appointment to see Dr. Gard,
a physician at PBSP. Plaintiff complained of sinus problems and
longstanding headaches. Dr. Gard ordered, among other things, a
blood test. Although Gomez tested positive for both hepatitis
"A" and "C" antibodies in that blood test, he claims that he was
not immediately informed of the results. Gomez saw several
medical care providers over the next couple of years for various
problems, including pain in his lower abdomen, but was not told
that he had hepatitis C until October 1997. On September 30,
1997, Dr. Sands ordered blood tests for plaintiff. On October
28, 1997, Dr. Kushner saw Gomez and discussed the test results
with him. For the first time, Dr. Kushner explained to Gomez
that he had hepatitis C. Dr. Kushner discussed the possibility
that Gomez might need a liver biopsy to obtain further
information about his condition.
A liver biopsy was performed on March 3, 1998. On May 21,
1998, after the biopsy results were reviewed, a PBSP physician
told Gomez that he was eligible for interferon, a treatment for
hepatitis C. Gomez did not, however, begin interferon treatments
until December 9, 1998. At least part of the delay was due to an
informational impasse. Gomez wanted to know about the side
effects of interferon
(e.g., how it would affect his other medical conditions and
medications), but was not receiving what he considered
satisfactory information, so he would not sign the consent
forms. Without a signed consent from Gomez, the staff would not
begin interferon treatments. Once Gomez received what he
considered satisfactory information addressing his concerns, he
consented to the interferon treatments. The medical staff then
provided the treatments.
Of particular relevance to this motion are the steps Gomez
took to obtain relief under the administrative remedies provided
by the California Department of Corrections. See Cal.Code Reg.
tit. 15, § 3084.1. The State of California provides its inmates
and parolees the right to appeal administratively "any
departmental decision, action, condition, or policy which they
can demonstrate as having an adverse effect upon their welfare."
See id. at § 3084.1(a). Under the California grievance system,
inmates may obtain prospective relief, but not monetary damages.
See Rumbles v. Hill, 182 F.3d 1064, 1068 (9th Cir. 1999). The
system consists of several levels of appeal: (1) informal
resolution, (2) formal written appeal on a CDC 602 inmate appeal
form, (3) second level appeal to the institution head or
designee, and (4) third level appeal to the Director of the
California Department of Corrections. See Cal.Code Reg. Tit.
15, § 3084.5.
On July 2, 1998, Gomez filed an initial grievance based on his
concern about the medical services being provided to him. See
Compl., Ex. 1-A ("Inmate Appeal Form"). On the first line of
that appeal form, Gomez wrote: "Inadequate medical attention to
a serious medical need." The grievance proceeded to explain that
he had been diagnosed with hepatitis C and that, while he had
been told that he was eligible for alfa interferon treatment, he
had yet to receive treatment and had sent "numerous requests to
the medical staff to no avail." Id. Under the section of the
form titled "action requested," Gomez wrote: "That I be given
the necessary treatment for my serious medical need." Id. The
informal review occurred on August 21, 1998. Gomez had concerns
about how the hepatitis treatment he had been promised would
affect his other medical conditions, which included a thyroid
condition, a stomach infection, and liver damage. See Compl.
at 14. He had raised these concerns with the physician who told
him that he was eligible for interferon treatment and was told
that a nurse would provide the answers he was seeking. See id.
Gomez filed several requests to speak with medical personnel
over the following weeks as it became clear that the desired
information was not forthcoming. See id. at 15-16. It appears
that Gomez explained his concerns about treatment to Nurse
Alpaugh when she met with him as part of the informal review of
his grievance procedure. See Inmate Appeal Form. Nurse Alpaugh
agreed to find out the answers to his questions and concerns and
return the next week. See id., Compl. at 17.
When Nurse Alpaugh failed to provide Gomez with the requested
information, he filed a formal level complaint in an effort to
get answers to his questions. Specifically, he requested a
medical review to help him "to reach an informed decision since
my concerns and questions are being ignored." Inmate Appeal
Form. At this point, the prison waived the first level of formal
review in order to expedite the process. During the time prior
to second level review, two things happened that allayed Gomez's
concerns about the promised interferon treatments. First, a PBSP
physician ordered x-rays of Gomez's stomach to determine whether
his stomach was in need of treatment and, if so, whether
interferon treatment would have to be delayed as a result. See
Compl. at 21.
Second, Nurse Alpaugh told Gomez that she had learned that
interferon treatment would not worsen his existing thyroid
problems. See id. On November 5, 1998, Gomez was interviewed
by a Medical Technical Assistant as part of the second level of
administrative review. See Compl., Ex. 37-A ("Second Level
Response"). During that interview, Gomez explained that most of
his concerns had been addressed and that he was waiting for the
results of the stomach x-rays before consenting to interferon
treatment. See id. The Department of Corrections form
describing the second level response said: "You are being
referred to Dr. Thor and your clinic physician to consider
starting interferon." Id. In addition, Gomez was scheduled for
the next available appointment for x-rays.*fn1 Soon after
this grievance was decided, Gomez received satisfactory x-ray
results, signed the consent form, and began to receive treatment
for hepatitis. Compl. at 21-23.
Gomez filed his first complaint in this case on May 18, 1999.
On August 3, 1999, this Court dismissed the complaint with leave
to amend. On September 13, 1999, Gomez filed an amended
complaint. In the amended complaint, Gomez asserted an Eighth
Amendment claim of deliberate indifference to his serious
medical needs. He asserted as a basis for his claim the fact
that, while he had tested positive for hepatitis A and C
antibodies in 1995, medical personnel had failed to inform him
of the results. In addition, he alleged that another year
elapsed between the time that he learned of his diagnosis and
the time treatment was first made available to him. Also
included in the body of his complaint were allegations that
medical staff failed to adequately respond to his questions
about his medical conditions. Gomez named eight individual
members of the medical staff in the amended complaint. On August
2, 2000, this Court issued an order granting in part and denying
in part a motion for summary judgment by the defendants.
Under Federal Rule of Civil Procedure 12(c), "[a]fter the
pleadings are closed but within such time as to not delay the
trial, any party may move for judgment on the pleadings." Under
Rule 12(b)(6), a party may move to dismiss a complaint, and the
district court must dismiss it if it fails to state a claim upon
which relief can be granted. A motion for judgment on the
pleadings and a motion to dismiss are substantially identical.
See William W. Schwarzer, A. Wallace Tashima & James M.
Wagstaffe, Federal Civil Procedure Before Trial § 9:319 (1997).
Under either provision, the question presented is not whether
the plaintiff will prevail in the action, but whether the
plaintiff is entitled
to offer evidence in support of the claim. See Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
In answering this question, the Court must assume that the
plaintiffs allegations are true and must draw all reasonable
inferences in the plaintiffs favor. See Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Generally, a court
may consider only allegations made in the complaint; extrinsic
factual material may not be taken into account. See Powe v.
Chicago, 664 F.2d 639, 642 (7th Cir. 1981). However, materials
properly attached to a complaint as exhibits may be considered.
See Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc.,
583 F.2d 426, 429 & n. 2 (9th Cir. 1978); Durning v. First Boston
Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied,
484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987) ("[Attached]
documents are part of the complaint and may be considered in
determining whether the plaintiff can prove any set of facts in
support of the claim.").*fn2
If the complaint fails to articulate a legally sufficient
claim, the complaint should be dismissed, or judgment granted on
the pleadings, and the Court must then decide whether to grant
leave to amend. Leave to amend need not be granted when
amendment would be futile and the deficiencies of the complaint
could not be cured by amendment. See Reddy v. Litton Indus.,
912 F.2d 291, 296 (9th Cir. 1990); Noll v. Carlson,
809 F.2d 1446, 1448 (9th Cir. 1987).
This Court recognizes that defendants' motion for judgment on
the pleadings comes later than might otherwise be expected. The
amended complaint was filed approximately two years ago, this
Court has already ruled on defendants' motion for summary
judgment, and the parties are well into discovery. However, the
Supreme Court recently handed down a decision that clarified the
Prison Litigation Reform Act ("PLRA") exhaustion requirement.
See Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1823, 149
L.Ed.2d 958 (2001). It is appropriate to determine at this