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August 28, 2001


The opinion of the court was delivered by: Illston, District Judge.


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 juncture ...

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