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September 9, 2002


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


Defendant California Department of Corrections (CDC) and the named Defendant employees of the CDC (Individual Defendants) move for summary judgment on Plaintiff Frank Clement's section 1983 claims for damages and injunctive relief. Plaintiff opposes the motion and moves for preliminary injunctive relief with respect to one of his claims. Defendants oppose Plaintiff's request for a preliminary injunction. The matter was heard on August 9, 2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court grants in part and denies in part Defendants' motion for summary judgment (Docket # 31), denies Plaintiff's request for a preliminary injunction (Docket # 53), and grants partial summary judgment to Plaintiff.


At all times relevant to this motion, Plaintiff was a prisoner at Pelican Bay State Prison (Pelican Bay).

A. Delay in Diagnosis and Treatment for Colon Cancer

On April 8, 1999, Plaintiff advised a nurse that he had been experiencing intermittent episodes of diarrhea, with blood and mucus in watery, loose stool. She arranged for him to see a doctor the next day. Declaration of Dwight Winslow (Winslow Dec.), Ex. A. Plaintiff was examined by a doctor at Pelican Bay on April 9, 1999. The doctor ordered a barium enema and ordered that a stool sample be tested. The doctor advised Plaintiff to return in two weeks for follow up. Md., Ex. B. Plaintiff returned to Pelican Bay clinic on April 12 complaining that his symptoms had worsened. He was taken to Sutter Coast Hospital that day. Id., Ex. C. At Sutter Coast Hospital, Plaintiff's abdomen was x-rayed and he was evaluated by Dr. Picone. Dr. Picone recommended that Plaintiff be put on a bland diet and be scheduled for a colonoscopy.*fn1 Id., Ex. D-E.

The results of the barium enema became available on April 13, 1999. They showed the presence of one small polyp, two small polypoid lesions, and several small scattered diverticula in the sigmoid colon. Id., Ex. F. On April 25, Pelican Bay medical administrative review staff approved the colonoscopy as well as an esophagogastroduodenoscopy (EGD).*fn2

Plaintiff saw Dr. White at the Pelican Bay Clinic on May 11, 1999 and on May 26, 1999. Dr. White noted that Plaintiff had lost fourteen pounds in the two weeks between visits. Declaration of Frank Clement (Clement Dec.), Exs. 8-9. On May 21, 1999, Plaintiff saw Dr. Picone at Sutter Coast Hospital. Dr. Picone again recommended a colonoscopy. Id., Ex. H. On June 9, 1999, Plaintiff saw Dr. White at the Pelican Bay clinic. Dr. White's notes from that visit indicate that she contacted Dr. Picone's office and was told that Plaintiff's colonoscopy appointment was "pending." Id., Ex. N. On June 22, 1999, Plaintiff returned to the Pelican Bay clinic and again saw Dr. White. Dr. White's notes from that meeting indicate that she again contacted Dr. Picone's office and was told that Plaintiff's surgery would be scheduled. Id., Ex. P. On June 24, 1999, Dr. Picone issued an addendum to his April 12, 1999 patient note. The addendum indicates that Plaintiff had been scheduled for a colonoscopy (though it does not say when), but that a "physical problem at the hospital prevent[ed] surgery on that day." Id., Ex. Q.

On July 16, 1999, Plaintiff was taken to Sutter Coast Hospital to have the colonoscopy and the EGD performed. Only the EGD was performed on that day. Id., Ex. R. The parties dispute why the colonoscopy was not performed on July 16. Plaintiff contends that Defendants had not given him medication necessary to prepare him for the procedure. Declaration of Frank Clement (Clement Dec.) ¶ 5. Defendants contend that there was a "technical problem" at the hospital that prevented the hospital from performing the procedure. Winslow Dec., Ex. R.

On July 20, 1999, Plaintiff filed an administrative appeal (602 appeal) because the colonoscopy had not yet been performed. On August 2, 1999, a colonoscopy was performed on Plaintiff and two polyps were removed. Id., Ex. V. The pathology report on the removed polyps revealed that one was benign and the other malignant. Id., Ex. W. The type of carcinoma revealed by the biopsy is a slow growing, non-invasive malignancy. Id. ¶ 29.

On August 13, 1999, Plaintiff saw Dr. Picone to follow up on the surgery. Dr. Picone recommended that Plaintiff return for another colonoscopy in six months and that Plaintiff be put on a high fiber, low-fat diet with no red meat. Id., Ex. X. Defendant Winslow, the Chief Medical Officer at Pelican Bay, does not believe that a red meat free diet is medically necessary for Plaintiff. Id. ¶ 32. Plaintiff was not immediately put on the specified diet. On August 25, 1999, Plaintiff filed a 602 appeal complaining that he was not receiving the diet ordered by Dr. Picone. Clement Dec., Ex. 14. On October 17, 1999, Plaintiff's low-fat diet was commenced, but Defendants continued to include red meat in his diet. Clement Dec. ¶ 13. On December 21, 1999, Plaintiff began to receive a second sack lunch along with his low-fat diet so that he could substitute the meat portion of his meal without sacrificing his caloric or nutritional intake. Winslow Dec. ¶ 33.

B. Tennis Shoes

Plaintiff has calcaneal bone spurs. Plaintiff contends that because of this condition, the Pelican Bay — issued shoes cut into the back of his heels, making walking and exercise uncomfortable and resulting in blisters on his heels. Clement Dec. ¶ 19. Plaintiff contends that he has a medical need for tennis shoes from a vendor other than the one approved by the facility. Although his treating physician has authorized such purchases, that physician was overruled by Pelican Bay's Health Care Manager. Clement Dec. ¶ 34. Plaintiff appealed the Health Care Manager's decision through Pelican Bay's administrative system. The decision not to permit Plaintiff to purchase tennis shoes from an outside vendor was upheld on appeal. Id. ¶¶ 34, 42

On March 8, 2001, Plaintiff filed a petition for a writ of habeas corpus in State court seeking an order allowing him to purchase tennis shoes from an outside vendor. That writ was denied on August 20, 2001 on the grounds that "a difference of opinion among staff does not constitute deliberate indifference to petitioner's medical needs." Declaration of Julianne Mossler (Mossler Dec.), Ex. D (Order Denying Petition for Writ of Habeas Corpus and Discharging Order to Show Cause).

C. Receipt of Internet Materials

In 1998, Pelican Bay adopted a policy that materials printed from the Internet were considered "unauthorized publications" and could not be enclosed in letters sent to prisoners from the outside. The prison changed this policy several times over the next two years and the most recent version was formalized in a memo from the Warden in February, 2001. Declaration of Deirdre K. Mulligan (Mulligan Dec.), Ex. C.

Pelican Bay prisoners do not have access to the Internet. Prisoners, therefore, cannot directly access materials on-line. Pelican Bay's policy bans prisoners from receiving through the mail hard copies of material downloaded from the Internet.

Plaintiff filed an inmate grievance contesting this policy in January, 1999 when his pen-pal correspondence was returned to the sender due to the new policy. Plaintiff had subscribed to an Internet pen-pal service which allows a prisoner to post a web page and solicit correspondence. Those who would like to communicate with the inmate may send an e-mail to the prisoner's web page. The service provider then downloads the e-mail and sends it via the United States Postal Service to the inmate. On January 10, 1999 and April 6, 1999, the prison mailroom rejected letters sent by the Internet service to Plaintiff because they contained messages downloaded from the Internet. Plaintiff filed a grievance which was ultimately denied by prison authorities.

Like Pelican Bay, at least eight other prisons in California also prohibit prisoners from receiving any items downloaded from the Internet. Mulligan Dec. ¶ 6-8. Presently, the majority of California State prisons have no such regulation.


A. Summary Judgment

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994, 112 S.Ct. 617, 116 L.Ed.2d 639 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

If one party moves for summary judgment and it appears from the oral arguments, records, affidavits, and documents presented to the Court that there is no genuine dispute regarding material facts essential to the movant's case, and that the case cannot be proved at trial, the Court may sua sponte grant summary judgment in favor of the non-moving party. Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d 866 (9th Cir. 1985) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311-12 (9th Cir. 1982)). The fundamental issue is whether the party against whom summary judgment is rendered had a full and fair opportunity to ventilate the issues involved in the motion. See Cool Fuel, 685 F.2d at 312.

B. Section 1983

Title 42 U.S.C. § 1983 "provides a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of State law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).

1. Eighth Amendment Claims

A prison official violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, see Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, see id. (citing Wilson, 501 U.S. at 297, 111 S.Ct. 2321).

In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the circumstances, nature, and duration of the deprivation. The more basic the need, the shorter the time it can be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Substantial deprivations of shelter, food, drinking water or sanitation for four days, for example, are sufficiently serious to satisfy the objective component of an Eighth Amendment claim. See id. at 732-733;

The requisite state of mind to establish an Eighth Amendment violation depends on the nature of the claim. In prison-conditions cases, the necessary state of mind is one of "deliberate indifference." See, e.g., Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (inmate safety); Helling, 509 U.S. at 32-33, 113 S.Ct. 2475 (inmate health); Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321 (general conditions of confinement); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (inmate health). Neither negligence nor gross negligence will constitute deliberate indifference. See Farmer, 511 U.S. ...

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