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September 22, 2005.

DONALD THORTON, M.D. Defendants.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Report and Recommendation to Grant Defendant's Motion for Summary Judgment [Doc No. 16]
Plaintiff Deaundre Wagner, a state prisoner proceeding pro se, filed this action under 42 U.S.C. ยง 1983 alleging that the Defendant violated his rights under the Eighth Amendment to be free from cruel and unusual punishment by exhibiting deliberate indifference to Plaintiff's serious medical needs. Defendant, Dr. Donald Thorton moves for summary judgment. Plaintiff has filed an opposition.

Pursuant to Local Civil Rule 72.3(f), this motion was referred to Magistrate Judge Battaglia for hearing and issuance of a Report and Recommendation. Plaintiff was notified pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) of his obligations in responding to Defendants' Summary Judgment Motion.

  This motion is appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons explained herein, it is recommended that Defendant's Motion for Summary Judgment be GRANTED. I. Background

  A. Plaintiff's Medical History Prior to His April 25, 2003 Reception at Centinela State Prison

  Plaintiff was received at the California Institute for Men in Chino, California on December 2, 1988. There, on September 9, 1992, a skin biopsy was performed and the September 15, 1992, report indicated "chronic lichenoid dermatitis," a skin condition that presents with flat-topped bumps that develop into scaly patches, which can cause itching and irritation. Defendant contends that this sort of skin condition is a recurring one for which there is no known cure and that the standard treatment is merely to control the symptoms. Nothing in Plaintiff's medical records throughout his incarcerations indicates that any treatment is necessary when there is no external rash visible.

  Evaluation of and treatment for Plaintiff's skin condition continued over the next several years. On December 22, 1994, Plaintiff was granted a referral for dermatological evaluation. On December 07, 1995, the chief medical officer at Corcoran State Prison diagnosed Plaintiff with "Skin Biopsy-Proven Severe Lichenoid Dermatitis." Plaintiff was again examined by a dermatologist on April 07, 1999. He was also treated by medical staff members at Salinas Valley State Prison for lichen planus (the prototypical form of lichenoid dermatitis) on March 08, 2003 and April 1, 2003. His medication administration records indicate that hydrocortizone cream was to be applied to affected areas during the period of October 28, 2002 to November 27, 2002, and that Triamcinilone cream was to be applied to affected areas from December 18, 2002 to February 16, 2003, and again from April 22, 2003 to June 30, 2003.

  B. Plaintiff's Medical History at Centinela State Prison

  Plaintiff was received at Centinela State Prison on April 25, 2003, at which time Tetracycline was ordered. His initial health care screening form indicates that he was currently under doctor's care for lichen planus. On May 8, 2003 when Plaintiff was examined and treated by Defendant, Dr. Thornton, who requested that Plaintiff be seen by a dermatologist for reason of a "persistent dry rash."

  Dr. Barreras, a staff physician at Centinela State Prison, requested a refill of Triamcinilone cream for Plaintiff on May 21, 2003. He examined and treated Plaintiff about a month later on June 24, 2003. Progress notes from the examination cite Plaintiff's admitted history of atopic dermatitis which seemed to be currently resolved with the Triamcinilone cream. Although there was no rash presently visible, a refill of Triamcinilone cream was ordered, application of which was to be decreased to once daily and then only as needed. Dr. Barreras examined and treated Plaintiff once more on July 8, 2003, but progress notes indicate no complaints by Plaintiff of his skin condition, and no reference is made to it by Barreras.

  Less than three weeks later, on July 25, 2003, Dr. Peterson examined and treated Plaintiff, as referred by Defendant. Plaintiff reported that the rash had been resolved with the Triamcinilone cream. Dr. Peterson indicated that no treatment was necessary but that Plaintiff could return as needed for follow-up.

  On October 2, 2003, Defendant again examined and treated Plaintiff. As no rash was present, Defendant did not order more Triamcinilone cream. Plaintiff alleges, however, that he complained at this time of "itching and irritation" under the skin, and that these complaints were ignored. Plaintiff further alleges that Defendant suggested that Plaintiff's family send a bottle of baby oil in a care package to help alleviate any of Plaintiff's discomfort. When Defendant examined and treated Plaintiff just over a month later, on November 13, 2003, Defendant's progress notes state that the rash "comes and goes" and that Plaintiff complained of rayon irritating the condition. Triamcinilone cream was ordered at this time.

  Beneficio Esperanza, M.D., a staff physician at Centinela State Prison, examined and treated Plaintiff on January 13, 2004. Plaintiff complained of having suffered for 2-2.5 months of a flaky dry rash on his right hip area. Esperanza's treatment plan included more Traimcinilone cream and possible excision. On April 7, 2004, Esperanza ordered a biopsy, which he then performed on Plaintiff's right hip on April 13, 2004. The report of this biopsy on April 28, 2004 indicated lichenoid inflammation on Plaintiff's right hip area.

  Dr. Barreras again examined and treated Plaintiff on May 6, 2004. Barreras found a scaly excoriated rash along Plaintiff's right chest wall, consistent with atopic dermatitis. However, no blisters, postules, papules, or secondary infections were noted. Barreras' plan included Traimcinilone cream applied to the rash and Benadryl, if needed, for itching. On August 26, 2004, Dr. Esperanza again examined and treated Plaintiff, who complained of a rash that oozed and itched a little over the prior two weeks. Esperanza found a scaly rash on Plaintiff's left thigh and abdomen. He ordered two creams and a body wash.

  Plaintiff was seen once more at Centinela State Prison on November 29, 2004 by S. Khatri, M.D. and again at California State Prison, Lancaster on January 26, 2005, by H. Cassim, M.D. Creams were ordered on both occasions.

  II. Discussion

  A. Standard of Review

  Fed.R.Civ.P. 56(c) authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for the granting of a directed verdict. Judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). However, "[i]f reasonable minds could differ," judgment should not be entered in favor of the moving party. Id.

  The parties bear the same substantive burden of proof as would apply at a trial on the merits, including plaintiff's burden to establish any element essential to his case. Liberty Lobby, 477 U.S. at 252; Celotex v. Catrett, 477 U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence, which the moving party "believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). More than a "metaphysical doubt" is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To successfully rebut a properly supported motion for summary judgment, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inferences made in the plaintiff?'s favor, could convince a reasonable jury to find for the plaintiff?." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing FED.R.CIV.P. 56; Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 249); see also Paine v. City of Lompoc, 265 F.3d 975, 984 (9th Cir. 2001) ("[I]f a plaintiff cannot in its summary judgment motion factual submissions connect any particular defendant to the incidents giving rise to liability, that defendant is entitled to summary judgment and may not be required to go to trial.").

  While the district court is "not required to comb the record to find some reason to deny a motion for summary judgment," Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988), Nilsson v. Louisiana Hydraulic, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may nevertheless exercise its discretion "in appropriate circumstances," to consider materials in the record which are on file, but not "specifically referred to." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). However, the court need not "examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the moving papers with adequate references so that it could be conveniently found." Id.; see also Zoslaw v. MCA Distributing ...

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