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WAGNER v. THORTON

United States District Court, S.D. California


September 22, 2005.

DEAUNDRE WAGNER, Plaintiff,
v.
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. § 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 Corp., 693 F.2d 870, 883 (9th Cir. 1982) ("A party may not prevail in opposing a motion for summary judgment by simply overwhelming the district court with a miscellany of unorganized documentation.").

  In ruling on a motion for summary judgment, the court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). "No valid interest is served by withholding summary judgment on a complaint that wraps nonactionable conduct in a jacket woven of legal conclusions and hyperbole." Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989); see also Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) (stating that "mere allegation and speculation do not create a factual dispute for purposes of summary judgment"). B. Legal Standard

  In order to state a cause of action under 42 U.S.C. § 1983, the plaintiff is required to show (1) a violation of rights protected by the Constitution or created by federal statute, that was (2) proximately caused by defendants acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991), Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc) (stating that § 1983 "creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights."). "Qualified immunity, however, shields § 1983 defendants `[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

  1. Eighth Amendment

  The Eighth Amendment prohibits the imposition of cruel or unusual punishment. Whitley v. Albers, 475 U.S. 312, 318 (1986). To assert an Eighth Amendment claim for deprivation of humane conditions of confinement, a prisoner must allege facts sufficient to fulfill two requirements: one objective and one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994), cert. denied, 115 S. Ct. 1695 (1995).

  a. Objective Component for Eighth Amendment Claim

  Under the objective requirement, the prisoner must allege facts sufficient to show that the prison official's acts or omissions deprived him of the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Farmer, 511 U.S. at 834. Prison officials can avoid the objective appearance of cruel or unusual treatment so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 832; Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981).

  "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989). "After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoners' interest or safety." Whitely v. Albers, 475 U.S. at 319. Prison conditions do not violate the Eighth Amendment unless they amount to "unquestioned and serious deprivations of basic human needs" or of "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. at 347 (1981); Wilson v. Seiter, 501 U.S. 294, 298-300 (1991).

  b. Subjective Component for Eighth Amendment Claim

  Under the subjective requirement, the prisoner must allege facts that show that the defendant acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 303 (1991); Allen, 48 F.3d at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; Wilson, 501 U.S. at 302-303.

  In this regard, the Supreme Court has made clear that the state of mind required for an official to be culpable under Section 1983 is that of "deliberate indifference." Farmer, 114 S.Ct. at 1978. Proof of this state of mind does not require a demonstration of express intent to cause harm, by either action or inaction, on the part of the official. Id. However, proof of an official's deliberate indifference to the health or safety of an inmate requires more than proof of mere negligence. Id.; Daniels v. Williams, 474 U.S. 327, 328 (1986).

  "Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury state a cause of action under § 1983." Estelle, 429 U.S. at 105. "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. at 104-05 (footnotes omitted).

  A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. at 104. Thus, the "existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a `serious' need for medical treatment." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) ("serious" medical conditions are those a reasonable doctor would think worthy of comment, those which significantly affect the prisoner's daily activities, and those which are chronic and accompanied by substantial pain).

  "In order to show deliberate indifference, an inmate must allege sufficient facts to indicate that prison officials acted with a culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must be substantial; inadequate treatment due to malpractice, or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Hallett v. Morgan, 287 F.3d 1193, 1204 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Even if an inmate demonstrates that prison officials actually knew of a substantial risk to inmate health or safety, these officials are not deliberately indifferent if they responded reasonably to the risk, even if the harm ultimately was not averted. Farmer v. Brennan, 511 U.S. 825, 844 (1994).

  The court must focus on the seriousness of the prisoner's medical needs and the nature of the defendants' response to those needs. See McGuckin, 974 F.2d at 1059. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

  A mere delay in treatment does not constitute a violation of the Eighth Amendment, unless the delay or denial was harmful. See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985); Hunt, 865 F.2d at 200 ("[D]elay in providing a prisoner with dental treatment, standing alone, does not constitute an Eighth Amendment violation."); Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) ("Certainly, not every twinge of pain suffered as the result of delay in medical care is actionable."). While the harm caused by delay need not necessarily be "substantial," see Wood v. Housewright, 900 F.2d at 1336, 1339-40; McGuckin, 974 F.2d at 1060 & n. 2, the Eighth Amendment is violated if "delays occurred to patients with problems so severe that delays would cause significant harm and that Defendants should have known this to be the case," Hallett, 287 F.3d at 1206, and "a finding that the inmate was seriously harmed by the defendant's action or inaction tends to provide additional support to a claim that the defendant was `deliberately indifferent' to the prisoner's medical needs." McGuckin, 974 F.2d at 1060.

  Regarding inaction or delay of treatment, "the fact that an individual sat idly by as another human being was seriously injured despite the defendant's ability to prevent the injury is a strong indicium of callousness and deliberate indifference to the prisoner's suffering." Id. (citing Estelle, 429 U.S. at 106). However, a finding that the defendants' neglect of a prisoner's condition was an "isolated occurrence," Wood, 900 F.2d at 1334, or an "isolated exception," Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), to the defendants' overall course of treatment of the prisoner ordinarily weighs against a finding of deliberate indifference. McGuckin, 974 F.2d at 1060. Further, prison officials who "ignore? the instructions of a prisoner's treating physician are sufficient to state a claim for deliberate indifference." Wakefield, 177 F.3d at 1165; Estelle, 429 U.S. at 105; Hamilton v. Endell, 981 F.2d 1062, 1066-67 (9th Cir. 1992).

  A prison inmate has no independent constitutional right to outside medical care additional and supplemental to the medical care provided by the prison staff within the institution. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986).

  2. Qualified Immunity

  Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

  Under Saucier v. Katz, 533 U.S. 194 (2001), the Court established a two step approach for addressing claims of qualified immunity. The first step in the qualified immunity analysis is "to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001). "If no constitutional violation is shown, the inquiry ends." Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003). On the other hand, if "the parties' submissions" create a triable issue of whether a constitutional violation occurred, the second question is "whether the right was clearly established." Saucier, 533 U.S. at 201. A constitutional right is clearly established when "it would be clear to a reasonable [government actor] that his conduct was unlawful in the situation he confronted." Id. at 202.

  "In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 199-201 (2001). "Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation.'" Saucier, 533 U.S. 201 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526. Thus, the Supreme Court has "repeatedly? stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).*fn1

  a. Do the Facts as Alleged by the Plaintiff Demonstrate a Violation of a Constitutional Right

  To determine whether a government official is entitled to qualified immunity, the court first must consider the threshold question, which is: Taken in the light most favorable to the party asserting the injury, do the facts alleged show that the official's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (en banc). In performing the initial inquiry, the Court is obligated to accept the facts as alleged by the non-moving party, but not necessarily their application of the law to the facts. Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th Cir. 2004). The issue is not whether the non-moving party states a claim for a violation of their Constitutional rights, but rather whether the officers actually violated a constitutional right. Id. (emphasis original). Cf. Saucier, 533 U.S. at 201 (holding that the "threshold inquiry," assuming as true the facts alleged by the injured party, is whether the "officer's conduct violated a constitutional right[.]"). If no constitutional right was violated, the inquiry is at an end, and the official is entitled to qualified immunity. Saucier, 533 U.S. at 201; see also Robinson, 278 F.3d at 1013.

  b. Was the Constitutional Right Clearly Established

  If the court determines that a violation has occurred, the "next . . . step is to ask whether the right was clearly established." Id. This is a specific, not a general inquiry and the plaintiff bears the burden of showing that the right allegedly violated was clearly established. See Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "If the controlling law is not clearly established, a reasonable person would not be expected to know how to structure his conduct in order to avoid liability." Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir. 1991) (citing Todd v. United States, 849 F.2d 365, 368-69 (9th Cir. 1988)). If the law did not put the officer on notice that his conduct was clearly unlawful, summary judgment based on qualified immunity is improper. Saucier, 533 U.S. at 202.

  A right is clearly established "[i]f the only reasonable conclusion from binding authority [was] that the disputed right existed." Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). "The contours of the right must be sufficiently clear that [at the time the allegedly unlawful action is taken] a reasonable official would understand that what he is doing violates that right." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quoting Anderson, 483 U.S. at 640). For a right to be clearly established, "the very action in question" need not "ha[ve] previously been held unlawful"; instead, the "unlawfulness must be apparent" in light of pre-existing law. Anderson, 483 U.S. at 640. "Thus, when the defendants' conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established." Mendoza, 27 F.3d at 1361 (quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)); see Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985) ("Certainly . . . [§ 1983 plaintiffs] need not always produce binding precedent. . . . There may be cases of conduct so egregious that any reasonable person would have recognized a constitutional violation.").

  Thus, "the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (citing Anderson, 483 U.S. at 640).

 

This is not to say that the formulation of a general rule is beside the point, nor is it to insist the courts must have agreed upon the precise formulation of the standard. Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.
Id. at 2157. "If the [defendant's] mistake as to what the law requires is reasonable, however, the official is entitled to the qualified immunity defense." Id. at 2158. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

  C. Analysis

  In order to state a cause of action under 42 U.S.C. § 1983, the plaintiff is required to show a violation of his rights protected by the Constitution or created by federal statute, which was proximately caused by defendants acting under color of state law. Plaintiff has alleged a violation of his Eighth Amendment right to be free from cruel and unusual punishment. In order to demonstrate that Defendant violated his Eighth Amendment rights, Plaintiff must allege facts sufficient to prove that Defendant's acts or omission deprived him of the minimal civilized measures of life's necessities and that the Defendant knew of and disregarded an excessive risk to the prisoners health.

  1. Was there a Violation of Plaintiff's Constitutional Rights

  Plaintiff alleges that on October 2, 2003, the Defendant, Dr. Thorton, intentionally denied and delayed the proscribed medical treatment for his established skin condition thereby causing Plaintiff further significant injury and wanton infliction of emotional distress. Specifically, Plaintiff alleges that Defendant's failure to prescribe Triamcinolone*fn2 cream on October 2, 2003, to treat Plaintiff's dermatitis "set the stage for Plaintiff's subcutaneous episode to intensify and become aggravated to the point that said condition, ultimately, required heroic measures, i.e., hip surgery" on April 13, 2004. See Plaintiff's Affidavit at 3 and Exh. D.

  However, despite Plaintiff's contentions, his Department of Corrections medical record shows that he was seen by Doctors at Centinela State Prison thirteen (13) times over a nineteen (19) month period. Additionally, Plaintiff's medical records demonstrate that when Plaintiff was seen on July, 25, 2003, by Dr. Peterson, a contract dermatologist for Centinela State Prison, that his "rash has been resolved" and that "[n]o treatment indicated." Less than three months later on October 2, 2003, Plaintiff was seen by Defendant, Dr. Thorton, for complaints unrelated to any rash and was treated by Defendant for those complaints.*fn3 During this visit, Defendant noted no rash and therefore ordered no Traimcinilone cream. Dr. Thorton did, however, assessed Plaintiff complaints and refilled his three blood pressure medications.

  More than five weeks later on November 13, 2003, when Plaintiff was again seen by the Defendant, Plaintiff reported a rash that "comes and goes" and claimed that it was irritated by rayon. Defendant noted some slight indications of a rash at this time*fn4 and therefore ordered treatment with the Triamcinolone cream and continued monitoring of Plaintiff's blood pressure.

  Plaintiff's was not seen again until January 13, 2004, for a rash, which this time was located on his right hip area. Plaintiff was prescribed Triamcinolone cream and another cream and the treating physician, Dr. Esperanza, noted that excision of the area may be necessary. Plaintiff was not seen again until April 7, 2004, by Dr. Esperanza, who noted that Plaintiff had chronic dermatitits and scheduled Plaintiff for a biopsy of the rash on his right hip area, which was performed on April 13, 2004. The Court notes that the areas where a rash was observed during Plaintiff's November 13, 2003, visit with Defendant (upper right arm and lower abdomen), do not correspond with the right hip area that eventually became more severe and led to Dr. Esperanza ordering a biopsy of the affected area. Furthermore, Plaintiff's medical records do not indicate that he underwent a "hip surgery" to excise the area on his right hip, rather, Dr. Esperanza performed a biopsy on the area to rule out cancer myeloma.*fn5

  Based on the foregoing, the Court finds that even when the facts are construed in a light most favorable to the Plaintiff, the Plaintiff has failed to establish a violation of his Eighth Amendment rights. Plaintiff has not demonstrated that the Defendant failed to treat a serious medical need. There was no physical evidence of a rash during Plaintiff's October 2, 2003, appointment. This, in combination with dermatological findings of Dr. Peterson's July 25, 2003 note, which indicate that Plaintiff's dermatitis was resolved and no further treatment indicated, suggests that Defendant's course of treatment was in no way unreasonable. Plaintiff contends that the Defendant should have, at the Plaintiff's insistence, reviewed Plaintiff's medical record, and that had Defendant done this he would have prescribed the Triamcinolone cream as Plaintiff requested. Plaintiff argues that Defendant's failure to do so amounted to deliberate indifference to Plaintiff's serious medical needs.

  The Court disagrees. The Court must focus on both the seriousness of the prisoner's medical need and the nature of the Defendant's response to that need. Here the evidence does not demonstrate that there was a serious medical need, because Plaintiff presented with no rash during the October 2, 2003, appointment and presented at a follow-up appointment on November 13, 2003 with minimal evidence of a rash on his right upper arm and lower abdomen, neither of which correspond to the rash that developed several months later on Plaintiff's right hip area. Additionally, the surgery that Plaintiff alludes to was a biopsy that was ordered to rule out a type of cancer. The biopsy was not performed in response to a lack of adequate medical treatment or to prevent further injury, but rather in addition to various other treatments which were prescribed in order to rule out a more serious condition.

  In light of this evidence, the Court finds Defendants response reasonable and the medical care provided to be adequate under the Eighth Amendment. Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not sufficient to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, even if Plaintiff could establish that Defendant knew of a substantial risk to his health, the Defendant will not be found to be deliberately indifferent if he responded reasonably to the risk, even if the harm ultimately was not averted. Farmer v. Brennan, 511 U.S. 825, 844 (1994).

  Based on the foregoing, the Court finds that Plaintiff cannot demonstrate that there is a triable issue of material fact as to whether Defendant acted with deliberate indifference to Plaintiff's serious medical needs in violation of Plaintiff's Eighth Amendment rights. As such, the Plaintiff has failed to state a cause of action under 42 U.S.C. § 1983.

  2. Qualified Immunity

  As set forth above, the Court finds that the Plaintiff has failed to state a cause of action under section 1983. Since the Plaintiff has failed to demonstrate that there is a triable issue of material fact, the Defendant is entitled to summary judgment and the Court need not evaluate further, whether the Defendant is entitled to qualified immunity.

  Conclusion.

  For the reasons set forth herein, it is recommended that Defendant's Motion for Summary Judgment be GRANTED. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(1988) and Fed.R.Civ.P. 72(b). Plaintiff may file with the Court written objections to this Report and Recommendation on or before October 13, 2005. Any such written objections should be captioned "Objections to Report and Recommendation" and a copy must be served on all parties. Any reply to the objections shall be served and filed on or before October 27, 2005.

  IT IS SO ORDERED.

20050922

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