United States District Court, S.D. California
September 22, 2005.
DEAUNDRE WAGNER, Plaintiff,
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
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
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
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.
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.
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).
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
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
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.
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.
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