FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding through counsel with a civil rights action seeking relief under 42 U.S.C. § 1983. Plaintiff is suing a California Department of Corrections & Rehabilitation nurse and two doctors, claiming they exhibited deliberate indifference to his medical needs after he was mistakenly given medication prescribed for another inmate with the same last name, by attempting to cover up the mistake and by discontinuing his HIV medications without his knowledge or consent. Pursuant to a court order, plaintiff filed a second amended complaint on March 13, 2008. Defendants responded on August 13, 2008, with a motion to dismiss, based on Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In his second amended complaint ("SAC"), plaintiff claims that he suffered an allergic reaction on June 12, 2007, around 9:40 a.m., when a nursing trainee filled a syringe with Pentamidine and handed it to Nurse Galloway who administered it to plaintiff in a breathing treatment. Plaintiff was taking Dapsone at the time.*fn1 Plaintiff states Nurse Galloway returned plaintiff to his cell without taking his vital signs. (SAC at 4.) Fifteen minutes later, plaintiff was finding it more and more difficult to breathe. C.O. Rinetti first took plaintiff back to the U-Wing clinic but both nurses were gone, so Rinetti rushed plaintiff to the Emergency Room.
On June 12, 2007, at 10:10 a.m., plaintiff was seen by a triage nurse, who recorded plaintiff's vitals as Temperature 98.6, pulse 78, respiration 20, blood pressure 156/97, and Oxygen Saturation 98%. (SAC at 36.) Plaintiff reported he had received the wrong medication, noted his allergy and stated "I'm scared I'll die." He had received a "breathing treatment, but no doctor's order for respiratory treatment." (SAC at 36.) The nurse opined that plaintiff was anxious, looked scared, but ambulated without difficulty. His lung sounds were diminished bilaterally. He was diagnosed as at risk for adverse reaction to respiratory therapy wrong medication and was referred to Dr. Lang. (SAC at 36.) The "Urgent" box was checked: "within twenty-four hours." (Id.) Plaintiff was advised to return to B-1 clinic if adverse reaction occurred, and to increase fluids. (SAC at 36.) Plaintiff was discharged at 10:36 a.m. (Id.)
On June 16, 2007, plaintiff returned to the Emergency Room for difficulty breathing and chest pain. (SAC at 8.) Plaintiff alleges these symptoms were a severe allergic reaction caused by the combination of medications he had taken, Dapsone and Pentamidine. (SAC at 5-8.) Dr. Bethlehem Haile put plaintiff on the EKG heart monitor twice. (SAC at 8.)
At some point, Dr. Narinder Saukhla stopped plaintiff's prescription for Hydrochlorothiazide. (SAC at 8.) Plaintiff contends Dr. Saukhla tried to cover up the nurse's mistake by attempting to change plaintiff's Dapsone prescription to Pentamidine knowing that plaintiff mistakenly received Pentamidine on June 12, 2007, to which he had an allergic reaction. (SAC at 5, 10.)
On June 20, 2007, plaintiff discovered Dr. Haile had stopped all of plaintiff's HIV medications, even the Kletra - Truvada - Azithromycin. (SAC at 8.) Dr. Haile started the HIV medications again on June 20, 2007. (SAC at 8.)
On June 21, 2007, at 20:30 hours, a nurse again attempted to give plaintiff the wrong medication. (SAC at 12.) Plaintiff informed the nurse and she corrected the mistake before administering the dose.
On July 25, 2007, Dr. Haile stopped all of plaintiff's HIV medications for 23 days. (SAC at 5, 8-9.) Plaintiff alleges this medication was stopped for no reason and without his consent. (Id.)
On August 16, 2007, Dr. Saukhla re-started plaintiff's HIV medications. (SAC at 9.) Plaintiff alleges Dr. Saukhla knew plaintiff had an allergic reaction from the Dapsone and Pentamidine mixed together and thus kept trying to change plaintiff's prescription from Dapsone to Pentamidine because he knew Galloway had given plaintiff the wrong medication. Plaintiff avers that every time plaintiff saw Dr. Saukhla, he would try to change plaintiff's prescription. Thus, plaintiff started refusing to see Dr. Saukhla. Plaintiff alleges Dr. Saukhla was attempting to cover up the mistake.
Defendants seek to dismiss the lawsuit on two grounds. First, they contend plaintiff's Second Amended Complaint sets forth facts that establish defendants were not deliberately indifferent under 42 U.S.C. § 1983, and second, they contend the alleged facts fail to establish that plaintiff's medical needs were objectively serious.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question. See Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The complaint must allege both that plaintiff's medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Furthermore, where the allegation is that delay of medical treatment evidenced deliberate indifference, the plaintiff must show that the delay was itself harmful. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992).
Here, the reasoning of Spann v. Roper, 453 F.3d 1007 (8th Cir. 2006)(per curiam) is persuasive. Id. In Spann, a prisoner was given the wrong medication, fainted as a result, and was left in his cell for more than three hours without medical attention. Id. The Eighth Circuit found that the nurse did not "exhibit deliberate indifference" by requiring the plaintiff to take another inmate's medication. Id. at 1008. The Spann court noted that "to succeed on [a] deliberate-indifference claim, [the] plaintiff must show more than negligence or gross negligence." Id. (citing Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir.2000)). However, the Spann court remanded the case to determine whether the nurse was deliberately indifferent to the ...