The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a former state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he received inadequate medical care while housed at California State Prison-Solano (CSP-Solano). In particular, plaintiff contends that he lost all hearing in his left ear as a result of a delay in surgery.
Pending before the court are summary judgment motions filed March 2, 2009, on behalf of defendant Naku and defendants Rallos, Thor and Traquina. On April 2, 2009, a hearing was held regarding the pending motions.
After carefully reviewing the record, the court recommends that summary judgment be granted as to defendants Rallos and Thor, and denied as to defendants Traquina and Naku.
II. Summary Judgment Standards Under Fed. R. Civ. P. 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2553.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).
III. Legal Standard for Eighth Amendment Claim
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, 97 S.Ct. 285, 292 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 998 (1992).
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. Indications that a prisoner has a serious need for medical treatment are the following: 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. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835, 114 S.Ct. at 1978. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 114 S.Ct. at 1979. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842, 114 S.Ct. at 1981.
It is nothing less than recklessness in the criminal sense -- subjective standard -- disregard of a risk of harm of which the actor is actually aware. Id. at 838-842, 114 S.Ct. at 1979-1981. "[T]he official must both be 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." Id. at 837, 114 S.Ct. at 1979. Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. at 1984. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842, 114 S.Ct. at 1981. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42, 114 S.Ct. at 1981. However, obviousness per se will not impart knowledge as a matter of law.
Also significant to the analysis is the well established principle that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
Moreover, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.
Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985). Although the delay in medical treatment must be harmful, there is no requirement that the delay cause "substantial" harm. McGuckin, 974 F.2d at 1060, citing Wood v. Housewright, 900 F.2d 1332, 1339-1340 (9th Cir. 1990) and Hudson, 112 S.Ct. at 998-1000. A finding that an inmate was seriously harmed by the defendant's action or inaction tends to provide additional support for a claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992). In summary, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061.
At all relevant times, defendants Rallos and Naku were employed at CSP-Solano as primary care doctors. At all relevant times, defendant Traquina was employed at CSP-Solano as the Chief Medical Officer (CMO) and Health Care Manager (HCM). As CMO, his duties were to oversee clinic operation at all clinics and to respond to health care delivery problems presented by the institution staff or managers. As HCM, his duties were to manage the transfer of patients to or from other institutional and community providers. At all relevant times, defendant Thor was the Chief Physician and Surgeon at CSP-Solano. His duties were to evaluate the physician and surgical staff, medical records, physician compliance and to contract medical delivery and care.
Plaintiff was incarcerated at CSP-Solano from approximately September 2000 to the summer of 2008. While housed at the San Mateo County Jail before entering CSP-Solano in 2000, plaintiff experienced pain, blood and pus in his left ear. In the year 2000 before entering CSP-Solano, plaintiff experienced a hearing loss in his left ear of "like half."
On April 18, 2001, plaintiff was examined by ear specialist Dr. Hall, who diagnosed plaintiff as having chronic otitis media and externa on his left ear and a perforated ear drum. He prescribed Cipro and ear drops to resolve the flare-ups.
On July 23, 2003, Dr. Hall examined plaintiff again. This time, Dr. Hall diagnosed plaintiff as having chronic mastoiditis, which is an inflammation of the bone behind the ear in his left ear. Dr. Hall recommended that plaintiff obtain a computed topography (CT) scan of his mastoid area and a left side radical mastoidectomy, which is a surgical procedure to remove infected air cells from within the mastoid bone.
On July 24, 2003, the request for a CT and mastoidectomy were authorized.
On August 11, 2003, defendant Naku examined plaintiff for the first time in the Satellite Clinic. Plaintiff complained of a fever and a left earache which had been intermittent over the previous four years. Dr. Naku found that plaintiff had an inflamed left eardrum with abnormal drainage of fluid. Dr. Naku diagnosed plaintiff's condition as serious otitis media and prescribed antibiotics and Motrin. Dr. Naku also ordered a two-day lay in, allowing plaintiff to remain in his bed. Dr. Naku scheduled plaintiff for a follow-up appointment in one week, but the appointment would be with an available physician and not necessarily Dr. Naku.
On August 18, 2003, plaintiff saw Dr. Rohrer.
On August 20, 2003, Dr. Hall learned that plaintiff's CT had not been performed. He therefore re-ordered it, scheduling it for September 25, 2003.
On September 2, 2003, Dr. Naku again saw plaintiff in the Satellite Clinic where he complained of left ear pain and a fever. Plaintiff also said he was diabetic. Dr. Naku determined that plaintiff had otitis externa and a perforated ear drum on the left side. He prescribed a different antibiotic and Tylenol. He also scheduled plaintiff for a HBA-1C glycosylated hemoglobin test and random blood sugar tests to evaluate plaintiff for diabetes management. He also prescribed crepe soled shoes for comfort.
On October 1, 2003, plaintiff had a follow-up appointment with Dr. Hall. Dr. Hall again determined that plaintiff had chronic otitis/media/mastoiditis and cholesteatoma. He noted that the CT had still not been performed and issued a third request for the CT exam.
On October 2, 2003, Dr. Hall's third request for the CT exam was authorized by Christine Lambert.
Plaintiff's CT scan was performed on October 10, 2003.
On October 27, 2003, plaintiff saw Dr. Naku again, complaining of early morning stiffness, fatigue and knee, shoulder and hand pain. Plaintiff also complained of left ear pain and occasional fevers. Dr. Naku again noted plaintiff's left side perforated ear drum and tenderness during the exam. Dr. Naku examined plaintiff's joints and his assessment was recurrent otitis media and possible rheumatoid arthritis. Dr. Naku scheduled several tests to evaluate plaintiff for arthritis or rheumatism. He also referred plaintiff for a consult with an ENT specialist and prescribed antibiotics for infection and ibuprofen for pain. After being informed that plaintiff had seen Dr. Hall on October 1, 2003, defendant Naku determined that referral to the ENT specialist was not necessary.
On April 29, 2004, Dr. Hall submitted a third request for plaintiff to have the mastoidectomy performed. On the "Physicians's Request for Services" form, Dr. Hall designated this surgery as urgent.
On June 23, 2004, Dr. Hall noted that the mastoidectomy had still not been performed. He concluded that plaintiff required a radical mastoidectomy of at the University of California San Francisco (UCSF) medical center. He then made a fourth request that the mastoidectomy be performed.
On July 24, 2004, plaintiff filed a first level 602 administrative appeal complaining that medical staff had failed to provide the requested surgery.
On August 3, 2004, Dr. Tan, a primary care physician, issued a referral for evaluation of plaintiff at UCSF/UCD, attaching Dr. Hall's earlier request.
On August 17, 2004, plaintiff was taken to UCSF for surgical evaluation. The UCSF specialist concluded that further treatment by antibiotics was "probably doom[ed] to failure," and ordered plaintiff to return for a follow up exam three weeks later to discuss surgery.
On September 29, 2004, Dr. Tan responded to plaintiff's administrative appeal. The response stated that plaintiff had been seen by Dr. Hall on June 23, 2004, and July 29, 2004, but did not address the fact that the surgery had not yet been performed. On October 10, 2004, plaintiff filed his appeal to the next level of review.
On November 22, 2004, defendant Rallos interviewed plaintiff in response to his administrative appeal. Among other things, plaintiff told defendant Rallos that he was sent to UCSF in August 2004 and had been told to return in two weeks, but he had not yet been sent back. While gathering facts for the response to the appeal, defendant Rallos could not locate the examination records from UCSF. Defendant Rallos asked office staff to obtain the UCSF records.
On November 29, 2004, Dr. Rallos wrote a response to plaintiff's grievance stating that it was partially granted. She wrote that plaintiff had been seen by Dr. Hall twice in July and that on November 22, 2004, she submitted a referral for plaintiff to be seen at UCSF as soon as possible.
On December 10, 2004, plaintiff filed a second level appeal. Defendant Thor reviewed plaintiff's case for defendant ...