ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff claims that Dr. Penner failed to immediately and properly treat plaintiff's infection and that the failure violated plaintiff's Eighth Amendment rights. Plaintiff also claims that this alleged failure deprived plaintiff of a federally protected liberty interest under the Fourteenth Amendment and violated Cal. Gov't Code § 845.6 and Cal. Penal Code § 2652 .
Dr. Penner has moved for summary judgment. For the reasons explained below, the motion must be granted.
At all times relevant to this action, plaintiff was a prisoner at California State Prison, Sacramento. Defendant Dr. Penner was a physician there. Def.'s Mot. for Summ. J., Attach. 4, Decl. of Penner ("Penner Decl."), ¶ 1.*fn1
Defendant Penner describes in his declaration his role in the prison medical system and how prisoners may obtain access to medical care. He describes his position as "staff physician and surgeon" in which he was to "provide appropriate health care within the scope of my license." Penner Decl., at ¶ 2-3. Significantly here, he did not supervise nurses or pharmacy staff. Id. at ¶ 3. Pharmacy staff were responsible for processing prescriptions and providing medication to medical staff for distribution to prisoners. Id. Penner asserts that as a staff physician, he was "assigned to a 'yard'*fn2 and work[ed] at the yard clinic on assigned days and shifts." Id., at ¶ 4. Thus, he saw any prisoner who went to the clinic during his shift. Id. Dr. Penner asserts that it was the policy and procedure of the California Department of Corrections and Rehabilitation ("CDCR") and California State Prison, Sacramento that staff physicians were not "assign[ed] . . . to an inmate to continuously monitor that particular inmate's medical care." Id. Plaintiff, however, asserts that Dr. Penner was his chronic care physician; and, therefore, he was responsible for treating plaintiff's epilepsy, asthma and other medical conditions that require ongoing monitoring and treatment.*fn3 Plaintiff's Deposition, lodged September 22, 2008 ("Pl.'s Dep."), at 21.
Prisoners could obtain medical care in several ways. They could complete a written form*fn4 provided by the prison, appear at the "Medical Doctors line," which is available in the morning, express the need to a guard, a Medical Technical Assistant ("MTA"), or a registered nurse ("RN") during pill call, or file an administrative appeal. Penner Decl., at ¶ 4. Plaintiff asserts that prisoners who wanted to go to the medical clinic without making a request could do so while on the exercise yard. Am. Compl., at 3.
Plaintiff has submitted evidence about the medical condition for which he sought treatment. He was diagnosed with cellulitis.*fn5 Pl.'s Opp'n, Ex. A, at 16. Plaintiff's evidence shows that cellulitis is a "potentially serious bacterial infection" of the skin. Id. It "appears as a swollen, red area of skin that feels hot and tender, and it may spread rapidly." Id. Untreated, "the spreading bacterial infection may rapidly turn into a life-threatening condition." Id. Plaintiff also has submitted evidence that as late as 2007, many prison physicians prescribed Keflex for skin infections, including MRSA,*fn6 but the medication was not helpful for skin infections in general, and permitted "prolonged infection and increased opportunities for the infection to grow."*fn7 Pl.'s Opp'n, Ex. A, at 54.
The court now turns to the events giving rise to this action.
B. Events Relevant to this Action
As will become apparent, one dispute before the court is whether Dr. Penner diagnosed plaintiff as suffering from a bug bite or from cellulitis. There is no information about whether or how treatment of a bug bite differs from that of cellulitis.
On the morning of Friday, January 20, 2006, plaintiff's right hand was swollen and discolored, and he was in a great deal of pain. Am. Compl., at 3.*fn8 He complained to a medical technical assistant, who told him to complete a written request for medical attention, which he did. Id. Plaintiff wrote, "[t]he back of my hand, from the tips of my fingers to my wrist is extremely swollen and red." Pl.'s Opp'n, Ex. A, at 4. On this form, the MTA noted that the swelling began "a couple days ago," and noted that plaintiff speculated that perhaps an insect bite caused the swelling. Id. When plaintiff was released to the exercise yard that day, he requested permission to enter the clinic. Id. An unidentified prison employee denied him entry. Id. There is no evidence about the reason for this denial. In an attempt to ease the pain in his hand, plaintiff began taking high doses of Motrin. Id. at 3-4.
The next morning, Saturday, January 21, 2006, the swelling and pain in plaintiff's hand had worsened. Am. Compl., at 4. While on the exercise yard, plaintiff showed his hand to a guard and requested access to the medical clinic. Id. This guard escorted plaintiff to the clinic emergency room. Id. There, Mr. Brebeck, an attendant who was not a physician, examined plaintiff's hand and wrist. Id. at 4. Brebeck told plaintiff that it appeared plaintiff had an infection, but that he could not prescribe medications. Id. He told plaintiff to return to the clinic on Monday when a doctor would be there. Id. By Sunday morning, the swelling in plaintiff's hand was so bad that he could not straighten his fingers, and his hand and wrist were red. Id. at 4-5. Once again, a guard escorted plaintiff to the medical clinic. Id. at 5. Plaintiff showed his hand to Brebeck and explained that he was taking Motrin he had obtained from other prisoners. Id. Brebeck advised plaintiff that he was taking too much Motrin and told plaintiff to return to the clinic Monday, when a doctor would be available. Id. at 5-6.
On Monday, January 23, 2006, plaintiff saw Dr. Wedell*fn9 in the medical clinic. Pl.'s Opp'n, Ex. A, at 6. Plaintiff complained of "high levels" of pain. Id. Plaintiff told Dr. Wedell that on January 19, 2006, he fell from an upper bunk after having a seizure. Id. Dr. Wedell noted that plaintiff speculated that he might have been bitten by a spider. Id. In light of plaintiff's report that he had fallen from his bunk, Dr. Wedell prescribed Tylenol and an ice pack for pain, and directed that plaintiff keep his hand elevated above his head in order to reduce swelling. Id. at 7. Later that day, plaintiff returned to the medical clinic. This time, Dr. Penner examined him. Am. Compl. at 7; Penner Decl., at ¶ 6.
At deposition, plaintiff testified that he told Dr. Penner about his initial symptoms and how they had progressed. Dr. Penner noted that plaintiff "had no apparent distress," but his right hand and his third metacarpal were swollen." Penner Decl., at ¶ 6. Dr. Penner also noted that plaintiff had only 30% range of motion of the third metacarpal bone.*fn10 Id. In his complaint and at deposition, plaintiff asserted that Dr. Penner diagnosed plaintiff as suffering from a bad reaction to an insect bite. Compl., at 7-8; Pl.'s Dep., at 24. Nothing in the record suggests that Dr. Penner thought that plaintiff may have suffered a bug bite. In his declaration, Dr. Penner explains that he believed plaintiff had cellulitis. Penner Decl., at ¶ 6. Attached to his declaration is a medical record showing that on January 23, he noted that plaintiff had cellulitis. Penner Decl., Ex. A. The parties agree that Dr. Penner prescribed Keflex, which Penner asserts is an antibiotic used to treat bacterial skin infections. Am. Compl., at 8; Pl.'s Dep., at 24; Penner Decl., at ¶ 6 & Ex. B. Dr. Penner explained that the medication would treat the swelling and the pain, and said that the medication would be available to plaintiff in the evening "pill-call." Am. Compl., at 8. However, the medication was not then available to plaintiff. Am. Compl., at 8-9; Pl.'s Dep., at 29-30.
In fact, it was not given to plaintiff during the pill calls on January 24 or 25, either. Am. Compl., at 9-10. This was the case even though Dr. Penner's January 23, 2006, prescription shows that a nurse, whose signature is illegible, wrote "Pharmacy," and dated it "1-23-06." Penner Decl., at ¶ 6 & Ex. B. Dr. Penner explains that this dated notation means that the nurse submitted the order to the pharmacy. Penner Decl., at ¶ 7. Plaintiff does not submit any evidence contesting this fact.
On January 25, 2006, plaintiff made a brief written request for medical attention, on which he wrote, "Swollen hand - help!!" Pl.'s Opp'n, Ex. A, at 9. Based on this request, plaintiff went to the medical clinic, where Dr. Wedell prescribed a sling for plaintiff to elevate his arm, ice to decrease the swelling and Tylenol for pain. Id. at 10. On the morning of Thursday, January 26, 2006, plaintiff returned to the medical clinic because the pain and swelling had spread from his right hand into his wrist and forearm. Am. Compl., at 11-12. Mr. Bax, an MTA, examined plaintiff and noted that plaintiff might be suffering from a systematic Staph infection. Am. Compl., at 12; Pl.'s Dep., at 34-35. Later that day, Dr. Penner again examined plaintiff and learned that plaintiff had not been given Keflex until that morning. Penner Decl., ¶ 8; Pl.'s Opp'n, Ex. A, at 11. He noted that plaintiff's right hand was "moderately swollen and he could not flex or extend well." Penner Decl., at ¶ 8. Plaintiff's wrist was slightly red and the swelling extended to his wrist. Id.; Pl.'s Opp'n, Ex. A, at 11 (emphasis in original). Dr. Penner still believed that plaintiff had cellulitis. Am. Compl., at 13; Penner Decl., ¶ 8 & Exs. C, D. He ordered Tylenol with codeine to teat the pain. Am. Compl. at 13; Pl.'s Opp'n, Ex. D. He also prescribed Keflex but doubled the dosage, directing that it be given "now." Penner Decl., ¶ 8 & Ex. C (emphasis in medical record); Pl.'s Opp'n, Ex. A, at 11. Dr. Penner was concerned that the infection was spreading, but he believed that immediate administration of the increased Keflex dosage would be an effective treatment and prevent the infection from spreading. Penner Decl., at ¶ 8. Dr. Penner also ordered plaintiff to report to the emergency room the next day between 12:00 p.m. and 2:00 p.m., and noted in plaintiff's medical record that he was to be paged so that he personally could examine plaintiff again. Penner Decl., at ¶ 9; Pl.'s Opp'n, Ex. A, at 12. Dr. Penner wanted to ensure that the infection had stabilized. Id. After re-examining plaintiff, Dr. Penner planned to take appropriate action. Dr. Penner believed that the following options likely would exist after examining plaintiff again: (1) continue the Keflex; (2) substitute a different medication for the Keflex; (3) order further testing; or (4) hospitalization. Id.
By Friday, January 27, 2006, the infection had spread to plaintiff's elbow. Am. Compl., at 14. On that date, he returned to the medical clinic, where he was examined by Dr. Borges. Id., at 14-16. Dr. Borges discontinued the Keflex. Am. Compl., at 18-19; Pl.'s Dep., at 46; Pl.'s Opp'n, Ex. A, at 13. Plaintiff asserts Dr. Borges explained that Keflex could aggravate a severe skin infection. Am. Compl., at 19-20. Medical records show that Dr. Borges diagnosed plaintiff with cellulitis. Pl.'s Opp'n, Ex. A, at 13-14. He prescribed Vicodin for pain, an immediate injection of an antibiotic, and a course of Clindamycin and Septra. Pl.'s Dep., at 50; Pl.'s Opp'n, Ex. A, at 13-14. He also requested that plaintiff be examined at an outside hospital. Am. Compl., at 20; Pl.'s Opp'n, Ex. A, at 14. At the hospital, a physician noted that plaintiff had moderate pain, swelling and tenderness that was exacerbated by movement and relieved by rest. Pl.'s Opp'n, Ex. A, at 17. Plaintiff's range of motion was limited and the affected area was warm to the touch.
Pl.'s Opp'n, Ex. A, at 18. He diagnosed plaintiff as having cellulitis, and prescribed a five day course of Vicodin, Bactrim DS and an ace bandage. Pl.'s Dep., at 47; Pl.'s Opp'n, Ex. A, at 1-20. A medical record dated January 31, 2006, on which the signature is illegible, notes that plaintiff's right hand still was red and swollen, but plaintiff's condition had improved since January 27.
Pl.'s Opp'n, Ex. A, at 21. The author also noted that plaintiff probably had MRSA in his right hand. Id. On February 7, 2006, a physician found that plaintiff had improved, but still suffered stiffness in his third metacarpal. Id., at 24. He ordered an x-ray. Id. On February 21, 2006, a physician noted that x-rays revealed no abnormalities, and ordered that plaintiff see an orthopedic specialist for his right hand as a result of the cellulitis. Id., at 27.
Around March 1, 2006, plaintiff was transferred to Mule Creek State Prison ("MCSP"), where physical therapists informed him that the infection had caused damage to the ligaments and soft tissue of his right hand ...