The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS [Docket No. 113]
This matter comes before the Court on Defendants' motion to dismiss the Complaint. Plaintiff filed an opposition to the motion, and Defendants filed a reply. For the reasons set out below, the Court denies Defendants' motion.
On October 15, 2001, Gerardo Richard Gallegos, a state prisoner proceeding pro se, filed the original Complaint in this case. That Complaint alleged that Defendants John Parsons, M.D., Charles Pickett, M.D., Sunil Walia, M.D. and James S. Burrell, M.D. were deliberately indifferent to Gallegos's serious medical needs in that they failed to diagnose and treat Plaintiff's stomach cancer. Gallegos also alleged an equal protection claim arising from these same facts.
On April 2, 2002, Gallegos filed a First Amended Complaint with the assistance of pro bono counsel in which he alleged the same claims against the same Defendants.
On April 22, 2002, Defendants Parsons and Pickett filed a motion to dismiss the First Amended Complaint. Defendants Burrell and Walia filed a motion to dismiss the First Amended Complaint on June 3, 2002. On July 18, 2002, the Court denied both motions.
On October 14, 2003, this case was transferred from the calendar of the Honorable Jeffrey T. Miller to the calendar of the Honorable Dana M. Sabraw. On March 4, 2004, Defendants Parsons and Walia filed a motion for summary judgment in which they asserted that Gallegos had failed to satisfy the exhaustion requirement.*fn1 After reviewing the parties briefs and hearing oral argument, the Court granted the motion.
Gallegos appealed that decision to the United States Court of Appeal for the Ninth Circuit. While that appeal was pending, Gallegos died prompting the Ninth Circuit to substitute Gallegos's wife Dora Alvarez Gallegos as the Plaintiff in this case. The Ninth Circuit thereafter reversed this Court's summary judgment ruling and remanded the case for further proceedings. After remand, Defendants filed the present motion to dismiss in which they reallege that Gallegos failed to exhaust his administrative remedies.
Prior to his death, Gallegos was an inmate in the California prison system. (First Am. Compl. at ¶ 4.) At all relevant times, he was incarcerated at Centinela State Prison in Imperial County, California. (Id. at ¶ 5.) Defendant Parsons was employed as the Chief Medical Doctor at Centinela, (id. at ¶ 6), and Defendant Walia was employed as a medical doctor at Centinela. (Id. at ¶ 8.)
In 1996, while Gallegos was incarcerated in Tehachapi State Prison, he began to experience ongoing episodes of weight loss, stomach upset, and severe pain and burning in his abdominal region. (Id. at ¶ 11.) He was seen by prison doctors more than fifteen times for these symptoms. (Id.) On or about August 1, 1996, Gallegos was admitted to the prison infirmary where the doctors performed an upper barium x-ray. (Id.) They diagnosed Gallegos as suffering from an "obstructing sternic lesion," with the primary clinical consideration being an abnormal growth in Gallegos' stomach. (Id.)
In late 1996, Gallegos was admitted to San Joaquin Community Hospital where he was treated by a non-prison doctor, Dr. N. Sarkies. (Id. at ¶ 12.) Dr. Sarkies performed an endoscopy, biopsies and a workup to rule out a malignancy in Gallegos's stomach. (Id.) Dr. Sarkies treated Gallegos for a stomach ulcer and recommended an abdominal CT scan if Gallegos's symptoms reappeared. (Id.)
Gallegos was returned to Tehachapi where he was treated for "multiple deep ulcerations" with a regimen of Prilosec, Pepto-Bismol and antibiotics. (Id. at ¶ 13.) Within weeks, Gallegos's symptoms reappeared. (Id.) On January 7, 1997, he underwent an upper GI barium x-ray, and was told that no abnormal growths were found. (Id.) Despite the persistence of symptoms, the prison doctors did not follow Dr. Sarkies' recommendation that Gallegos have an abdominal CT scan. (Id.)
In October 1997, Gallegos was transferred to a non-medical prison facility in Lancaster, California, where his symptoms continued to increase. (Id. at ¶ 14.) He reported these symptoms to prison doctors, ...