The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a prisoner proceeding without counsel who paid the filing fee to initiate this civil rights action pursuant to 42 U.S.C. § 1983. The case proceeds on plaintiff's original complaint filed May 31, 2006 (Dkt. No. 1) against defendant physicians Nicholas Aguilera and Joseph Bick for deliberate indifference to plaintiff's medical needs in violation of the Eighth Amendment. (See Dkt. Nos. 40, 44, (dismissing all other named defendants) and Dkt. Nos. 38, 40 (dismissing all other claims).)
Presently pending is defendants' motion for summary judgment filed July 24, 2009. (Dkt. No. 48.) Plaintiff has filed an opposition (Dkt. No. 56) and defendants filed a reply (Dkt. No. 61).
Plaintiff alleges that in November 2002 he was transferred from California State Prison-Corcoran ("CSP-C") to the California Medical Facility ("CMF"). (Complaint ("Compl."), Dkt. No. 1, at ¶ 1.) While at CSP-C, plaintiff, who has Human Immunodeficiency Virus ("HIV"), was diagnosed and treated by an HIV Specialist and received testosterone treatments to combat metabolic dysfunction symptoms associated with plaintiff's HIV and Highly Active Antiretroviral Therapy ("HAART"). (Id. at ¶¶ 1, 2.) Plaintiff describes these symptoms as "deterioration and loss of lean body mass, dramatic changes in body composition, lowered energy levels, general feeling of weakness and tiredness, and the accumulation of visceral fat in the body that impinges upon vital organs [such as] heart, lungs, kidneys, liver, etc." (Id. at ¶ 1.) Plaintiff alleges that his testosterone treatments had provided "significant improvement of his condition." (Id. at ¶ 1.)
The complaint provides that upon plaintiff's arrival at CMF, defendant Aguilera, a CMF physician, discontinued plaintiff's testosterone treatments "without discussion or consultation," and "without a physical examination, measurement for waist-hip ratio, DEXA (Dual Energy X-Ray Absorptiometry), ultra-sound, computed topography, MRI, or any other medically sound means of evaluation." (Id. at ¶ 2.) Moreover, "defendant Aguilera refused to suppliment (sic) plaintiff's treatment with an equally acceptable course of treatment stating to plaintiff in a glib and confrontational tongue, 'You're just fat.'" (Id. at ¶ 3.)
The complaint states that plaintiff's "condition . . . remains untreated to this day, and is continuous in nature. Plaintiff has incurred a 'physical injury' as a result of the interruption and denial of treatment as follows: Painful, progressive deterioration of muscle tissue, and dehabilitating (sic) accumulation of visceral fat threatening vital organ function as well as malaise and compromised quality of life that is associated with this type of metabolic disfunction (sic)." (Id. at ¶ 4.)
The complaint further alleges that "when questioned by plaintiff, defendant Aguilera voiced that [defendant] Dr. Bick [CMF Chief Medical Officer and Aguilera's supervisor] informed him that budget constraints prevent treatment for this condition." (Id. at ¶ 2.) The complaint alleges that Bick "acquiesced" in Aguilera's decision and "failed and/or refused to terminate the series of acts which led to plaintiff's present state of deterioration." (Id. at ¶ 5.)
The instant motion seeks summary judgment on the entirety of plaintiff's complaint. Plaintiff generally opposes the motion, seeking to "suspend or vacate" it, on the ground that defendants' evidence submitted in support of their motion includes a previously undisclosed and critical fact that changes the substance of this action. For the following reasons, this court finds plaintiff's argument persuasive.
At issue is the declaration of CMF physician Dr. U. Pai. (See July 23, 2009 Declaration of U. Pai in Support of Motion for Summary Judgment, Dkt. No. 48-7; resubmitted by plaintiff in his Opposition, Dkt. No. 56, at 5-7 (hereafter "Pai Decl.").) Dr. Pai states in pertinent part that she treated plaintiff for HIV and related illnesses between November 2002 and May 2003. (Pai Decl. at ¶ 5.)*fn1 Based upon a two-year-old lab report in plaintiff's medical records, dated November 21, 2000, which showed a total testosterone level of 1,965 nanograms per deciliter ("ng/dl") (in excess of the normal range of 241 to 850 ng/dl), Dr. Pai "determined that [plaintiff's] testosterone treatments were not medically necessary [and] therefore decided not to continue the testosterone treatment, and monitor the issue." (Pai Decl. at ¶ 12.) Dr. Pai states that her decision was consistent with CDCR policy authorizing only medically-indicated treatments (id. at ¶¶ 6, 10, 11), "[t]his was discussed with the patient," and "[d]uring the period of my medical care of Jaspar, he never repeated any request for testosterone supplements" (id. at ¶¶ 12, 13.)
Dr. Pai is not referenced in plaintiff's complaint yet, according to Dr. Pai's declaration, she was the first of plaintiff's medical providers at CMF and the one to make the critical medical decision that is at the heart of plaintiff's action. In contrast, defendant Bick states he treated plaintiff "on March 13, 2003, June 16, 2003, and December 8, 2003" (Bick Decl. at ¶ 15), while defendant Aguilera states that he treated plaintiff "between May 2003 and June 2007.
Plaintiff contends that defendants have now "produced medical records which indicate that a Dr. Pai discontinued plaintiff's medications against specialist orders." (Opposition ("Oppos."), Dkt. No. 56, at 2.) Plaintiff asserts, "defendants have deceived plaintiff to believe that Dr. Aguilera discontinued his specialists prescribed course of medical treatment; the medical records which indicated, to the contrary, that Dr. Pai discontinued the treatment was factually omitted from his reach until the time of defendants' motion. Concealing these facts, although Aguilera informed plaintiff that Dr. Bick told him to discontinue plaintiff's treatment due to budgetary constraints . . . [and] concealing ...