The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he received inadequate medical care in violation of the Eighth Amendment and state law.
Pending before the court is defendants' summary judgment motion filed December 18, 2009. (Dkt. No. 45.) On March 23, 2010, plaintiff filed his opposition. (Dkt. No. 53.) On June 3, 2010, defendants were ordered to file either a statement that they intended to stand on the pending summary judgment motion or a supplemental summary judgment motion. (Dkt. No. 54.) On July 26, 2010, defendants filed a supplemental summary judgment motion. (Dkt. No. 57.) On August 19, 2010, plaintiff filed an opposition to the supplemental motion. (Dkt. No. 59.)
After carefully considering the record, the undersigned recommends that defendants' summary judgment motions be granted in part and denied in part.
II. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to 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 (1986). "[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. (quoting Fed. R. Civ. P. 56(c). 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. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. 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.
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 (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. 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 (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 630. 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 (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. 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 586 (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 (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 (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 (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');">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 (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. 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. 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.
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 838-42. "[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. 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. "[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. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42. 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, 1339-40 (9th Cir. 1990), and Hudson, 503 U.S. at 4-6. 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.
Superimposed on these Eighth Amendment standards is the fact that in cases involving complex medical issues where plaintiff contests the type of treatment he received, expert opinion will almost always be necessary to establish the necessary level of deliberate indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the treatment he received equated with deliberate indifference thereby creating a material issue of fact, summary judgment should be entered for defendants. The dispositive question on this summary judgment motion is ultimately not what was the most appropriate course of treatment for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, criminally reckless.
This case is proceeding on the first amended complaint filed October 20, 2008 against defendants Dr. Cardeno, Dr. Dazo and Dr. Lee. (Dkt. No. 37-2.) At all relevant times, plaintiff and defendants were located at Folsom State Prison ("Folsom"). Plaintiff alleges that defendants violated his Eighth Amendment right to adequate medical care. Plaintiff also alleges a violation of state law. Plaintiff seeks money damages and injunctive relief. The gravamen of this action is plaintiff's claim that defendants failed to provide him with adequate medical care following his July 2005 thyroidectomy which he received while housed at California State Prison-Corcoran.
Defendants do not dispute that plaintiff received this surgery, but contend that following his transfer to Folsom in September 2005 he received adequate medical care.
Plaintiff's Allegations Plaintiff's claims against defendant Cardeno can be broken down into the following five categories.
First, plaintiff alleges that defendant Cardeno failed to provide adequate oncological treatment including I-131 Metastasis Scans and I-131 Radiation Ablation Therapy following his surgery. In support of this claim, plaintiff alleges that following his July 25, 2005 thyroidectomy Dr. Schuster, who performed the surgery, told plaintiff that he had thyroid cancer and that he needed further testing to determine whether it had spread. (Dkt. 37-2, p. 7.) Attached to the amended complaint as Exhibit C is an entry in plaintiff's medical records by Dr. Schuster dated July 25, 2005. In this entry, Dr. Schuster wrote that the plan was for plaintiff to have an oncology consultation.
Apparently the further testing was not performed prior to plaintiff's transfer to Folsom in September 2005. Plaintiff alleges that he saw defendant Cardeno four times following his arrival at Folsom. (Id., p. 8.) Plaintiff told defendant Cardeno of his desire for oncology treatment and also that he suffered symptoms that he believed were the results of levothyroxine, a thyroid hormone replacement medication. (Id.) Plaintiff alleges that defendant Cardeno did not order further oncological testing. (Id.)
Plaintiff alleges that he finally was seen for an oncology consultation at the U.C. Davis Medical Center on July 25, 2006. (Id., p. 13.) At that time, Dr. Rubin ordered two rounds of blood work and that plaintiff's thyroid medication to be suspended for thirty days. (Id.) When plaintiff returned to U.C. Davis for a follow-up visit, the blood work results had not been sent with plaintiff. (Id.) When Dr. Rubin spoke with defendant Lee regarding the missing blood work, defendant Lee told him that it could not be located. Dr. Rubin then re-issued his order for the blood work. (Id.)
Plaintiff alleges that defendant Cardeno, as the Chief Medical Officer, "failed to ensure and provide what was necessary to make these appointments to U.C. Davis Medical Center a part of plaintiff's effective, proper and necessary health care." (Id., p. 14.
In his second claim, plaintiff alleges that defendant Cardeno did not ensure that plaintiff had a consistent primary care physician as a result of which plaintiff received inadequate medical care. In support of this claim, plaintiff alleges that in July 2006 he was seen by Dr. Bal at Folsom for a medical return evaluation. (Id., p. 14.) Plaintiff told Dr. Bal that he believed that his treatment by different doctors caused his missing blood work. (Id.) Dr. Bal told plaintiff that she was aware of the problem and would now become his primary care physician. (Id.) However, at plaintiff's next appointment Dr. Bal told plaintiff that she had to take a leave of absence and that he would be seen by Dr. Dunlap. (Id.) Plaintiff alleges that defendant Cardeno violated his Eighth Amendment rights by refusing to designate a specific physician to oversee plaintiff's care. (Id., p. 15.)
In his third claim, plaintiff alleges that defendant Cardeno did not ensure that he received a low iodine diet. In support of this claim, plaintiff alleges that on October 13, 2006, he was seen by Dr. Prescott at the U.C. Davis Medical Center. (Id., p. 17.) Dr. Prescott allegedly determined that plaintiff's symptoms (severe dry and itchy skin, fatigue, tiredness, acne, weight gain, diminished ability to focus, high blood pressure) were the result of hypothyroidism. (Id.) Dr. Prescott recommended that plaintiff receive a I-131 Metastasis Scan and I-131 Radiation Ablation Therapy as soon as possible. (Id.) Dr. Prescott told plaintiff that following almost all thyroidectomies, there was substantial thyroid tissue remaining. (Id.) Dr. Prescott stated that the proper treatment for this condition was radiation therapy, because plaintiff had thyroid cancer. (Id.) Dr. Prescott then forwarded these instructions to the staff at Folsom, including an order that plaintiff receive a low iodine diet before the scan and ablation therapy. (Id.)
Plaintiff alleges that when he returned to Folsom, he was seen by Dr. Dunlap who told him that his requests to the prison dietician, associate warden and others for plaintiff to have a low iodine diet had been unsuccessful. (Id., p. 18.) He gave plaintiff a copy of the low iodine diet guideline summary sheet and told him to do the best he could with that information. (Id., p. 18.) Plaintiff alleges that defendant Cardeno had the authority to order the low iodine diet but failed to do so. (Id., p. 19.)
Plaintiff also alleges that on August 3, 2007, he saw his new primary care physician at Folsom, Dr. Reddy. (Id., p. 22.) Plaintiff told Dr. Reddy that Dr. Prescott had told him that he should have a low iodine diet before his next round of radiation and scans and ablation therapy. (Id.) Dr. Reddy told plaintiff that she would look into it. (Id.) On September 5, 2007, plaintiff again saw Dr. Reddy who told him that defendant Cardeno had told her that no low iodine diet would be provided. (Id., p. 23.) On September 10, 2007, plaintiff saw Dr. Prescott at the U.C. Davis Medical Center. (Id., p. 23.) Dr. Prescott told plaintiff that the I131 scan and ablation therapy would be ineffective without the low iodine diet. (Id.)
In November 2007, plaintiff was seen by Dr. Reddy who informed plaintiff that he would be transferred to California State Prison-Sacramento for two weeks before the I131 scan and ablation therapy so that he could receive the low iodine diet. (Id., p. 24.)
In his fourth claim, plaintiff alleges that defendant Cardeno was responsible for allegedly unconstitutional housing conditions during his stay in the Outpatient Housing Unit ("OHU"). In support of this claim, plaintiff alleges that on January 14, 2008, plaintiff was transferred to the OHU at California State Prison-Sacramento to undergo the radiation and ablation therapy. (Id., p. 24.) Plaintiff was housed in this unit until February 17, 2008. Id. During that time he was required to be isolated in order to prevent him from contaminating other people. (Id.)
In his fifth claim against defendant Cardeno, plaintiff alleges that defendant was responsible for his placement in a cell infested with bed bugs. In support of this claim plaintiff alleges that upon his return to Folsom on December 11, 2006, after undergoing radiation ablation therapy at California State ...