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Michael Chess v. J. Dovey

February 14, 2011



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary judgment brought, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on behalf of defendants Abdur-Rahman, David, Dial, Dudley, French, James, Miller and Roche. (Defs.' Mem. of P. & A. (Doc. No. 90-1.) Plaintiff has filed an opposition, (Doc. No. 96) and defendants have filed a reply. (Doc. No. 99.)

For the reasons set forth below, the court recommends that defendants' motion for summary judgment be granted in part and denied in part.


Plaintiff is proceeding on his original complaint (Doc. No. 1) against defendants Abdur-Rahman, David, Dial, Dudley, French, James, Miller and Roche.*fn1 Therein, plaintiff alleges as follows. Plaintiff is suffering from several serious medical conditions including, but not limited to, liver disease in the form of hepatitis C, Type I diabetes, Scoliosis, degenerative disc disease, gallstones, the loss of vision in his left eye, a Varicocele in his left testicle, seizures and an enlarged spleen. As a result of his serious medical conditions plaintiff suffers painful cramps in his lower extremities, abdominal pain, uncontrolled muscle twitching, headaches, skin rashes, loss of balance, and constant pain. To treat his pain plaintiff requires pain medication that is effective and will not damage his liver. Moreover, as a result of his serious medical conditions plaintiff has an increased risk of infection, amputation, stroke, heart disease, and cancer. Plaintiff is also over fifty years old and has high triglyceride levels. He therefore requires a special diet prepared by a medically trained dietitian to treat his diabetes and to lower his triglyceride levels. (Compl. (Doc. No. 1) at 4-5.)*fn2

From 1997 to 2000, plaintiff was incarcerated at Duel Vocational Institution. At that time plaintiff was not diabetic and was suffering only intermittent pain in his back and eye, even though he had suffered a neck injury. In 2000, he was transferred to California State Prison, Corcoran where he was diagnosed with liver disease, a Variocele in his left testicle, back pain and neck pain. Plaintiff was prescribed pain medication to treat his resulting pain. In 2003, plaintiff was again transferred, this time to California State Prison, Solano ("CSP-Solano"). During his time at CSP-Solano plaintiff suffered two seizures, both of which resulted in injury to his head, neck and upper body. Plaintiff was diagnosed as suffering from degenerative disc disease, gallstones and seizures. After trying several different medications it was determined that the only effective medication for the treatment of plaintiff's seizures was Kolonopin and the only effective medication for the treatment of his chronic pain was Methadone. During his time at CSP-Solano, plaintiff's glucose levels were normal.

On November 21, 2006, plaintiff was transferred to High Desert State Prison ("HDSP") and placed in the Correctional Treatment Center. He spoke with defendant Dr. Dial who informed plaintiff that due to his numerous medical problems he would be transferred to the California Medical Facility, Vacaville ("CMF-Vacaville"). Plaintiff was then housed in the HDSP psychiatric ward, where he was forced to sleep in a cold cell, in only his underwear, and without a blanket. After a few days and several requests, plaintiff was given a paint stained wool blanket that caused him to break out in a rash. Plaintiff showed his rash to a nurse and was told that "it happens to all of us." (Id. at 7-8.)

At some point in time defendant Dr. Dial assigned defendant Miller, a nurse practitioner, to treat plaintiff. Defendant Miller also informed plaintiff that due to his numerous medical problems he would be transferred to CMF-Vacaville. A week later defendant Miller informed plaintiff that HDSP staff had informed Miller that plaintiff would not be transferred to CMF-Vacaville. Thereafter, plaintiff was tapered off of Klonopin and Methadone. Plaintiff requested to speak with a doctor trained to treat patients suffering from chronic pain but his request was denied. As a result of being tapered off Methadone plaintiff suffered withdrawal symptoms. Moreover, all of plaintiff's medical conditions worsened after he was taken off of Klonopin and Methadone. (Id. at 8-10.)

For two weeks plaintiff's requests for pain medication, to see a doctor and to see defendant Miller were denied. Finally defendant Miller saw plaintiff in his cell and ordered pain medication for him. Defendant Miller did not, however, tell plaintiff what medication she had ordered. Defendant Miller prescribed plaintiff over-the-counter pain medications such as Tylenol, Ibuprofen, and Naprosyn that were not effective in treating his pain and which were harmful to his liver. Defendant Miller also prescribed plaintiff niacin. Plaintiff is allergic to niacin and broke out in a rash on his ankles, legs, stomach and neck that developed into blisters that broke, became infected and left permanent scars. Plaintiff's repeated requests to see a doctor for his pain and to receive Methadone were denied. (Id. at 10-11.)

On December 14, 2006, plaintiff was seen for complaints of eye pain. Plaintiff was diagnosed as being blind in his left eye and was prescribed eye drops. That evening and the following day he was told that defendant Miller had ordered that his eye drops be given to another inmate who she believed needed the medication more than plaintiff. Plaintiff asked to speak to defendant Miller but his requests were denied. (Id. at 11-12.)

Plaintiff also claims that all the defendants were aware of his elevated liver enzymes and liver disease. Plaintiff asked each defendant for treatment of his liver disease, including a liver biopsy and Interferon treatment, but those requests were denied. Plaintiff also asked each defendant for medication that was effective in treating his pain and not harmful to his liver, but those requests were denied. Finally, plaintiff claims that he made requests to each defendant for a medical diet to lower his triglycerides, blood sugar and improve his health, and that those requests were also denied. (Id. at 13-14, 17, 19-20, 28-29, 40.)

Plaintiff claims that the defendants have denied him adequate medical care in violation of the Eighth Amendment and seeks compensatory and punitive damages. (Id. at 102.)


On August 5, 2008, the court ordered the United States Marshal to serve plaintiff's complaint on defendants Abdur-Rahman, David, Dial, Dudley, French, James, Miller and Roche. (Doc. No. 16.) Defendants Abdur-Rahman, Miller, James, Roche and French filed a motion to dismiss on October 3, 2008, arguing that plaintiff failed to satisfy the "short and plain statement" requirement under Federal Rule of Civil Procedure 8(a) demonstrating that he is entitled to relief and that plaintiff's injunctive relief claims were subsumed under the Plata v.Schwarzenegger class action lawsuit. (Doc. No 24.) Defendant David, and defendants Dial and Dudley joined in the motion to dismiss on February 4, 2009, and June 5, 2009, respectively. (Doc. Nos. 32, 42.) On September 1, 2009, defendants motion to dismiss was granted with respect to plaintiff's claims for injunctive relief but denied in all other respects. (Doc. No. 54.) Defendants Abdur-Rahman, David, Dial, Dudley, French, James, Miller and Roche filed an answer on December 8, 2009. (Doc. No. 62.) On December 15, 2009, the undersigned issued a discovery order. (Doc. No. 63.)

On August 4, 2010, counsel for defendants filed a motion for summary judgment, arguing that the defendants were entitled to entry of judgment in their favor because: (1) there is no evidence that they were deliberately indifferent to plaintiff's serious medical needs; and (2) they are entitled to qualified immunity. (Doc. No. 90.) Plaintiff filed an opposition to defendants' motion for summary judgment on September 27, 2010. (Doc. No. 96.) Defendants filed a reply on October 11, 2010. (Doc. No. 99.)


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 (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. "[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.

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 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 (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 587 (citation omitted).


I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. The Eighth Amendment and Inadequate Medical Care

The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Where a prisoner's Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

If a prisoner establishes the existence of a serious medical need, he must then show that prison officials responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights."); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires 'more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).

Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, "[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060. Finally, mere differences of opinion between a prisoner and prison medical staff or between medical professionals as to the proper course of treatment for a medical condition do not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

III. Qualified Immunity "Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions for the court are (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a statutory or constitutional right and (2) whether the right at issue was "clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001).

Although the court was once required to answer these questions in order, the United States Supreme Court has recently held that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808, 818 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity at that point without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 129 S. Ct. at 818-21.

In deciding whether the plaintiff's rights were clearly established, "[t]he proper inquiry focuses on whether 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted' . . . or whether the state of the law [at the relevant time] gave 'fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202). The inquiry must be undertaken in light of the specific context of the particular case. Saucier, 533 U.S. at 201. Because qualified immunity is an affirmative defense, the burden of proof initially lies with the official asserting the defense. Harlow, 457 U.S. at 812; Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992); Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1989).


Defendants statement of undisputed facts is supported by citations to copies of plaintiff's medical records, health care services request forms and deposition testimony.

I. Defendants' Statement of Undisputed Facts and Evidence

The evidence submitted by the defendants establishes the following facts. On November 21, 2006, plaintiff was transferred from CSP-Solano to HDSP. On November 22, 2006, defendant Dr. Dial examined plaintiff, noted his medical history, and evaluated his medications. Prior to his arrival at HDSP plaintiff had been prescribed Methadone, Klonopin, thiamine, niacin and aspirin.*fn3 Defendant Dial admitted plaintiff to the Correctional Treatment Center ("CTC") on November 22, 2006, for in-patient care and monitoring while plaintiff's medications were adjusted to comply with the policies of HDSP, specifically the policy that Methadone was not provided to patients in general population, where plaintiff was to be housed.

Defendant Dial prescribed plaintiff Naprosyn/Narpoxen and aspirin to treat his pain.*fn4 Also on November 22, 2006, defendant nurse practitioner Miller examined plaintiff, took his medical history and proceeded to implement defendant Dr. Dial's orders. On November 28, 2006, defendant Miller reviewed plaintiff's medical chart dating back to 2004 and obtained special approval to obtain Clonazepam/Klonopin for plaintiff pursuant to defendant Dr. Dial's order. (Defs.' SUDF (Doc. No. 91) 1-8.)*fn5

On December 3, 2006, defendant Dr. James ordered that plaintiff be tapered off of Klonopin. Defendant Dr. James did not alter plaintiff's prescription for Naprosyn/Naproxen that was previously prescribed by defendant Dr. Dial. On December 4, 2006, plaintiff complained of a skin condition and defendant nurse practitioner Miller prescribed him Hydrocortisone cream. On December 6, 2006, defendant Miller discontinued plaintiff's prescriptions for thiamine, niacin, Hydroxyzine and Hydrocortisone cream at plaintiff's request. Defendant Miller also referred plaintiff to an ophthalmologist to address his eye issues, requested a CT scan to address his liver and gall bladder conditions, and referred plaintiff for a psychiatric evaluation to address possible paranoia and manipulative behavior.*fn6 (Defs.' SUDF (Doc. No. 91) 9-14.)

On December 8, 2006, defendant Miller again saw plaintiff and noted that plaintiff was angry and was demanding to see a medical doctor instead of a nurse practitioner. Defendant Miller also noted that plaintiff's history of seizures was undocumented, was based entirely on plaintiff's subjective reports, and that the results of an October 2005 CT scan of plaintiff's head were normal. Defendant Miller continued to taper plaintiff off of Klonopin and continued plaintiff's previous prescription for Naprosyn/Naproxen.*fn7 Defendant Miller again saw plaintiff on December 11, 2006, noted that he was still angry about not seeing a medical doctor and was also angry that he had stopped receiving Methadone. Plaintiff claimed that Methadone was "best for his liver." Defendant Miller advised plaintiff that treatment of his liver and eye were being addressed by the pending requests for blood tests, a CT scan and an ophthalmology consultation. (Defs.' SUDF (Doc. No. 91) 15-19.)

On December 14, 2006, plaintiff had an ophthalmology consultation and it was determined that no prescription was necessary to address his eye issues. The following day plaintiff complained of a headache and requested a multivitamin without iron for his hepatitis C. Defendant Miller submitted a request for a special multivitamin without iron and increased plaintiff's previously prescribed aspirin from 80mg to 325mg to treat his headache. Defendant Miller also referred plaintiff to optometry in response to his complaint that his reading glasses were no longer effective. On December 18, 2006, defendant Miller extended plaintiff's prescription for 325mg aspirin for two more weeks in response to plaintiff's complaint of ...

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