FINDINGS AND RECOMMENDATIONS
Plaintiff is a former state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.*fn1 He proceeds on his August 24, 2010 amended complaint on his claims that defendants Walker, Traquino, Aguilera,*fn2 and Saukhla ("defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment when they denied him medical treatment for his chronic Hepatitis C. Dckt. Nos. 11, 13. Pending before the court is plaintiff's motion for summary judgment. Dckt. Nos. 17, 37. Because plaintiff neither produces evidence of defendants' deliberate indifference nor demonstrates the absence of a genuine issue as to any material fact, the court recommends that plaintiff's motion be denied.
I. Plaintiff's Allegations
Plaintiff claims that each of the defendants was deliberately indifferent to his medical needs when they allegedly denied him treatment for chronic Hepatitis C, despite plaintiff's requests for such care. Plaintiff also alleges defendant Saukhla, his primary care physician, prescribed plaintiff a drug called Depakote, even though Saukhla knew or should have known that the drug would significantly damage plaintiff's liver. According to plaintiff, Saukhla threatened plaintiff with punishment for refusing to take the drug. Plaintiff alleges defendants' acts and/or omissions caused him to experience emotional distress, and damaged his liver and other vital organs.
In his motion for summary judgment, plaintiff advances the following eight purported statements of undisputed fact:
Fact 1: Plaintiff is a 63 year old California prisoner serving a four year term with a maximum release date of July 11, 2013 and an earliest possible release date of August 3, 2011. Plaintiff has an additional three years of parole in which he will be in constructive custody as a California state prisoner. Plaintiff has been in custody as a California prisoner since July 2009 seeking medical treatment for Hepatitis C, and therefore meets the California Department of Corrections and Rehabilitation's ("CDCR") treatment time protocols to be treated for this virus. Dckt. No. 17 at 2.
In support of this statement of fact, plaintiff submits his CDCR "Calculation Worksheet," which is used to calculate the earliest possible release date for inmates sentenced to a determinate term. Id. at 6-7.
Fact 2: Plaintiff is infected with chronic Hepatitis C and has been in the custody and care of CDCR medical staff since July 2009. The medical staff was and is aware of plaintiff's Hepatitis C medical condition, and have denied plaintiff medical treatment for this virus since day one. Id. at 2.
In support of this statement of fact, plaintiff submits a Director's Level decision, dated April 6, 2010, which responds to plaintiff's administrative appeal requesting medical treatment for his Hepatitis C as soon as possible. Id. at 9-10. The decision notes that plaintiff's appeal had been denied at the first and/or second levels of review because (1) "Treatment for Hepatitis C is not given until an inmate arrives at his mainline institution, and [plaintiff] would have to be there for 18 months before treatment will be started;" (2) that "[o]n September 18, 2009, lab work and x-rays were ordered, and [plaintiff] was scheduled for a follow up in 30 days, to determine the appropriate treatment for [his] condition;" and (3) plaintiff was transferred to California Medical Facility on October 28, 2009, before Deuel Vocational Institute could address plaintiff's appeal at the second level of review, and that during a phone interview, plaintiff stated he was awaiting an evaluation with the doctor for the Hepatitis C Program. Id. Plaintiff also submits copies of the first and second level responses to this administrative appeal. Id. at 11-15.
The Director's Level decision, signed by defendant Walker, denied plaintiff's administrative appeal on the grounds that the appeal issues had been appropriately addressed at the lower levels of review, and that plaintiff would continue to be evaluated and treatment would be provided based on plaintiff's clinician's evaluation, diagnosis, and recommended treatment plan. Id. at 10.
Fact 3: In 2002, the National Institute of Health updated its earlier consensus statement on the treatment of Hepatitis C and concluded that all patients with chronic Hepatitis C were candidates for antiviral therapy. It also recommended treatment, particularly for those with an increased risk of developing cirrhosis. Plaintiff has been very sick, is suffering and has continued to seek treatment. Id. at 2.
In support of this statement of fact, plaintiff submits copies of his multiple requests for health care services. Id. at 16-23. In these requests, plaintiff complains that he is sick, has a high fever, is nauseous, has yellow eyes, severe stomach pain, black stool and dark yellow urine. Id. Some nurses' notes appear on the bottom half of the health care request forms. Id. at 16-23.
Fact 4: Dr. Saukhla, as plaintiff's primary care doctor, administered a drug to plaintiff -Depakote - to control plaintiff's seizure disorder, even though he knew or should have known Depakote was very harmful to Hepatitis C patients, with a strong possibility of being deadly. Saukhla also threatened plaintiff when plaintiff refused to continue to take the deathly drug. Id. at 2.
In support of this statement of fact, plaintiff submits the June 10, 2010 first level response to plaintiff's administrative appeal complaining that Depakote is harmful to patients with Hepatitis C and that defendant Saukhla had threatened plaintiff with punishment if his next scheduled blood test proved negative of Depakote. Id. at 25-26. The response noted that plaintiff was on Depakote for seizures, but that plaintiff 's lab results revealed he had not been taking the medication as prescribed. Id. It states that plaintiff admitted he stopped taking Depakote because of independent research he conducted and that plaintiff requested an unbiased investigation into his medical condition. Id. at 26. That request was determined to be unnecessary on the grounds that plaintiff's condition was adequately and carefully monitored by his physician and the lab while plaintiff was confined to California Medical Facility and because plaintiff had been seen several times at the Hepatitis C clinic by another physician who made ...