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Rogelio Hamilton Rangel v. Athanassious

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 20, 2011

ROGELIO HAMILTON RANGEL, PLAINTIFF,
v.
ATHANASSIOUS, ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding with counsel in a civil rights action brought under 42 U.S.C. § 1983. This action proceeds on plaintiff's March 3, 2011 Fourth Amended Complaint, which alleges Eighth Amendment claims against defendants Athanassious, Andreason and Bick ("defendants"), based on their alleged failure to treat or remove plaintiff's enlarged and/or cancerous prostate. Defendants move for summary judgment. Plaintiff opposes the motion and defendants have filed a reply. The hearing on defendants' motion is currently set for October 26, 2011. Because the undersigned has determined that oral argument will not materially assist in resolving the motion, the October 26 hearing is vacated pursuant to Local Rule 230(g). Additionally, for the reasons stated below, the undersigned recommends that the motion be granted.

I. Background

Unless otherwise noted, the court finds that the following facts are not disputed by the parties or following the court's review of the evidence submitted, have been determined to be undisputed.

On March 18, 1999, Dr. Wang took a needle biopsy of plaintiff's prostate. Defs.' Mot. for Summ. J. ("Defs.' MSJ"), Athanassious Dep. ("Athanassious Dep."), Exs. 1, 3; Pl.'s Opp'n, Stmt. of Genuine Issues in Supp. Thereof ("Pl.'s Stmt.") 1-5 (citing Athanassious Dep., Exs. 1, 2). The parties agree the pathology report indicated no cancer. Defs.' MSJ, Mem. of P. & A. in Supp. Thereof ("Defs.' P. & A.") at 9; Pl.'s Opp'n, Mem. of P. & A. in Supp. Thereof ("Pl.'s P. & A.") at 1.

On July 31, 2001, plaintiff consented to defendant Dr. Athanassious performing a cystoscopy and another needle biopsy of plaintiff's prostate. Athanassious Dep., Ex. 10;Pl.'s Stmt. 1-5 (citing Athanassious Dep., Ex. 10). The parties agree that the cystoscopy and needle biopsy indicated no cancer. Defs.' P. & A. at 9; Athanassious Dep. at 155:7-8, Exs. 12, 13; Pl.'s P & A. at 1.

At some point in time, plaintiff was provided with a Foley catheter. See Athanassious Dep., Ex. 14; Defs.' MSJ, Stmt. of Undisp. Facts in Supp. Thereof ("Defs.' Stmt.") 1-3; Pl.'s Stmt. 1-3.A Foley catheter, by itself, can be an adequate medical treatment for an enlarged prostate, but sometimes it is only a temporary treatment that is used until a procedure such as a transurethral resection of the prostate, also known as a "TURP," is performed. Defs.' MSJ, Bick Dep. ("Bick Dep.") at 176:9-177:1; see also Defs.' Stmt. 1-3; Pl.'s Stmt. 1-3. The treatment for urinary retention varies if the patient also has prostate cancer. Athanassious Dep., Ex. 45. A TURP is not a treatment for cancer. Bick Dep. at 52:15-17. Performing a TURP on someone with prostate cancer could cause the disease to spread. Bick Dep. at 111:19-112:6.

On two occasions before August 17, 2001, plaintiff tried to have his Foley catheter removed, but in each instance, the catheter had to be reinserted because plaintiff was retaining urine. Athanassious Dep., Ex. 14; Defs.' Stmt. 1-4; Pl.'s Stmt. 1-4.

By August 17, 2001, plaintiff had been prescribed progressively increasing doses of an alpha blocker, terazosin, to treat what Dr. Mehta had noted was not cancer, but rather, prostatic hypertrophy. Athanassious Dep., Ex. 14; Defs.' Stmt. 1-2; Pl.'s Stmt. 1-2. Terazosin relaxes the capsule of the prostate gland, with the goal of opening the urethra and relieving the patient's inability to urinate. Pl.'s Stmt. 1-2. An alpha blocker such as terazosin may be used instead of a prostatectomy or a TURP, to relieve one's inability to urinate. Id.

On January 2, 2002, Dr. Athanassious performed another cystoscopy on plaintiff, which indicated plaintiff had "retention of urine secondary to benign prostatic hypertrophy." Athanassious Dep., Ex. 17, 18; Pl.'s Stmt. 1-5 (citing Bick Dep., Ex. 17). At his deposition, Dr. Athanassious testified that several days after this cystoscopy, he explained to plaintiff that plaintiff's prostate gland prevented him from urinating, and plaintiff agreed to have his prostate gland removed. Athanassious Dep. at 53:16-54:14. Medical records from that time period, however, reflect that plaintiff agreed and was scheduled instead, for a TURP. Bick Dep., Exs. 15, 18-2, 19, 20, 21, 22, 24, 26; Pl.'s P. & A. at 2. Dr. Athanassious testified at his deposition that he arranged for plaintiff's admission to the prison hospital and put him on the operating room list. Athanassious Dep. at 58:5-7. Dr. Athanassious further testified that plaintiff did not show up for his scheduled surgery. Id. at 54:22-23, 55:3, 57:1-2, 58:7, 63:21; Pl.'s Stmt. 3-3. A January 14, 2002 medical record includes the following notation:

Utilization MGT- CMF

Discussed proposed TURP (per Dr. Athanassious) [with] Dr. Andreason, CMOCMF this date. Procedure approved. Dr. Andreason desires to discuss case w/ Dr. Athanassious. Dr. Andreason stated will try to go over case tomorrow, 1/15/02.

Bick Dep., Ex. 27. According to defendants, this notation shows that the Utilization Management Committee denied the TURP. Defs.' Stmt. 3-3. According to plaintiff, this notation shows that defendant Dr. Andreason denied the TURP. Pl.'s Stmt. 3-3. Dr. Athanassious testified that a treating physician's request for surgery must be approved first by a Chief Medical Officer, then by the Utilization Management Committee, before the patient is placed on the operating room list. Id. According to Dr. Athanassious, the Chief Medical Officer did not approve plaintiff's TURP. Id.

Defendants Dr. Andreason and Dr. Bick, as chief medical officers, were not treating physicians and did not personally participate in plaintiff's daily care or treatment. Defs.' Stmt. 3-2. They did, however, have access to plaintiff's medical file, and could grant or deny a treating physician's request for a TURP. Pl.'s Stmt. 3-2.

Two weeks after the TURP was denied, Dr. Athanassious ordered a repeat bone scan for plaintiff. Athanassious Dep. at 70:11-14, Ex. 21. Plaintiff had a bone scan in July 2001, but Dr. Athanassious testified he wanted to rule out any possibility of cancer. Id. at 71:2-4. The Chief Medical Officer approved the scan and plaintiff attended it willingly on January 28, 2002. Id. at 71:5-7, 71:20-24; Pl.'s Stmt. 1-5.

On April 11, 2002, plaintiff filed an administrative appeal stating he had cancer, and requesting that he "be given effective treatment through surgery or radiation to eliminate the occasional and necessary insertion of a Foley catheter . . . ." Bick Dep., Ex 30-2. In his May 6, 2002 denial of the appeal, Dr. Bick acknowledged plaintiff's request, but denied it, noting plaintiff's recent "negative biopsy," "stable PSA," and upcoming appointment with Dr. Richman, an oncologist. Id., Ex. 30-1.

When Dr. Bick reviewed the administrative appeal at his deposition, he did not remember having any questions or concerns about a TURP at that time. Id. at 82:22-24. Dr. Bick testified that when he denied plaintiff's appeal, he did not know that the TURP proposed by Dr. Athanassious had been disapproved. Id. at 86:7-12. Dr. Bick also testified he did not communicate to plaintiff how plaintiff could get his Foley catheter removed or relieve his urine blockage even if he did not have cancer. Id. at 83:7-14.

On August 20, 2002, Dr. Bick sent a request by Dr. Richman for a TURP for plaintiff to "utilization review."*fn1 Id. at 109:1-23, Ex. 32. On September 24, 2002, Dr. Bick forwarded another request, again by Dr. Richman, "to get rid of the Foley." Id. at 112:8-22, Ex. 35. Dr. Bick forwarded Dr. Richman's third request for a TURP for plaintiff on January 7, 2003. Id. at 115:5-13, Ex. 36. Dr. Bick testified that when he signed off on Dr. Richman's third request, it probably did not register to him that the same clinician was requesting the same procedure for the same patient, and he did not recall conferring with Dr. Richman about the requests. Id. at 118:3-20. Dr. Bick also testified that he does not think he has ever had a conversation with plaintiff and does not know whether plaintiff ever received a TURP. Id. at 173:19, 120:20.

A February 3, 2003 medical record indicates that plaintiff refused the TURP that Dr. Richman had requested on January 7, 2003.*fn2 Athanassious Dep., Ex. 25. In another medical record dated February 3, 2003, medical technical assistant Felix noted that plaintiff refused to have "prostate surgery to remove prostate gland or TURP." Id., Ex. 46. Dr. Athanassious also testified that plaintiff came to the clinic on February 3, 2003 but refused to have a TURP. Id. at 80:10.

Thereafter, plaintiff continued to refuse medical tests and procedures related to his prostate condition. Defs.' Stmt. 1-5; Defs.' P. & A. at 6; Pl.'s P. & A. at 4. On June 2, 2003, a medical technical assistant noted that plaintiff refused to have "prostate surgery and biopsy," including a "TURP." Athanassious Dep., Exs. 47, 48. On July 28, 2003, a medical technical assistant noted that plaintiff refused a "cysto and needle biopsy of the prostate." Id., Ex. 49. On November 21, 2003, plaintiff apparently refused prostate surgery because he did "not want prostate surgery done at CMF." Id., Ex. 50. On March 2, 2004, medical technical assistant Huliganga noted that plaintiff refused a "transrectal ultrasound of the prostate and ultrasound guided prostate biopsy" offered by Dr. Masters of the University of California, San Francisco ("UCSF"). Id., Ex. 51. On August 5, 2005, a medical technical assistant noted that plaintiff again refused a "prostate biopsy" at UCSF. Id., Ex. 52. On May 26, 2006, a medical technical assistant noted plaintiff refused unspecified prostate treatment because he "wanted to be seen regarding [his] prostate" at UCSF. Id., Ex. 53. On December 1, 2006, a medical technical assistant noted plaintiff refused a "biopsy of prostate." Id., Ex. 54. On March 9, 2007, it is noted that plaintiff refused a "current biopsy." Id.., Ex. 82. On March 23, 2007, medical technical assistant Reed noted plaintiff refused a prostate biopsy. Id., Ex. 83. On April 19, 2007, it is noted that plaintiff refused a "cystoscopy with needle prostate biopsy by Dr. Athanassious."*fn3 Id., Ex. 84.

A December 16, 2009, medical report by Dr. Khaira states that plaintiff "insists . . . he has prostate cancer presently but to my knowledge there is no evidence of that being diagnosed or treated," as plaintiff has "previously undergone evaluation for prostate cancer, which was negative." Id., Ex. 80-1; see also Pl.'s Stmt. 1-5 (citing Athanassious Dep., Ex. 80).

A June 4, 2010 medical report by Dr. Khaira found that plaintiff had "chronic urinary retention" and "benign prostatic hypertrophy." Athanassious Dep., Ex. 82-1.

To the best of defendants' knowledge, plaintiff has never had cancer. Defs.' Stmt. 1-1.

II. Summary Judgment Standards

Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions 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). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (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.'"). 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. In such a circumstance, summary judgment must 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.

To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law, id., which here involves an Eighth Amendment claim that the defendants failed to treat or remove plaintiff's enlarged and/or cancerous prostate. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.

Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand,"[w]here 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). In that case, the court must grant summary judgment.

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.'" Id. If the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue. Celotex., 477 U.S. at 323. Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.

III. Legal Standard for Eighth Amendment Claim Pursuant to 42 U.S.C. § 1983

Under 42 U.S.C. § 1983, plaintiff must show: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the alleged rights deprivation, as there is no respondeat superior liability under section 1983. Jones, 297 F.3d at 934. That is, plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. To be held liable, "the supervisor need not be directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury." Starr v. Baca, __ F.3d __, 2011 U.S. App. LEXIS 15283, at *6 (9th Cir. 2011) (quotations omitted). Rather, the supervisor's participation and resulting liability could be based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by others. Id.

To state a section 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 defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that significantly affects an individual's daily activities, an injury or condition a reasonable doctor or patient would find worthy of comment or treatment, or the existence of chronic and substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc).

Deliberate indifference may be shown by the denial, delay or intentional interference with medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison 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. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 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. 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. However, it is important to differentiate common law negligence claims of malpractice from claims predicated on violations of the Eight Amendment's prohibition of cruel and unusual punishment. In asserting the latter, "[m]ere '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. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). It is well established 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, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

IV. Discussion

Defendants contend they are entitled to judgment as a matter of law. They rely on objective evidence showing that plaintiff has received extensive medical care and treatment for all of his health conditions, and contend that plaintiff lacks evidence to establish they were deliberately indifferent to his medical needs or that he suffered any injury or harm as a result of the alleged conduct.*fn4 Defs.' P. & A. at 7. Indeed, as discussed below, the court finds that there simply is no evidence to establish a genuine issue of fact as to whether any defendant acted with the requisite deliberate indifference for an Eighth Amendment claim. Viewing the evidence in the light most favorable to plaintiff as the non-moving party, the undersigned finds that no reasonable juror could conclude that any of the defendants knew of and disregarded an excessive risk to plaintiff's health.

Plaintiff has an enlarged prostate, but to the best of defendants' knowledge, he does not have cancer. Defs.' Stmt. 1-1, 1-2. It is apparent from the medical records that plaintiff has disagreed with the medical findings in that regard, but his quarrel is with the medical diagnosis and prescribed manner of treatment and not with whether defendants were deliberately indifferent to his medical needs. As for plaintiff's treatment, as chief medical officers, neither Dr. Bick nor Dr. Andreason personally participated in plaintiff's daily care or treatment. Id. at 3-2. However, the medical records show plaintiff was prescribed terazosin and was given a Foley catheter for his enlarged prostate. Id. at 1-2, 1-3. On several occasions, defendants tried to make plaintiff more comfortable by removing the catheter. Id. at 1-4. However, plaintiff experienced complications both times the catheter was removed, requiring that it be reinserted. Id. From 2003 through 2007, plaintiff repeatedly refused to accept care and treatment or further diagnostic testing for his prostate condition. Id. at 1-5; Defs.' P. & A. at 6. The treatment for urinary retention varies if the patient also has prostate cancer and performing a TURP on someone with prostate cancer could cause the disease to spread. Athanassious Dep., Ex. 45; Bick Dep. at 111:19-112:6; see also Defs.' P. & A. at 5-6. Thus, defendants contend they were unable to fully address plaintiff's medical condition because plaintiff was refusing the medical services offered to him. Defs.' P. & A. at 6, 9-10.

Plaintiff contends that several facts are in dispute, but those disputes do not create any triable issues of material fact. According to plaintiff, Dr. Athanassious has not been able to rule out cancer.*fn5 Pl.'s Stmt. 1-1. However, it does not follow from this that any defendant knew of and consciously disregarded the risk that plaintiff could have cancer. Plaintiff's cited evidence demonstrates that where prostate cancer is suspected, current biopsies or cystoscopies are needed in order to diagnose it or rule it out, as performing either a TURP or a prostatectomy on a patient with cancer could be harmful to the patient. See id. As the record reflects, plaintiff repeatedly refused to consent to such diagnostic tests.

Plaintiff also cites to several medical chronos,*fn6 including an August 1, 2006 chrono signed by Dr. Bick, which noted that plaintiff has "advanced prostate cancer with urinary obstruction," among other medical problems, and recommended that plaintiff be given an elevator pass, use of a cane, and lower bunk housing. Pl.'s P. & A. at 5; Bick Dep., Ex. 53. Dr. Athanassious testified that such chronos are not "treatment chronos," as they are issued based upon what the patient reports, as opposed to a proven diagnosis. Athanassious Dep. at 142:2-23. Further, it remains undisputed that the biopsies and tests performed as recently as December 2009 and June 2010, confirmed that plaintiff does not have cancer. Pl.'s P. & A. at 5; Athanassious Dep., Ex. 82-1. Assuming one could reasonably infer from the chrono that Dr. Bick knew or suspected plaintiff had cancer in 2006, there is no evidence that Dr. Bick ignored the issue or responded to that medical need with deliberate indifference. Rather, the record reflects that in 2006 and 2007 plaintiff continued to refuse the medical procedures offered to him. Defs.' Stmt. 1-5. Plaintiff points to no evidence showing that the medical procedures offered were inadequate, let alone chosen in a conscious disregard for plaintiff's health.

Plaintiff asserts that the Foley catheter was neither reasonable nor appropriate given his numerous requests for a TURP to relieve his blockage and defendants' repeated denials of those requests. Pl.'s Stmt. 1-3. Plaintiff also contends he wanted surgery instead of diagnostic testing. Pl.'s P. & A. at 5; Pl.'s Stmt. 1-5. However, evidence that plaintiff wanted a certain type of medical care does not show that the care actually provided or offered to plaintiff was unreasonable or inappropriate. Plaintiff's opinion as to what constituted proper medical care does not create a triable issue to defeat summary judgment. Estelle, 429 U.S. at 106.

Plaintiff also contends defendants were deliberately indifferent through their "consistent inaction," in that they (1) refused to operate on plaintiff's prostate to correct his chronic inability to urinate, (2) failed to explain to plaintiff why his requests for a TURP kept getting denied, or why, instead of a TURP, he was asked to submit to more biopsies and cystoscopies, (3) denied plaintiff's administrative appeal seeking relief from the Foley catheter, and (4) allowed the Utilization Management Committee to ignore Dr. Richman's requests that plaintiff receive a TURP. Pl.'s P. & A. at 6-7.

Plaintiff's evidence shows that Dr. Athanassious scheduled plaintiff for a TURP on January 14, 2002, and that Dr. Andreason may have been responsible for canceling that surgery. Pl.'s Stmt. 3-3. At most, however, this evidence establishes a difference of opinion between Dr. Athanassious and Dr. Andreason regarding whether plaintiff needed a TURP in 2002. Evidence that medical caregivers disagreed as to the need to pursue one course of treatment over another is insufficient, by itself, to establish deliberate indifference. Jackson, 90 F.3d at 332. While plaintiff also points to Dr. Bick's testimony that a Foley catheter is sometimes used only as a temporary measure until a TURP can be performed, it does not follow from that testimony that in disapproving of a TURP for plaintiff in 2002, Dr. Andreason demonstrated a conscious disregard of an excessive risk to plaintiff's health. See Pl.'s Stmt. 1-3. Moreover, there is no evidence that the Foley catheter should have been used only as a temporary measure in plaintiff's case.

Plaintiff also states that defendants failed to explain to him why his requests for a TURP kept getting denied, or why, instead of a TURP, he was asked to submit to more biopsies and cystoscopies. Pl.'s P. & A. at 6; Pl.'s Stmt. 1-5, Issue No. 1. However, the evidence plaintiff cites does not support this statement.

Plaintiff refers to Dr. Athanassious' testimony, which states only that Dr. Athanassious does not remember whether he discussed with plaintiff the 2002 TURP that never occurred. See Pl.'s Stmt., Issue No. 1 (citing Athanassious Dep. at 76:5-7). Plaintiff also refers to Dr. Bick's testimony, which states that he does not think he has ever had a conversation with plaintiff. Id. (citing Bick Dep. at 173:19). Plaintiff's own evidence, however, demonstrates that Dr. Bick communicated with plaintiff in writing through the administrative appeal process. At his deposition, Dr. Bick testified that when he responded to plaintiff's administrative appeal in 2003 regarding plaintiff's Foley catheter, he did not remember having any questions or concerns about a TURP at that time, because there was nothing in plaintiff's appeal regarding a TURP. See Pl.'s

P. & A. at 4 (citing Bick Dep. at 82:22-24); see also Bick Dep., Ex. 30. Plaintiff does not argue or point to any evidence suggesting why Dr. Bick, who was not plaintiff's treating physician, should have explained to plaintiff why the 2002 TURP was denied, or why Dr. Bick's failure to do so would amount to deliberate indifference to plaintiff's medical needs.

As to the issue regarding whether defendants explained to plaintiff the need for additional biopsies, plaintiff first cites to a June 2, 2003 handwritten medical record stamped with the name of Dr. Athanassious. Athanassious Dep., Ex. 32. The record appears to note that (1) plaintiff previously refused a TURP, (2) plaintiff and the doctor spoke through an interpreter, (3) plaintiff was informed that the pathology report dated August 7, 2001 was negative for cancer, (4) plaintiff refused a TURP, (5) the risks of surgery were explained to plaintiff, and (5) that a cystoscopy and "NBP," would be repeated. Id. Plaintiff then cites to another medical record stamped with the name of Dr. Athanassious, which indicates that plaintiff refused "cysy" and "NB pstate," that surgery for "BPH" was explained, including a TURP, but that plaintiff "still refused." Id., Ex. 33. Next, plaintiff cites to a July 8, 2003 request for consulting services from a urologist at California Medical Facility. Id., Ex. 34. The request states that the patient, plaintiff, refused treatment on June 2, 2003 "for prostate surgery & biopsy, then filed an appeal stating he does not understand what was explained to him . . . . . Please reiterate to [patient] his needs & risks re: prostate surgery/biopsy."*fn7 Id. The "consultant section" of the same document is dated July 28, 2003, and is stamped "R. Andreasen, M.D. Chief Medical Officer." Id. To the extent legible, it states that the patient, "through [an] interpreter was infor[med] about need for repeat cysto & needle biopsy of prostate gland[,] he refused[,] explained to the patient options [for] a large prostate gland including TURP and open [ ] prostatectomy[,] explain[ed] inform[ed] consent . . . with [patient, patient] refused." Id.

At a minimum, plaintiff's cited evidence suggests that as of July 28, 2003, Dr. Andreason informed plaintiff, who had already refused one or more TURPs, about why plaintiff needed to submit to a biopsy and cystoscopy. Plaintiff cites to evidence that in 2004 and 2006, he still had questions about why he was being asked to submit to another biopsy. Pl.'s Stmt. 1-5 (citing Athanassious Dep., Exs. 42, 61), Issue No. 1 (citing Athanassious Dep., Ex. 54). However, the cited evidence does not indicate whether those questions were directed to any of the defendants, and if so, how any defendant responded to those questions.

Additionally, plaintiff has not demonstrated that Dr. Bick consciously disregarded any substantial risk to plaintiff's health when he denied plaintiff's administrative appeal in May of 2002. Plaintiff contends Dr. Bick should have provided plaintiff relief from the Foley catheter, but instead denied plaintiff's appeal on the grounds plaintiff had misdiagnosed himself as suffering from cancer. Pl.'s P. & A. at 6. It is evident from plaintiff's administrative appeal that he sought relief from the Foley catheter, but again, plaintiff's disagreement as to what was or was not proper medical care, does not create a triable issue. See Estelle, 429 U.S. at 106. Aside from plaintiff's complaints about his medical care, plaintiff cites to no evidence suggesting that he should have been relieved of the catheter. Pl.'s Stmt. 1-3. Moreover, in denying plaintiff's administrative appeal, Dr. Bick noted that plaintiff had recently received medical care related to his prostate condition from Dr. Richman, and that plaintiff was scheduled for a follow up appointment with Dr. Richman later in the month. Bick Dep., Ex. 30. Plaintiff has not shown that Dr. Bick's denial of his administrative appeal demonstrated a conscious disregard for plaintiff's health.

Plaintiff also states that defendants "idly allowed" the Utilization Management Committee to ignore three requests by Dr. Richman for a TURP. Pl.'s P. & A. at 6. The evidence offered in support of this statement shows that Dr. Bick forwarded Dr. Richman's TURP requests to the Utilization Management Committee. Pl.'s Stmt., Issue No. 2. The record reflects that after the third request, plaintiff was scheduled for a TURP, but that plaintiff refused it. Bick Dep. at 115:5-13, Ex. 36; Athanassious Dep. at 80:10, Exs. 25, 46. Assuming Dr. Bick should have investigated or questioned why plaintiff had not received a TURP after the first or second request, plaintiff fails to demonstrate how this harmed him. At worst, Dr. Bick's failure in this regard resulted in a several month delay between when Dr. Richman's first request was forwarded on August 20, 2002, until plaintiff was scheduled for a TURP on February 3, 2003, following Dr. Richman's third request. Bick Dep.at 109:1-23, Ex. 32; Athanassious Dep. at 80:10, Ex. 25, 46. But a delay in medical care, without harm, is insufficient to demonstrate deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Although plaintiff did not actually receive a TURP on February 3, 2003, plaintiff has not shown any defendant is to blame for this. Nor has plaintiff shown any defendant is to blame for the surgeries plaintiff refused on June 2, 2003 or November 21, 2003. See Athanassious Dep. at 80:10, Exs. 25, 46, 47, 48, 50.

Lastly, plaintiff contends that defendants' deliberate indifference has caused harm to plaintiff because by 2007, the TURP that had been denied in 2002 and 2003 was no longer feasible due to plaintiff's advancing age and heart disease. Pl.'s Stmt., Issue No. 3. As discussed above, however, plaintiff has not shown that plaintiff's failure to receive a TURP was the result of defendants' deliberate indifference.

The evidence establishes that plaintiff was provided with medical care to treat his prostate condition. In addition to the terazosin and the catheter, medical staff frequently tried to monitor plaintiff's prostate condition from 1999 through 2010. Plaintiff has failed to present any evidence that the treatment he was provided was constitutionally deficient or that he suffered any injury as a result of defendants' acts or omissions. When the evidence is viewed in the light most favorable to plaintiff, and reasonable inferences are drawn in his favor, no reasonable jury could return a verdict for him and against defendants. Defendants are therefore entitled to judgment as a matter of law.

VI. Conclusion

Accordingly, IT IS HEREBY ORDERED that the October 26, 2011 hearing on defendants' motion for summary judgment, and the November 16, 2011 pretrial conference, are vacated.*fn8

Further, IT IS HEREBY RECOMMENDED that:

1. Defendants' August 17, 2011 motion for summary judgment be granted;

2. The Clerk be directed to enter judgment in defendants' favors; and

3. The Clerk be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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