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.
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:
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. ...