The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. This civil rights action is proceeding on plaintiff's September 27, 2010 third amended complaint ("TAC"). On September 6, 2011, defendant Chambers filed a motion to dismiss on the grounds that the TAC fails to state a cognizable deliberate indifference claim under the Eighth Amendment. Plaintiff filed an opposition, and defendant Chambers filed a reply.*fn1 For the reasons set forth below, the undersigned recommends that defendant Chambers' motion be denied.
II. Plaintiff's Third Amended Complaint
Plaintiff's TAC names ten defendants, and alleges deliberate indifference to plaintiff's serious medical needs. (Dkt. No. 22.) Eight defendants filed an answer (dkt. no. 30), and one defendant is deceased (dkt. nos. 37, 72). Plaintiff appended medical records confirming his Hepatitis-C diagnosis, his prescriptions for psychotropic medications for mental illness, and lab results setting forth his viral loads. (Dkt. No. 22 at 6-8; 14.)
Plaintiff's allegations against defendant Chambers state: After a personal interview by Dr. Chambers and my explaining that I had been diagnosed on the streets in 2004 by my primary care Physician Dr. L. Wolfe MD that I tested positive for the Hep-C virus so had to be very careful on what substances, foods, medications that I put into my body as these things can have a direct and dramatic effect or consequence to my Liver. So my primary care physician ordered monthly blood test[s] to monitor my Liver function and mainly to see if there was any real or lasting effect that was being done to my compromised Liver? I explained all of this to Dr. Chambers and he was totally ambivalent to my personal medical need for keeping the status quo of the medications I had been taking for several years, that were not hurting my Liver or overall general health. As he wrote on page 7 of 14 (By proxy) of my 602 appeal, He was deliberately indifferent to my serious medical need[s] even after I stressed my utmost concerns in regards to my Liver function due to that fact I carried 2 strains of the Hep-C virus (1a and 2b) and it had been proven and shown in the past (via blood test on a monthly basis) that my viral load was stabilized between 250 thousand and 350 thousand. This means the psychotropic medications and the pain medications I had been on for several years were the least toxic to my Liver as proven by the monthly blood test. Dr. Chambers['s] deliberate indifference to my serious medical need after I explained all of this clearly to him is why I now name him as a defendant in this action.
(Dkt. No. 22 at 3.) The page marked "7 of 14" attached to the TAC states:
Denied/Interviewed by Dr. Chambers on 7-11-08 relative to the issues identified in this appeal (change of medications). Wellbutrin is now a nonformulary medication per the new standardized CDCR statewide pharmacy and Therapeutics. This was discussed with you. The decision to change the use of this medication was made for safety issues. There are several criteria that must be met before this medication will be prescribed. Your case does not meet the criteria. Adjustments were made to your current psychotropic medications.
(Dkt. No. 22 at 15.) In paragraph nine of the TAC, plaintiff further alleges:
It was told to me verbally in person by both Dr. Chambers and Dr. Evans Psychiatrist that they had been ordered to stop or discontinue the psychotropic medications that CDCR had prescribed to me for many years that were working effectively in treating my Mental Health Issues but [due] to the fact that other inmate patients that had abused or misused these medications in the past that I was now going to in essence suffer for [their] mistakes. So Dr. Franchechi had ordered both of these licensed Psychiatrists what they could and would prescribe to the inmate patients in DVI-Reception Center regardless of the medical need or necessity to prescribe the medications that worked and were the least toxic to My Liver and overall health. Effectively tying these 2 psychiatrist[s] from prescribing the medications that would help me and not hurt me and that had been effective in treating my Mental Illness for many years. (Dkt. No. 22 at 5.)
Plaintiff further alleges:
The types of psychotropic medications that were started by CDCR psych services by various licensed psychiatrists over several years had been initiated by the Dept. of Corr. & Rehab. for many many years and there was no reason for them to make any changes to my medications. Because they were both effective in treating my mental illness as well as not being toxic to my Liver as evidenced by the lab results attached from February 2008 and July 2008. It clearly shows the toxic and detrimental effect of the different psychotropic medications that the psychiatrist at DVI forced me to take instead of the non-toxic psychotropic medications that I had been prescribed by CDCR parole Dept. and in custody. Yet the psychiatrist at DVI-Reception Center Prison chose to ignore my pleas as well as the results of the blood test they performed in February 2008 and July 2008 (see attached). I personally pleaded with every psychiatrist and medical personnel that I spoke to that I was a unique medical case both medically (Hep-C infection) and psychiatrically because the psychiatrist needed to take into consideration my serious medical condition in regards to giving me psychotropic medications that were the least toxic to my Liver as possible. The psychiatrist[s] at DVI were completely deliberately indifferent to my cries for help. So they prescribed unproven and untested anti-depressants for me to take (effexor, Remeron, Abilify etc. etc.) all of which I went blindly along with to the detriment of my Liver and overall general health. At the present time I am only receiving one of the psychotropic medications of the 5 plus the pain medication (vycodin) that I was on. I am currently only taking (Wellbutrin SR) twice a day/morning and nite. At this point my Liver was made so toxic by those other psychotropic medications that CDCR psychiatrist[s] forced me to take instead of what I begged and pleaded with them not to change for fear of the damage to my weakened liver. But this was all to no avail and now my liver has been damaged to the point that my Viral Load is just going up and up with no end in sight, which means it is destroying my Liver and now bringing on my imminent death prematurely!
Because all of the psychiatric staff of professionals all the way up the chain and through the appeals process to Sacramento ignored my concerns about my ailing liver. Making all of the said defendants culpable in my pain and suffering and deliberate indifference to my serious medical need as they were all put on notice by me in one way or another (verbally in person or via the 602 appeals process). So under 42 USC 1983 Civil Code these defendants are all liable and responsible in some way of causing undue harm to me and therefore I am entitled to monetary compensation. (Dkt. No. 22 at 26-27.) Plaintiff claims that the new prescription regiment elevated plaintiff's viral load count, further injuring plaintiff's liver. (Dkt. No. 22 at 27.)
Defendant Chambers argues that plaintiff fails to allege any facts demonstrating that Dr. Chambers acted with the requisite motive or intent required to evidence deliberate indifference under the Eighth Amendment. (Dkt. No. 71-1 at 7.) Defendant Chambers also claims plaintiff has alleged facts demonstrating, at most, medical negligence, which ...