The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint, filed March 31, 2010. (Dkt. No. 1.) On June 7, 2011, the previously assigned magistrate judge issued an order stating that plaintiff had alleged cognizable Eighth Amendment and state law negligence claims against defendants Nangalama, Hamkar, Ma, Teachout, and Sweeney. (Dkt. No. 12) Pending before the court is defendants Nangalama, Hamkar, Ma, and Teachout's*fn1 December 15, 2010 motion to dismiss the claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 30, hereinafter "Mot.") Plaintiff filed an opposition to the motion, and defendants filed a reply. (Dkt. Nos. 39, 42.) For the reasons set forth below, the court will recommend that defendants' motion be granted in part and denied in part.
Plaintiff, an inmate at California State Prison-Solano, alleges that defendants showed deliberate indifference to serious medical needs. Plaintiff's allegations concern his medical treatment both leading up to and following his January 2009 surgery to remove a cancerous growth in his neck. At all times relevant to this action, defendant doctors Nangalama, Hamkar, and Ma, and licensed vocational nurses Teachout and Sweeney, were employed at California State Prison-Sacramento (CSP-Sacramento.) (Dkt. No. 1 (Cmplt.) ¶¶ 6-10.)
I. Pre-Surgery Allegations
A. Referral to UCD Medical Center
In January 2008, while incarcerated at Pelican Bay State Prison,
plaintiff noticed a mass under his left jaw. (Dkt. No. 1-1 at
2-3*fn2 (Ex. Y)) After a July 2008 biopsy on his lymph
node tested positive for squamous cell carcinoma, petitioner was
referred to an outside Ear, Nose, and Throat specialist (ENT) for
evaluation so that the primary cancer site could be determined.
(Cmplt. Ex. B, C, F, G.) Physician's progress notes dated September 9,
2008 state that an "urgent referral has been made to UC Davis ENT . .
. Results of biopsy and CT [Computed Tomography] chest, abd, pelvis
faxed to UCD ENT. P[atient] seen by Dr. Polidore, who verbally
indicated [patient] will probably need panendoscopy*fn3
and/or radical neck. As these services are not done by him
[and] not available anywhere near our area, referral made to UCD."
(Id. Ex. G.)
Plaintiff was transferred to CSP-Sacramento for a September 23, 2008 appointment at the UC-Davis Medical Center. (Id. Ex. A, B.) However, plaintiff was not allowed to attend his scheduled appointment because the institution was on contraband watch that day and correctional officers deemed plaintiff's appointment a security risk. (Id. ¶¶ 18-20, Ex. E.)
On September 25, 2008, plaintiff was seen by defendant Dr. Nangalama at CSP-Sacramento. Plaintiff explained to Dr. Nangalama "that he was transferred to CSP-Sac for cancer treatment. During this visit plaintiff explained that Dr. Williams, [his Primary Care Physician at Pelican Bay State Prison], explained the prognosis without the discovery of the primary site his 'condition would degenerate to terminal.'" Dr. Nangalama did not physically examine plaintiff, but reviewed his file and stated: "I don't see why your [sic] down here. Your cancer is benign." (Id., ¶¶ 21-23, Ex. F.) Plaintiff stated: "If I don't have cancer then send me back." (Id. ¶ 24.) Dr. Nagalama's treatment notes state that plaintiff had "CT- Head, Chest, Abd[omen] and Pelvis done - No evidence of metastic disease." Dr. Nagalama noted that plaintiff had squamous cell cancer of "lymph in neck - without evidence metastic cell disease per CT." He noted that plaintiff was scheduled for a follow-up appointment at UC-Davis the next week, but wanted to return to Pelican Bay.*fn4 Dr. Nangalama noted that he had briefly discussed the course of treatment with another doctor and a nurse, with further discussion to follow. (Id., Ex. F.) This appointment constituted plaintiff's only interaction with Dr. Nangalama.
After leaving Dr. Nagalama's office, plaintiff told a non-defendant nurse that Dr. Nangalama had diagnosed his cancer as benign and plaintiff "guessed he was going back to PBSP." (Id. ¶ 25.) The nurse "expressed concern with the diagnosis" and consulted with another non-defendant nurse, who told plaintiff to seek a second opinion and referred him to non- defendant Nurse Practioner (NP) Bakewell.
After talking with plaintiff, NP Bakewell agreed that plaintiff should "attend his ENT evaluation at UCD." However, due to a series of bureaucratic delays that did not directly involve the named defendants (except as described below), plaintiff was not seen at UCD Medical Center until December 2008. (Id. at ¶¶ 27-43.)
On November 13, 2008, plaintiff was seen by defendant Dr. Hamkar. Plaintiff explained that he had cancer with an unknown primary and that his most recent appointment with a UC-Davis ENT had been cancelled. Dr. Hamkar told plaintiff that he would submit a form requesting an urgent specialty consultation. (Cmplt. at ¶¶ 44-45.) However, on the referral form completed that day (whether by Dr. Hamkar or a nurse is not clear), the form was not clearly marked as "urgent."*fn5 (Id. ¶ 49, Ex. S.)
On December 2, 2008, plaintiff informed nursing staff that 19 days had passed since Dr. Hamkar had issued an "urgent" referral to a ENT specialist. The nurse found the referral form that was not clearly marked as urgent, and consulted with Dr. Hamkar. Another referral form was filled out, this time correctly marked "urgent." (Id. ¶¶ 48-49.)
On December 7, 2008, plaintiff discovered another lump in his neck just below the previous lump. (Id. ¶ 52.)
On December 9, 2008, a specialist at the Davis Medical Center, Dr. Aouad, diagnosed plaintiff with "squamous cell carcinoma of the left neck, unknown primary." Dr. Aouad allegedly informed plaintiff that his cancer was "extremely aggressive and required urgent surgery[.]" He noted in his report that plaintiff had lost 37 pounds since January 2008, and recommended that plaintiff get "the CT scan with IV contrast ASAP and get the report, get the slides, and also I recommend that the patient getting panendo with biopsy including tonsillectomy for evaluation and assessment of the primary. Should the primary stay unknown, the patient is a candidate for a left modified radical neck dissection and radiation therapy to his neck and primary." The specialist reported that he would "make an urgent request to get the CT scan, slides, and schedule the patient for the panendo." (Id. ¶ 54; Dkt. 1-1, Ex. Y.)
On December 15, 2008, plaintiff was again seen by Dr. Hamkar. He reported that he had found another tumor, and that Dr. Aouad had recommended immediate surgery before the cancer could spread further. Dr. Hamkar made dismissive remarks. However, two days later, he submitted a request for services for a "CT neck with contrast" for plaintiff at UCD Radiology. However, the form was marked "routine" rather than "urgent." (Id. at ¶ 55-56; Dkt. No. 1-1 at 16 (Ex. 1A).)
On January 5, 2009, plaintiff had a panedoscopy and tonsillectomy procedure for evaluation of the primary source of the cancer. On January 7, 2009, he underwent an extended modified radical neck dissection surgical procedure for squamous cell carcinoma of the left neck. (Id. at ¶¶ 58-59; Dkt. No. 1-1 at 20-24 (Ex. 1C, 1D).)
II. Post-Surgery Allegations
On January 19, 2009, plaintiff was discharged from the hospital to the prison "in good and stable condition" with his "pain . . . well controlled." The discharge report stated that he "tolerated a soft diet" and was to have a "non fat diet until next clinic visit." (Id. at ¶ 60; Dkt. No. 1-1 at 25 (Ex. 1D).) Medical notes indicated that plaintiff's recovery had been complicated by a "chyle leak with significant output," which caused an accumulation of fluid in his neck. The problem was treated and the drains were removed. (Dkt. No. 1-1 at 25 (Ex. 1D).) At discharge, plaintiff was informed that he needed to elevate his head while sleeping so as not to complicate his recovery. (Id. at ¶ 62.)
A. Dr. Ma and Nurse Teachout
Two days after his discharge, plaintiff was seen by defendant Dr. Ma. He informed Dr. Ma of his need for a non-fat, soft diet until his follow-up visit, and complained that he had not eaten since his discharge as this diet was not being provided to him. He asked Dr. Ma's assistance in acquiring this diet. Dr. Ma told plaintiff that he was aware of plaintiff's condition and discharge instructions, but allegedly refused to place plaintiff on a special diet stating, "the institution does not do special diets." (Id. at ¶¶ 66-68.) However, the physician's order issued that day states that plaintiff was to have a non-fat diet until his next clinic visit "per UCD recommendations" and that his head was to be elevated at a 30-degree angle with pillows. (Dkt. No. 1-1 at 30 (Ex. 1E), 57 (Ex. 10).) Dr. Ma also issued a chrono authorizing plaintiff to obtain two extra pillows. (Dkt. No 1-1 at 38 (1I).)
Later that day, plaintiff attempted to obtain his two extra pillows from defendant Nurse Teachout. Teachout refused to provide him these pillows, allegedly stating that the pillows were not "medical issues." Plaintiff notified Dr. Ma that he had not received the pillows and that Teachout claimed it was a custody issue while custody claimed it was a medical issue. Dr. Ma refused to help plaintiff get his pillows and directed plaintiff back to Nurse Teachout. (Id. ¶¶ 69-70.) Plaintiff claims that as a result he was forced for over two weeks to "resort to such measures as sleeping upright, and attempting to make makeshift pillows from blankets and rolling up his mattress," because "his mouth consistently filled with phlegm and thick saliva as he slept, causing gagging, choking and irritating the throat." (Id. ¶¶ 64-65.) Plaintiff eventually received his extra pillows on February 19, 2009, when correctional staff conducted a cell check, determined that he did not have his recommended pillows, and provided them. (Id. ¶ 70; Dkt. No. 1-1 at 40-41 (Ex. 1J), 52 (Ex. 1M).)
As to plaintiff's medically recommended diet, plaintiff alleges that, around January 23, 2009, Dr. Ma completed his research into plaintiff's diet issue and allegedly "informed plaintiff that diets were ...