The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed July 28, 2010, as to defendants O'Brien, McAlpine, Nangalama, Sahota and Bal. (Dkt. No. 43.) Plaintiff alleges that he received inadequate medical care for Hepatitis B.
Pending before the court is defendants' summary judgment motion filed May 6, 2011. (Dkt. No. 76.) Defendants argue that they did not violate plaintiff's Eighth Amendment rights. Defendants also argue that they are entitled to qualified immunity.
On December 30, 2011, plaintiff filed an opposition. (Dkt. No. 104.) On January 19, 2012, the undersigned ordered plaintiff to file further briefing clarifying his claims. (Dkt. No. 106.) On February 9, 2012, plaintiff filed this further briefing. (Dkt. No. 107.)
After carefully reviewing the record, the undersigned recommends that defendants' summary judgment motion be granted, except for the claim that defendant Nangalama did not timely prescribe antiviral medications.
II. Standards for Summary Judgment
Summary judgment is appropriate when a moving party establishes that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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.'" Id. 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. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should 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.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is 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).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). 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.'" Matsushita, 475 U.S. at 586 (citation omitted).
III. Legal Standard for Eighth Amendment Claim
Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). According to Farmer v. Brennan, 511 U.S. 825, 847 (1994), "deliberate indifference" to a serious medical need exists "if [the prison official] knows that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." The deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Specifically, a determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs. McGuckin, 974 F.2d at 1059.
First, a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference" to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison physicians provide medical care. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate indifference to be established, there must first be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." Id. Second, there must be a resulting harm from the defendant's activities. Id. The needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).
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). However, 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.
In order to defeat defendants' motion for summary judgment, plaintiff must "produce at least some significant probative evidence tending to [show]," T.W. Elec. Serv., 809 F.2d at 630, that defendants' actions, or failures to act, were "in conscious disregard of an excessive risk to plaintiff's health," Jackson v. McIntosh, 90 F.3d at 332 (citing Farmer, 511 U.S. at 837).
"'Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct.'" Hunt v. County of Orange, 2012 WL 432297 at *7 (9th Cir. Feb. 13, 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, 'the contours of a right are sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal alterations omitted).
Although the court was once required to answer these questions in order, the United States Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. at 236--42.
In resolving the question of qualified immunity, the court views the facts in the light most favorable to the plaintiff. See Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2009).
Defendants submitted a statement of undisputed facts. Plaintiff did not. The undisputed facts set forth herein are based on the undersigned's review of defendants' evidence as well as evidence contained in plaintiff's opposition.
The following information is taken from the declaration of defendant Nangalama. (Dkt. No. 76-6 at 1-3.):
Hepatitis B is an infectious illness that causes an inflammation of the liver. Most people who contract hepatitis B will get it for a short time and then get better. This is called acute hepatitis B. Sometimes, however, the patient will suffer a long-term infection called chronic hepatitis B.
The common symptoms of hepatitis B are very similar to the flu. A patient may suffer sleepiness, mild fever, headache, lack of appetite, upset stomach pain, diarrhea, muscle aches, joint pain and skin rash.
Hepatitis B is generally diagnosed by a blood test. Treatment of hepatitis B depends on how active the virus is and whether the patient is at risk for liver damage such as cirrhosis. In most cases, particularly in acute cases, hepatitis B will go away on its own with little or no treatment necessary. Home treatment will be used to relieve symptoms and help prevent spread of the virus. In long term (chronic) infection, treatment includes monitoring the condition and using antiviral medicines to prevent liver damage. The goal is to stop liver damage by preventing the virus from multiplying. If hepatitis B has severely damaged the patient's liver, a liver transplant may be considered.
Antiviral medicine is typically used if the hepatitis B virus is active and the patient is at risk for liver damage. This medicine slows the ability of the virus to multiply. Commonly prescribed antiviral medicine for hepatitis B includes: Interferons (such as interferon alfa-2b and pegylated interferon alfa-2a); and Nucleoside reverse transcriptase inhibitors (NRTIs) (such as adefovir, entecavir, lamivudine and telbivudine).
When it is believed that the hepatitis B may have caused liver damage, a liver biopsy may be conducted in which a needle will be used to take a tiny sample of the liver for testing. This test is typically unnecessary once a diagnosis of liver damage has been made.
In patients with hepatitis B, it is important that they eat right and drink plenty of fluids. A patient will generally only require a special diet in very extreme circumstances. These circumstances would be indicated by a substantial loss of weight, signs of malnutrition, inability to keep food down, and a general failure of the patient to thrive.
Chronic hepatitis B can lead to cirrhosis of the liver. Cirrhosis is characterized by replacement of liver tissue by fibrosis (excess connective tissue), scar tissue, and regenerative nodules (lumps that occur as a result of a process in which damaged tissue is regenerated), leading to loss of liver function. The damage that results increases the risk for liver cancer. A variety of tests are used to determine whether a patient may be suffering from liver cancer. These include a CT-scan, MRI, an ultrasound of the liver, liver function tests, and blood tests (including an alpha-fetoprotein (AFP) test). Several liver function tests assess liver function by evaluating excretion (e.g., bilirubin) or the liver's synthetic capability (usually reported as the international normalized ratio or INR).
When a patient's liver is inflamed, liver enzymes (transaminases) will leak out of the liver and into the blood stream, causing transaminases blood levels to be elevated. Thus, an effective way of determining the severity of a hepatitis B patient's liver condition is to examine the transaminases levels.
Plaintiff's Treatment at Corcoran
In 2004 plaintiff was housed at California State Prison-Corcoran ("Corcoran"). On August 22, 2004, plaintiff filed an inmate grievance stating that on several occasions he had experienced severe abdominal pain, nausea, vomiting and diarrhea. (Dkt. No. 104, part 1 at 25.) In the grievance, plaintiff stated that Dr. Nguyen had prescribed medication for these conditions which made his symptoms worse. (Id.) Plaintiff requested treatment by an abdominal specialist. (Id. at 26.)
In 2005, (former defendant) Dr. Posner requested that plaintiff receive a colonoscopy due to a family history of colon cancer. (Id. at 29.) On April 18, 2005, Dr. Schuster performed an endoscopy, the results of which were unremarkable. (Id. at 30.) The colonoscopy could not be performed because plaintiff was not adequately prepared. (Id.) Dr. Schuster felt that plaintiff should still undergo a colonoscopy. (Id.) On June 3, 2005, Dr. Schuster performed the colonoscopy. (Id.) The results of this procedure are not in the court record.
On July 19, 2005, plaintiff had a blood test. (Id. at 33.) The results indicated that plaintiff's "SGOT" and "SGPT" levels were high. (Id.)*fn1 In December 2005, a "hepatitis prof" was ordered for plaintiff. (Id. at 34.)
Defendant O'Brien/Care at Tehachapi
Defendant O'Brien first became involved in plaintiff's care on March 27, 2007. (Dkt. No. 76-4 at 7 of 32.) It is unclear from the record where plaintiff was incarcerated when defendant O'Brien treated plaintiff, but it appears that it may have been at the California Correctional Institution in Tehachapi, California. It is relatively clear that plaintiff was not housed at Corcoran when he received treatment from defendant O'Brien.
On March 27, 2007, plaintiff was seen by nursing staff regarding complaints of back pain. (Id.) Defendant O'Brien did not examine plaintiff on that date, but he was contacted by nursing staff regarding plaintiff's back pain. (Id.) Defendant O'Brien made a verbal order for plaintiff to be prescribed Baclofen. (Id.)
Defendant O'Brien saw plaintiff on April 10, 2007, at which time plaintiff complained of visual problems and back pain. (Id.) Defendant O'Brien diagnosed plaintiff with visual problems, for which he was awaiting glasses, and a lumbar sprain, for which he prescribed Baclofen. (Id.)
On May 2, 2007, plaintiff underwent lab tests. (Dkt. No. 76-8 at 11-12.) It is unclear who ordered these tests. Those lab results showed that plaintiff's creatinine level was high. (Id.) Plaintiff was scheduled for a follow-up. (Dkt. No. 76-4 at 7 of 32.)
A high creatinine level is a sign of possible kidney disease. (Dkt. No. 76-5 at 2 of 44.) A high creatinine level is not related to hepatitis and is not indicative of that disease.*fn2 (Id.) On May 23, 2007, defendant O'Brien saw plaintiff again. (Id.) Plaintiff
complained of scalp dermatitis and acid reflux disease. (Id.) Based on the high creatinine level, defendant O'Brien diagnosed plaintiff with borderline renal failure. (Id.) Defendant O'Brien ordered a critical case ...