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 April 5, 2010, as to defendants Miller, Swingle, Medina, St. Laurent and Bowers. Plaintiff alleges that he received inadequate medical care while housed at High Desert State Prison ("HDSP") in violation of the Eighth Amendment and state law.
Pending before the court is defendants' summary judgment motion filed August 10, 2011. Defendants argue that they did not violate plaintiff's Eighth Amendment rights. Defendants also argue that they are entitled to qualified immunity.
On February 9, 2012, plaintiff filed his opposition to defendants' summary judgment motion. On February 21, 2012, the undersigned granted defendants an extension of time to March 26, 2012, to file their reply to plaintiff's opposition. Defendants did not file a reply within that time.
After carefully reviewing the record, the undersigned recommends that defendants' motion be granted in part and denied in part.
II. Legal Standard 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).
At all relevant times, defendant Swingle was the Chief Medical Officer ("CMO") at HDSP. (Dkt. No. 71-6 at 2.) At all relevant times, defendant Miller was a Senior Registered Nurse ("SRN") at HDSP. (Dkt. No. 71-7 at 1.) At all relevant times, defendant Medina was a licensed Physician's Assistant at HDSP. (Dkt. No. 71-3 at 1.) At all relevant times, defendant Bowers was a Psychiatric Technician ("Psych Tech") at HDSP. (Dkt. No. 14 at 3.) At all relevant times, defendant St. Laurent was a Senior Psych Tech at HDSP. (Dkt. No. 71-5 at 1.)
Plaintiff was housed in the HDSP Administrative Segregation unit known as the Z Unit from May 2007, to July 2008. (Dkt. No. 14 at 6.) In July 2008, plaintiff was transferred to Corcoran State Prison ("Corcoran"). (Id. at 17.) On or around November 3, 2008, plaintiff returned to the Z Unit at HDSP. (Id.)
In June 2007, plaintiff had back surgery that caused nerve damage. (Id. at 13.) In July 2007, Gabapentin, twice daily, was prescribed to treat the pain caused by the nerve damage. (Id.)
On January 6, 2008, plaintiff filed a grievance alleging that he did not receive his Gabapentin on January 1, 2008, and January 6, 2008. (Id. at 42.) In that grievance, plaintiff also alleged that "numerous" other times he did not receive his Gabapentin, usually in the mornings and on weekends. (Id.)
On January 6, 2008, Nurse Clark responded to plaintiff's grievance at the informal level. (Id.) Nurse Clark responded that he had no control over what occurred when he was not working, but that he would discuss the issue with his supervisor. (Id.)
In the beginning of 2008, defendant Miller's duties included scheduling nurses to deliver medications in the Z Unit. (Dkt. No. 71-7 at 2.)
On February 26, 2008, defendant Miller interviewed plaintiff regarding his appeal from Nurse Clark's response to his informal level appeal. (Id. at 2.) At the time of the interview, defendant Miller supervised only Nurse Clark. (Id.)
On March 5, 2008, Dr. Agyeman issued a decision partially granting plaintiff's first level appeal. (Dkt. No. 14 at 44-45.) In that response, Dr. Agyeman discussed defendant Miller's interview with plaintiff. (Id. at 44.) Dr. Agyeman stated that defendant Miller told plaintiff, in part, "There is appropriate policy in effect for the distribution of medications. Your request that the nurses be counseled and reprimanded is not granted as inmates do not dictate disciplinary action against staff." (Id.)
Plaintiff appealed the first level appeal decision by Dr. Agyeman to the second level. On April 30, 2008, defendant Swingle partially granted plaintiff's second level appeal. (Id. at 48-49.) In that decision, defendant Swingle stated that defendant Miller had explained to plaintiff that "Z unit staff had been instructed on medication distribution and that there is already policy in place regarding the distribution of medication." (Id. at 48.)
At some time prior to plaintiff's transfer back to HDSP on November 3, 2008, plaintiff had been prescribed Tramadol for gastro-intestinal pain. (See Dkt. No. 98-3 at 14 (June 10, 2008 Progress Note from HDSP indicating plaintiff prescribed Tramadol); Dkt. No. 98-3 (July 30, 2008 entry in plaintiff's medical records from Corcoran indicating plaintiff prescribed Tramadol).) From November 4, 2008, through November 14, 2008, plaintiff received Gabapentin but no Tramadol. (Dkt. No. 14 at 61-64.) Defendant Medina stopped plaintiff's Tramadol prescription following plaintiff's initial return to HDSP. (Dkt. No. 71-3 at 2.)
On November 5, 2008, plaintiff filed a grievance alleging that he was not receiving the medications that had been ordered at Corcoran, including: 1) Tramadol, 50 mg four times a day; 2) Ensure in the morning and a supplemental p.m. snack; 3) double mattress and cervical wedge. (Dkt. No. 14 at 54.)
In November of 2008, psych techs were only responsible for passing out medications to inmates in administrative segregation units. (Dkt. No. 71-5 at 1-2.) Psych techs could only pass out medications in the manner prescribed by a licensed medical provider. (Id. at 2.)
On November 10, 2008, plaintiff went "man down," complaining of stomach pain. (Dkt. No. 14 at 62.) Plaintiff was placed in a holding cage to wait for treatment. (Id.) While plaintiff was in the holding cage, defendant Bowers told plaintiff that his Tramadol order had been found and that he would receive it the next day. (Id.)
On November 10, 2008, plaintiff was informed that defendant Medina had stopped plaintiff's Tramadol prescription. (Dkt. No. 14 at 63.) On November 11, 2008, plaintiff went on a hunger strike to protest the discontinuation of the Tramadol. (Id.)
On November 14, 2008, defendant Medina reinstated plaintiff's Tramadol prescription for 50 mg twice a day, rather than 50 mg four times a day as requested by plaintiff, until he could examine plaintiff. (Dkt. No. 71-3 at 3.) Plaintiff then ended his hunger strike. (Dkt. No. 14 at 63.)
On December 1, 2008, defendant Medina interviewed plaintiff. (Id. at 70.) Defendant Medina denied plaintiff's request to increase the Tramadol prescription as well as plaintiff's request for a snack. (Id.)
On December 9, 2008, Dr. Nepomuceno partially granted plaintiff's appeal at the first level. (Id. at 57-57.) Dr. Nepomuceno stated that, according to defendant Medina, all of plaintiff's medications, including Ensure, were current. (Id. at 56.) Dr. Nepomuceno also stated that plaintiff's cervical pillow was on order. (Id.)
On or around December 16, 2008, plaintiff filed an appeal of Dr. Nepomuceno's order to the second level of review. In this appeal, plaintiff claimed that his prescribed medications were not current. (Id. at 58.) Plaintiff claimed that defendant Medina improperly ordered that he receive Tramadol only twice a day, contrary to the order by the doctors at Corcoran that he receive it four times a day. (Id.) Plaintiff alleged that he needed Tramadol four times a day to ...