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. On February 7, 2012, all of plaintiff's claims were dismissed except for the Eighth Amendment claim against defendant Duc alleging inadequate medical care. (Dkt. No. 61.) On March 28, 2012, the undersigned granted defendant Duc's motion to file a second dispositive motion. (Dkt. No. 66.)
Pending before the court is defendant Duc's summary judgment motion. (Dkt. No. 69.) Defendant Duc originally filed this motion on April 18, 2012. (Id.) On June 12, 2012, plaintiff filed an opposition. (Dkt. No. 73.) On June 15, 2012, defendant filed a reply. (Dkt. No. 74.)
On July 19, 2012, the court issued plaintiff notice of the requirements for opposing a summary judgment motion pursuant to Woods v. Carey, 2012 WL 2626912 (9th Cir. July 6, 2012). (Dkt. No. 75.) This order gave plaintiff the option of filing a new opposition, a supplemental opposition or a statement that he chooses to rely on his previously filed opposition. (Id.) This order also deemed defendant Duc's summary judgment motion re-noticed as of the filing date of the order. (Id.)
On August 2, 2012, plaintiff filed a notice stating that he chose to rely on his previously filed opposition. (Dkt. No. 76.)
After carefully reviewing the record, the undersigned recommends that defendant Duc's summary judgment motion be granted.
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).
This action is proceeding on the third amended complaint. (Dkt. No. 27.) The following are plaintiff's allegations that he received inadequate medical care for several problems.
Plaintiff alleges that he did not receive adequate medical care for a back injury he suffered in March 2007. (Dkt. No. 27 at 2.) Plaintiff alleges that between March 5, 2007, and August 1, 2007, he submitted eight CDC 7362 forms requesting to be seen for his back injury. (Id. at 3.) Plaintiff also alleges that on April 30, 2007, prison officials ordered a back brace for him. (Id.) Plaintiff still had not received the back brace on June 7, 2007. (Id. at 4.) On May 15, 2007, plaintiff requested an x-ray for his back. (Id.) On June 13, 2007, Gabriel Borges ordered x-rays of plaintiff's back. (Id.) On July 19, 2007, plaintiff submitted a CDC 7362 form requesting information about the egg crate mattress that had been ordered for his back. (Id. at 4.) On July 26, 2007, plaintiff submitted a CDC 7362 form asking about the x-rays that had been ordered, but not yet taken. (Id.)
On August 11, 2007, x-rays were taken of plaintiff's back. (Id.) On August 13, 2007, Katherine Blackwell told plaintiff that his back injury had "healed over" and there was nothing that could be done to remedy the lost mobility and discomfort he would experience. (Id.)
On August 28, 2007, plaintiff submitted a CDC 7362 form requesting to be seen by medical staff for mouth sores. (Id. at 5.) On April 30, 2008, plaintiff submitted another CDC 7362 form requesting to be seen by medical staff for mouth sores. (Id.) On April 29, 2008, plaintiff was seen by a "doe" defendant for his mouth sores, but no treatment was provided. (Id.) Plaintiff submitted CDC 7362 forms requesting treatment for the sores in his mouth on May 19, 2008, and June 5, 2008. (Id. at 5.) On July 9, 2008, Dr. Wedell examined plaintiff, but provided no treatment for his mouth sores. (Id.) On August 5, 2008, plaintiff submitted a CDC 7362 form requesting treatment for his mouth sores. (Id.)
On September 8, 2008, plaintiff went to the emergency room for treatment for his mouth sores, but no treatment was provided. (Id. at 6.) The medical staff at the emergency room told plaintiff to notify nursing staff if the sores got any worse. (Id.) On October 10, 2008, plaintiff was seen by defendant "doe" for follow-up on his mouth sores. (Id.) Plaintiff was again instructed to notify nursing staff if his mouth sores got any worse. (Id.)
Hepatitis C -- Allergic Reaction
Plaintiff alleges that on August 5, 2007, he was prescribed treatment for Hepatitis C. (Id.) Plaintiff suffered an allergic reaction as a result of the interaction between his Hepatitis C medication and other medications he was taking. (Id.)
On October 24, 2007, plaintiff submitted a CDC 7362 form seeking treatment for his allergic reaction. (Id.) Between October 21, 2007, and October 27, 2007, plaintiff suffered severe burning, itching, and welts and rashes over a large portion of his body. (Id. at 6-7.) On October 31, 2007, plaintiff was seen by defendant "doe" for treatment for the allergic reaction. (Id. at 6.) Plaintiff alleges that it took approximately eight days for him to be seen by defendant "doe" because this defendant determined that the allergic reaction did not meet emergency criteria. (Id. at 7.)
On November 9, 2007, and December 17, 2007, plaintiff submitted CDC 7362 forms requesting treatment for the rash caused by the allergic reaction. (Id. at 8.) On December 21, 2007, plaintiff was examined by Dr. Sogge who provided no treatment for the rash. (Id.)
Hepatitis C -- Discontinuation of Treatment
Plaintiff alleges that on December 25, 2007, his Hepatitis C treatment was discontinued. (Id. at 7.) Plaintiff was informed that the treatment was not "in stock" and they would have to get more. (Id.) Plaintiff alleges that for the Hepatitis C treatment to work, it must be administered on a rigid schedule. (Id.) Plaintiff alleges that had he voluntarily requested to stop the treatment once it began, he would have been subject to disciplinary action. (Id.)
On December 31, 2007, plaintiff was denied the last two injections for the Hepatitis C treatment because defendant "doe" did not have enough time to get the ...