Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He claims that the defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights when they executed and enforced certain policies regarding the treatment of diabetic inmates. Defendants have moved for summary judgment.
The undersigned concludes that the opinion of a neutral expert is necessary to accurately determine whether the evidence shows triable issues of material fact such that this case must proceed to trial. Accordingly, the court will seek nominations for potential neutral experts from the parties and deny the summary judgment motion without prejudice to its renewal once the court has received the expert's report.
This action proceeds on the verified amended complaint filed October 4, 2006. Dckt. No. 16. Claims currently remaining in the action are plaintiff's claims that defendants Dovey, Felker, and Roche executed and enforced unconstitutional policies pertaining to the treatment of diabetic inmates. Dckt. No. 56 at 2.*fn1 (Plaintiffs claims against other defendants and his claim against defendant Roche for alleged failure to provide medication have been dismissed. Id.)
Specifically, plaintiff alleges that defendant Dovey is the Director of Corrections for the state of California and is responsible for "the overall operations" of each California prison, including High Desert State Prison ("HDSP"), where plaintiff was confined at the time he filed this action. Dckt. No. 16 at 1-2. Defendant Felker is the "superintendent" of HDSP and is responsible for its operations and the welfare of its inmates. Id. at 2. Defendant Roche is a medical doctor who was the Chief Medical Officer at HDSP at all times relevant to the complaint. Id.
According to plaintiff, defendants adopted or enforced policies that were deliberately indifferent to his serious medical needs as a diabetic inmate. Plaintiff describes his condition as follows:
Plaintiff is an insulin depended [sic] diabetic with related complications, high blood pressure, a condition called neuropathy which causes poor blood flow, pain and numbness in the legs and feet. It also places me at high risk for heart disease, stroke, infection and amputation. Because of my condition I require daily access to a exercise yard [sic] to walk or run to increase the blood flow to my heart and legs. I also require effective distribution of medications that improve and sustain quality in life, a special diet prepared by a medically trained dietician, and a emergency plan [sic] to prevent hypoglycemia while traped [sic] in a cell overnight.
Id. at 3. Plaintiff alleges that he received such treatment in a prior institution but that, when he was transferred to HDSP on August 11, 2005, the needed treatments (exercise, medication, diet, and emergency plan) were stopped according to a screening policy in place at HDSP. Id. His prescriptions for blood pressure and pain medication were discontinued. Id. No special diet was provided, nor any emergency snack, because HDSP, per policy, does not provide special diets or emergency snacks to diabetic inmates. Id. at 3-4. Further, HDSP policy only allowed inmates to access the yard for 1.5-2 hours five times per month. Id. at 4.
After complaining, plaintiff was seen by a doctor who prescribed blood pressure and pain medication (enalapril and neurontin, respectively). Id. Plaintiff received the enalapril on August 26, 2005. Id. Plaintiff received the neurontin on September 5, 2005, but was only given enough for one month. Id. at 5. He had to wait over 30 days for a refill, and asserts that he contined over that time suffering pain in his legs and feet. Id.
Plaintiff alleges that he developed an infection on one of his toes because of the lack of exercise to increase blood flow to his legs and feet. Id. at 6.
In sum, in the claims remaining in this action, plaintiff alleges that defendants are responsible for several policies, which together prevented him from receiving adequate treatment for his diabetes: (1) a policy to discontinue medications upon an inmate's transfer to HDSP; (2) a policy resulting in the erratic distribution of neurontin; (3) a policy to deny diabetic inmates a special diabetic diet; (4) a policy of inadequate yard-time for diabetic inmates; and (5) a policy depriving diabetic inmates of an emergency snack to treat hypoglycemia.
II. The Motion for Summary Judgment*fn2
In seeking summary judgment, defendants first argue that plaintiff lacks evidence that any defendant promulgated or implemented any of the above-summarized policies. Liability under § 1983 may be imposed on a supervisory official such as the defendants here if (among other things) the supervisor implemented a policy "so deficient that the policy itself 'is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). The undersigned will address defendants' contentions as to each alleged unconstitutional policy.
Medication Continuity on Transfer. Defendants argue that the undisputed facts show no policy to discontinue inmate medications upon transfer to HDSP. Dckt. No. 134-3, Defs.' Stmt. of Undisp. Facts ISO Mot. for Summ. J. (hereinafter "DUF") 14. Instead, defendants argue, an inmate's treating physician decides whether to continue medications upon the inmate's transfer to the institution. Id. In response, plaintiff declares that defendants "ignored the mandated policy of continuity of medication upon transfer, by promulgating some policy (underground) that intentionally interfered with the way the continuity of medication for transferee[s] was to be provided." Dckt. No. 142 at 3. As support for this assertion, plaintiff cites to various policies that explicitly provide mechanisms to ensure that inmates' prescriptions are not interrupted upon transfer until they are seen by their primary care physicians. Id. at 28-37 (Ex. "BB") ...