The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND
DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff is a state prisoner proceeding pro se in this civil rights action. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).*fn1 Pending before the Court are Plaintiff's motion for summary judgment, and Defendants' cross-motion for summary judgment.
This action proceeds on the November 6, 2009, first amended complaint. Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Avenal State Prison, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff names as Defendants the following individuals employed by the CDCR at Avenal: Warden J. D Hartley; Chief Medical Officer (CMO) E. Greenman; CMO S. Suryadevara; Dr. M. Bopari. On February 11, 2010, an order was entered, finding that the first amended complaint stated a claim for relief against Defendants Greenman and Suryadevera on Plaintiff's claim of deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Defendants Hartley and Bopari were dismissed from this action based on Plaintiff's failure to state a claim upon which relief could be granted. Defendants answered the complaint. On December 14, 2011, Plaintiff filed a motion for summary judgment as to Defendant Suryadevera. Defendants filed opposition to the motion. On March 21, 2012, Plaintiff filed another motion for summary judgment. On April 9, 2012, Defendants filed opposition to Plaintiff's motion for summary judgment. In their opposition, Defendants argue that there is no triable issue of material fact, and that judgment should therefore be entered in their favor.*fn2
Plaintiff alleges that he has been diagnosed with "calcific granuloma" in his lower left lung and that he has had consistent throat pain that radiates to his left eye and upper lung. Plaintiff alleges that when he arrived at Avenal, he began having respiratory problems that were diagnosed as pneumonia and treated with antibiotics, an inhaler and a "pneumococcal vaccine." Plaintiff alleges that "medical doctors" at Avenal ordered an MRI in 2007, and opted for an ultrasound in 2008, but neither procedure has been performed. Plaintiff alleges that a throat culture was taken in 2009, but it was not properly processed and no diagnosis was made. Plaintiff asserts that he suffers from throat, mouth, tongue and ear pain, has intermittent dizziness, and has sustained ear damage that has caused some hearing loss.
Plaintiff claims that "his custodians have been deliberately indifferent to his pain and suffering by not providing the very basic diagnostics to determine the source of his infection," even though those diagnostic tests have been ordered by medical staff, and have intentionally delayed providing medical treatment. Plaintiff alleges that he "has consistently complained to staff about his medical problems and has consistently notified medical . . . of his medical problems."
Plaintiff alleges that Defendant Greenman was aware of Plaintiff's medical condition because she oversees medical care at the prison. Plaintiff further alleges that Greenman assumed Plaintiff suffered from tonsilitis without examining Plaintiff, and did not prescribe any treatment. Plaintiff alleges that Defendant Sudyadevera was aware of Plaintiff's medical needs but did not provide any treatment.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party
[a]lways 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).
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 does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. Rule 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, Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Matsushita, 475 U.S. at 588; County of Tuolumne v. Sonora Community Hosp., 263 F.3d 1148, 1154 (9th Cir. 2001).
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." Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). 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 the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). 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. 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 587 (citation omitted).
IV. Plaintiff's Motion for Summary Judgment
With regard to Plaintiff's motion for summary judgment, as the party with the burden of persuasion at trial, Plaintiff must establish "beyond controversy every essential element of its" his affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (quoting W. Schwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 14:124-127 (2001)). The moving party's evidence is judged by the same standard of proof applicable at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In order to prevail on a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, a plaintiff must show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 111 S.Ct. 2321, 2323 (1991).
The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 112 S.Ct. 995, 998 (1992); Wilson, 111 S.Ct. at 2323. Deliberate indifference is present "when prison officials deny, delay or intentionally interfere with medical treatment," or it may be shown "by the way . . . prison physicians provide medical care." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (cites omitted). While neither negligence nor medical malpractice is sufficient to violate the Eighth Amendment, a plaintiff is not required to show a complete failure to provide medical treatment. Rather, "deliberate indifference" may be shown by conduct amounting to a total failure to competently treat a serious medical condition, even if some treatment is prescribed. See, Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989).
In order to meet his burden, Plaintiff must come forward with evidence that establishes the lack of existence of a triable issue of fact. Plaintiff's evidence must establish, without dispute, that defendants knew of and disregarded a serious risk to Plaintiff's health, resulting in injury to Plaintiff. Plaintiff supports his motion with his own declaration, along with Exhibits 1 to 23, copies of relevant portions of his medical record and central file. As noted, the Court will consider the November 6, 2006, first amended complaint as an affidavit in support of Plaintiff's motion.
In his declaration, the only reference Plaintiff makes to either of the Defendants is his statement that "in interdisciplinary notes E. Greenman, CMO, acknowledges Plaintiff's throat, ear, and tonsil conditions and the orders of MRI and Ultrasound." (Pltf.'s Decl. ¶ 11.) Plaintiff refers to his Exhibit 19. This exhibit is a copy of the Interdisciplinary Progress Notes from January 9, 2008, signed by Defendant Greenman. These notes indicate that although an MRI was ordered it was unsuccessful due to Plaintiff's claustrophobia. It was later determined that an MRI would not be medically useful. The notes also indicate a "consistently normal thyroid function," and that Plaintiff was being referred for further evaluation by a surgeon before a further assessment could undertaken. There is nothing in Plaintiff's declaration that establishes that either Defendant knew of and disregarded a serious risk to Plaintiff's health. The declaration establishes, at most, a disagreement with the course of treatment. Mere difference of opinion between a prisoner and prison medical staff as to appropriate medical care does not give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
In his motion for summary judgment, Plaintiff argues, exhibit by exhibit, that Defendants were deliberately indifferent to his serious medical needs. The Court will analyze the exhibits in the order referred to by Plaintiff in his arguments.
Plaintiff refers to Exhibit 1, a copy of the Director's Level Appeal Decision of Plaintiff's inmate grievance, Log No. ASP 06-190. In this grievance, Plaintiff claims that he has not received treatment, and requested a consultation with an ear, nose and throat (ENT) specialist. The finding at the Director's Level indicated the following:
Although the ENT appointment was delayed beyond the 14 days allotted for an urgent referral, the appellant was examined by an ENT specialist on December 5, 2006. The appellant was prescribed medications for 15 days and a follow-up appointment was scheduled. The delay in treatment was a violation of the Inmate Medical Services Program (IMSP), Specialty Services policy; however, all attempts are being made by health care staff to comply with the Plata v. Schwarzenegger Stipulated Agreement. If a delay in specialty services is foreseen, health care staff are advised to schedule the appellant with his primary care physician every 30 days until the specialty service is completed. The appellant's concerns are noted; however, further intervention at the Director's Level of Review is not warranted.
(Pltf.'s Exh. 1.) This exhibit establishes, at most, that Plaintiff's ENT appointment was delayed and violated a state policy. Mere delay in medical treatment does not constitute deliberate indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985). A plaintiff must show the delay caused him serious harm. But see McGuckin, supra at 1060 (plaintiff not required to show "substantial harm"). In addition, a prisoner must show defendant knew aid was required, had the ability to render that aid, yet "sat idly by." Id. In other words, deliberate indifference is a function of the seriousness of prisoner plaintiff's medical needs and the wrongfulness of the defendant's actions in light of those needs. McGuckin, supra at 1061. Here, Plaintiff's evidence fails to establish that the delay in seeing an ENT specialist caused him injury.
Plaintiff refers to Exhibit 2 to establish that an urgent request for service for an ultrasound for his thyroid was submitted on December 27, 2007. Plaintiff argues that no ultrasound was conducted. Exhibit 2 is a copy of the Director's Level Appeal Decision of his inmate grievance, Log No. ASP-07-03281. The decision indicates that on December 27, 2007, an urgent request for an ultrasound was submitted. On January 25, 2008, Plaintiff was evaluated by Dr. Henry, who indicated Plaintiff's thyroid antibodies were insignificant and his thyroid function was normal. On May 3, 2008, a CAT scan revealed Plaintiff's thyroid gland was not enlarged, nor were there enlarged nodules or lymph nodes detected. Dr. Henry indicated that a referral to an endocrinologist was not medically necessary.
Plaintiff's Exhibit 2 does not establish evidence of deliberate indifference on the part of either of the named Defendants. Exhibit 2 establishes, at most, a difference of opinion over the course of treatment. "[W]here a defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances, plaintiff has failed to show deliberate indifference, as a matter of law." Jackson v. McIntosh, No. 94-16741 (9th Cir. Apr. 11, 1996), citing Estelle v. Gamble, 429 U.S. 97, 107-08 (1976). As Jackson continues, to "prevail under these principles, [a plaintiff] must show that the course of treatment the doctors chose was medically unacceptable under the circumstances." Id., citing Williams v. Vincent, 508 F.2d 541, 543-44 (2d Cir. 1974). Plaintiff has failed to offer any evidence in Exhibit 2 that meets this standard.
Plaintiff offers Exhibit 3 to support his argument that no MRI or ultrasound was provided. Exhibit 3 is a copy of the Director's Level Appeal Decision regarding Plaintiff's inmate grievance, Log Nos. ASP-07-00846 and ASP-07-02561. Plaintiff essentially argues the same thing as in the prior grievances - that he is not getting the medical care that has been ordered. The response in this grievance, as in grievance no. ASP-07-03281, indicates that, although the ultrasound and MRI was ordered in December of 2007, Plaintiff was evaluated by a surgeon on January 25, 2008, and it was determined that "no further work-up was indicated as the appellant's exam was completely normal." Nothing in Exhibit 3 in Exhibit 2, establish that Plaintiff's treatment was medically unacceptable under the circumstances.
Plaintiff offers Exhibit 4 in an attempt to establish that "licensed medical professionals" requested certain diagnostic tests in 2008. Plaintiff contends that there was no follow-up testing. Exhibit 4 is a copy of the Director's Level Decision in inmate grievance no. ASP-01-01741, requesting that the diagnostic orders of the primary care physician be followed. Exhibit 4 establishes that Plaintiff received health care as determined medically necessary by the primary care physician, including diagnostic testing and prescription medications.
Exhibits 5 and 6, Plaintiff's inmate grievance nos. ASP-01-09-12378 and ASP-01-10982, indicate that Plaintiff requested medical staff to treat and cure his condition. Exhibit 5 establishes that, at the Director's Level, it was found that Plaintiff received health care as determined medically necessary by the primary care physician, including diagnostic testing and prescription medications. The decision further advised Plaintiff that "there is no compelling evidence that warrants intervention at the Office of Third Level Appeals-Health Care, as you are receiving the treatment deemed medically necessary, including medications, surgical intervention and specialty services." Plaintiff was also advised that "only authorized health care staff shall be permitted, within the scope of their licensure, to diagnose ...