United States District Court, E.D. California
CRAIG M. KELLISON, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to the written consent of all parties, this case was before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is defendant's motion for summary judgment (Doc. 53). Plaintiff filed an opposition to the motion (Doc. 56), and defendant file his reply thereto (Doc. 61).
A. Plaintiff's Allegations
This case proceeds on plaintiff's original complaint (Doc. 1). In his complaint, plaintiff alleges he was diagnosed with Hepatitis C in 2007. While at Deuel Vocational Institute-Tracy Reception Center (DVI), on May 30, 2008, Dr. Melcher prescribed treatment for plaintiff's Hepatitis C, to start immediately, of Interferon/Ribavirin. He was again prescribed treatment of Interferon/Ribavirin by Dr. Tan on June 10, 2008. And again on October 3, 2008, plaintiff was prescribed treatment of Interferon/Ribavirin by Dr. Imperial and Pat Nachin, APRN. However, defendant Fox interfered with the treatment prescribed, and vetoed the treatment. The court, reading the complaint liberally, determined plaintiff's complaint states a claim for deliberate indifference in violation of the Eighth Amendment against Dr. Fox, interpreting plaintiff's claims as Dr. Fox deliberately interfering with the treatment prescribed plaintiff.
B. Defendant's Evidence
Defendant submitted a statement of undisputed fact in support of his motion for summary judgment. The statement of undisputed facts is supported by defendant's declaration, as well as declarations from Dr. Mendoza and defendant's attorneys of record, with attached exhibits, and a declaration from the custodian of medical records. The relevant evidence is summarized below:
Declaration of Defendant Fox
Dr. Fox declares he is the Chief Physician and Surgeon for Deuel Vocational Institution (DVI); in this position, Dr. Fox has both clinical and administrative duties including seeing patients, answering and signing inmate appeals, authorizing new medication orders, and performing small procedures, as well as chart reviews and auditing.
Dr. Fox states he found no documentation in plaintiff's medical file indicating he personally treated plaintiff between December 2007 and January 2009.
Dr. Fox further declares he did not approve any discontinuation order for Interferon and Ribavirin that he could find in the record, nor did he rescind any treatment plans for Interferon and Ribavirin established by specialists.
Dr. Fox states his name appears on the Medication Administration Records for the Ribavirin at Exhibit B because he was the Chief Medical Officer, and as such his name was sometimes substituted for that of the prescribing doctor. In addition, the Medication Administration Records simply records the medications an inmate is prescribed and receives; they are not used to order the discontinuation of a medicine.
Dr. Fox opined in his declaration that plaintiff's medical records evidenced numerous risk factors that weigh against treatment with Interferon and Ribavirin.
Plaintiff's medical records, dated May 30, 2008, show plaintiff was examined via telemedicine by Gregory P. Melcher, M.D., Clinical Professor of Medicine at UC Davis. Dr. Melcher diagnosed plaintiff with Chronic hepatitis C, Genotype 1a & 2b. His recommendation was to treat plaintiff as genotype 1, obtain a liver biopsy to determine the stage of the disease, which would indicate proper treatment. (Dr. Fox Declaration, Exhibits A-2, A-3).
Plaintiff's medical records dated October 3, 2008, show plaintiff was examined by Joanne Imperial, MD. Dr. Imperial's recommended orders included no liver biopsy, but treatment with Pegasys, Ribavirin, Polate, Tylenol, CDC, Heptimax, ...