Alls v. Friedman et al, No. 4:2005cv00901 - Document 41 (N.D. Cal. 2008)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO APPOINT COUNSEL by Judge Phyllis J. Hamilton denying 17 Motion to Appoint Counsel ; denying 19 Motion for Partial Summary Judgment; granting 31 Motion for Summary Judgment (Attachments: # 1 Certificate of Service) (nah, COURT STAFF) (Filed on 9/18/2008)
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Alls v. Friedman et al Doc. 41 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 SHAWN ALLS, Plaintiff, 7 8 9 11 For the Northern District of California United States District Court 10 No. C 05-0901 PJH (PR) v. M. FRIEDMAN, M.D.; J. WOODFORD, Director, CDCR; DR. AUNG; DR. LUCA; DR. FREDERICK, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO APPOINT COUNSEL Defendants. / (Docket Nos. 17, 19, 31) 12 13 14 Plaintiff, a California state prisoner currently incarcerated at the Correctional Training 15 Facility (“CTF”) at Soledad, has filed this pro se civil rights complaint alleging deliberate 16 indifference to medical needs. Plaintiff has filed a motion for partial summary judgment and 17 motion to appoint counsel, and defendants have filed a motion for summary judgment. The 18 court finds the matters suitable for decision without oral argument. For the reasons set 19 forth below, the court will grant defendants’ motion for summary judgment, and deny 20 plaintiff’s motion for partial summary judgment and motion for appointment of counsel. 21 22 PROCEDURAL HISTORY On January 12, 2005, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 in the 23 District Court for the Eastern District of California. The action was transferred to the 24 Central District, which then transferred the action to this court. On April 11, 2006, the court 25 dismissed the claims against defendant Frederick, and granted leave to amend the 26 complaint. Plaintiff filed an amended complaint on May 22, 2006. The court issued an 27 order of service on defendants Friedman, Woodford, Aung and Luca. Defendants filed a 28 motion to dismiss which the court granted in part, dismissing all claims against defendants 1 Friedman and Woodford, and dismissing the state tort claims against defendants Aung and 2 Luca. See Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss, 3 entered March 15, 2007 (doc. no. 12). Defendants Aung and Luca filed an amended 4 answer to the remaining claims in the amended complaint on March 29, 2007, and filed the 5 present motion for summary judgment on May 27, 2008. 6 7 on November 29, 2007. Plaintiff has also submitted to the court a “request for production of 8 documents” and a “motion for interrogatories.” To the extent that plaintiff seeks to compel 9 responses to his requests for discovery, such motion is denied in light of the court’s ruling 10 granting defendants’ motion for summary judgment. 11 For the Northern District of California United States District Court Plaintiff filed a motion for partial summary judgment and motion to appoint counsel STATEMENT OF FACTS 12 Plaintiff is a state prisoner serving a twenty-five years to life sentence on one count 13 of conspiracy to commit murder and one count of attempted murder. Feudale Decl. Ex. C. 14 During the time period from October 2002 to May 2003, plaintiff was incarcerated at CTF. 15 Id. Ex. B. 16 Defendant Htay Aung (“Dr. Aung”) is a physician who has served as a Physician and 17 Surgeon for the California Department of Corrections and Rehabilitation (CDCR) at CTF 18 since 2002. Aung Decl. ¶ 1. Defendant Nicolae Luca (“Dr. Luca”) has been a Physician 19 and Surgeon for the CDCR since 2001, and worked at CTF from 2002 to 2006. Luca Decl. 20 § 1. As of January 2007, defendant Luca has worked for CDCR’s Quality Management 21 Assessment Team. Id. § 2. 22 23 24 25 26 27 28 Plaintiff summarizes the facts supporting his claim as follows: In 2002 plaintiff had the fungus disease Valley Fever, though he did not know it. He suffered from chest pain, dry cough, headaches, fever, weight loss, loss of strength and aching bones. On 10-27-02 he passed out and was transported to the infirmary on an emergency mobile gurney complaining of chest pain. On 10-28-02 he was taken to the infirmary. Defendant Aung ordered an [sic] chest x-ray which showed no problem and prescribed antibiotics, antihistamines and Tylenols as treatment for a cold. Plaintiff’s condition worsened. He began vomiting, allegedly as a result of the antibiotics. He asserts that Dr. Aung’s decision to take the 2 1 2 3 4 5 6 7 8 easier course of treating plaintiff’s medical problem as a cold, rather than investigating further, was influenced by a state budget crisis which had resulted in pressure to cut cost. On October 29, 2002, plaintiff saw defendant Luca. He vomited several times in the course of the examination. Defendant Luca sent him to an outside hospital. At the hospital a tear in his “chest tissue” was found and blood in his urine, but apparently Valley Fever was not diagnosed. When he returned to the prison Defendant Luca found he was running a high fever and committed him to the infirmary for three days. On November 21, 2002 Defendant [Luca] diagnosed plaintiff with Valley Fever and began treatment [ketoconazole]. After two month[s] Defendant Luca took him off the treatment despite his pleas that he still had symptoms. Plaintiff asserts that [t]he lack of proper care and in particular Defendant Luca taking him off treatment too soon, was cause[d] by the state budget crisis. 9 ... 11 For the Northern District of California United States District Court 10 12 13 14 15 [In] May 2003 a biopsy was done [on] plaintiff[. T]he test reveal[ed] that the Valley Fever had spread. Plaintiff was prescribe[d] a different brand of medication to treat the Valley Fever (Difluca[n]). Plaintiff has been on this medication from May 2003-2008. I would like to note that the doctor will be removing off the medication within weeks based on the spinal tap results. Pl’s Brief in Opp. to Defs’ Sum. J. Mot. (doc. no. 36) at 2-3, 6. The record contains evidence that Valley Fever (coccidioidomycosis) is an unusual 16 disease which is not easily detected. Aung Decl. ¶ 12; Luca Decl. ¶ 3. Valley Fever is a 17 fungal disease contracted by breathing spores of the fungus coccidioides into one’s lungs. 18 Luca Decl. ¶ 3. An infected person may develop flu-like symptoms, and in some cases 19 joint aches or skin rashes may occur, but many infected individuals will have mild 20 symptoms or none at all, and only about one percent of infected patients will require 21 treatment for Valley Fever. Ibid. Valley Fever often requires a series of tests to be properly 22 diagnosed, often taking three or four weeks for test results to return before Valley Fever is 23 discovered. Aung Decl. ¶ 12. Valley Fever can be treated with or without oral antifungal 24 medications, which are recommended only for patients with severe disease activity due to 25 the possible harmful side effects, including liver toxicity, hepatitis, or even death. Ibid.; 26 Luca Decl. ¶ 4. 27 28 The record contains evidence that on his October 28, 2002, visit to the CTF medical 3 For the Northern District of California United States District Court 1 clinic, plaintiff complained of chest pains and cough with yellow phlegm. Aung Decl. ¶ 5; 2 Feudale Decl. Ex. E at 002. See Am. Compl., Attach. at 4. Dr. Aung pressed on plaintiff’s 3 chest to determine the source of pain, listened to plaintiff’s breathing and heartbeat and 4 observed that his chest sounded clear and his heartbeat was normal, and noted that 5 plaintiff was running a mild fever of 99.7 degrees, but his blood pressure, heart rate and 6 respiratory rate were within normal range. Aung Decl. ¶ 6. Dr. Aung did not observe any 7 serious medical condition but believed plaintiff may have had bronchitis, pneumonia or 8 possible inflammation of the bones and/or cartilage. Id. ¶ 7. Dr. Aung ordered chest x- 9 rays, which revealed on preliminary review that plaintiff had no acute infection in his lungs. 10 Id. ¶ 8; Feudale Decl. Ex. E at 005. Concerned about the mild fever and symptoms, 11 however, Dr. Aung treated plaintiff for possible bronchitis or walking pneumonia by 12 prescribing antibiotics (erythromycin), and prescribed Tylenol and Robitussin in an effort to 13 reduce plaintiff’s fever and suppress his cough. Aung Decl. ¶ 8; Feudale Decl. Ex. E at 14 004. Dr. Aung also ordered plaintiff to three days of bed rest. Aung Decl. ¶ 8. Based on 15 his review of plaintiff’s medical records over the past six years indicating multiple 16 complaints of chest pains and frequent urination, which are common symptoms of anxiety 17 or other mental disorders, Dr. Aung referred plaintiff for a mental health evaluation. Id. ¶ 9; 18 Feudale Decl. Ex E at 006. 19 On October 29, 2002, plaintiff returned to the CTF medical clinic for an emergency 20 visit and was seen by Dr. Luca. Luca Decl. ¶ 6. Dr. Luca states that plaintiff complained of 21 sharp chest pain, fast heartbeats, trouble lying on his left side, nausea, pain near his navel, 22 and vomiting. Ibid. Dr. Luca examined plaintiff and observed that he had a high fever, but 23 his chest was clear. Ibid. Dr. Luca ordered an electrocardiogram for plaintiff which came 24 back normal. Ibid. Dr. Luca ordered that plaintiff be taken to Natividad Hospital in Salinas, 25 where the attending physician ordered a catscan of plaintiff’s abdomen and chest x-ray, 26 both of which came back with normal results. Ibid.; Feudale Decl. Ex. E at 008-10. 27 28 On October 31, 2002, plaintiff returned to the CTF clinic for a follow up visit with Dr. 4 For the Northern District of California United States District Court 1 Luca. Luca Decl. ¶ 7. Plaintiff informed Dr. Luca that the hospital doctors found a small 2 tear in the muscle tissue in his chest. Ibid. When asked about exercise, plaintiff told Dr. 3 Luca that he ran about eighteen minutes every three days and did about 300 push-ups 4 twice a week. Ibid. Dr. Luca took a urinalysis, which showed no signs of blood in plaintiff’s 5 urine, but a physical examination revealed that plaintiff was running a high fever. Ibid. 6 Based on plaintiff’s symptoms and exercise history, Dr. Luca suspected that he could have 7 rhabdomyolisis, or muscle damage which causes release of proteins. Ibid. Dr. Luca 8 ordered that plaintiff be sent to the infirmary for three days and ordered a series of tests, 9 including another chest x-ray, metabolic panel, urine culture, blood culture, HIV-serology, 10 monospot test, ESR, RA-factor exam, and anti-nuclear antibodies test. Ibid. Dr. Luca 11 visited plaintiff each day he was in the infirmary. Ibid. Plaintiff was discharged on 12 November 2, 2002, with numerous possible diagnoses, including collagen disease, 13 polymyositis (muscle inflammation), lupus, coccidioidomycosis (Valley Fever), atrial 14 mixoma with renal microemboli (kidney disease), and HIV infection. Id. ¶ 8; Feudale Decl. 15 Ex. E at 042. When plaintiff was discharged, Dr. Luca asked him to come back for a follow 16 up visit on November 5, 2002. Luca Decl. ¶ 7. 17 At plaintiff’s follow up visit on November 5, 2002, Dr. Luca informed plaintiff that 18 some of the test results had come back, revealing that his chest and abdomen were clear, 19 heart was normal, and there was no swelling of his lungs. Luca Decl. ¶ 9. Dr. Luca also 20 informed plaintiff that blood was detected in his urine, his CPK (muscle tissue enzymes) 21 level was elevated, and an infiltrate (fuzzy image) appeared in an x-ray of his left lung. Ibid. 22 Dr. Luca confirmed that plaintiff had rhabdomyolisis, likely caused by doing push-ups. Ibid. 23 Based on the available results, Dr. Luca believed that plaintiff may have had collagen 24 disease or polymyositis, and asked plaintiff to return for another visit after the remaining 25 test results came in. Ibid. 26 On November 8, 2002, Dr. Luca discussed plaintiff’s condition with Dr. Aung, 27 including the infiltrate on the x-ray of plaintiff’s left lung. Luca Decl. ¶ 10; Aung Decl. ¶ 10. 28 Dr. Aung did not see plaintiff before plaintiff left the clinic that day, but confirmed with the 5 For the Northern District of California United States District Court 1 pharmacy that plaintiff had received the antibiotics that Dr. Aung had ordered. Aung Decl. 2 ¶ 10. Plaintiff explains that on November 8, 2002, Dr. Aung called him to the infirmary, but 3 because the infirmary was crowded and plaintiff did not know why Dr. Aung sent for him, 4 prison officials ordered plaintiff to leave, with the understanding that he would be called 5 back if necessary. Alls Decl. in Support of Pl’s Mot. Partial Sum. J. ¶ 5 (docket no. 20). 6 On November 12, 2002, plaintiff returned to the clinic to see Dr. Luca and 7 complained of cramps when waking up. Luca Decl. ¶ 11. Dr. Luca examined plaintiff and 8 noted that his chest was clear, heart beat was regular, and temperature was normal. Ibid. 9 At the time, Dr. Luca believed that plaintiff may have had inflammation of the muscles, 10 hematuria, collagen disease, or Valley Fever. Ibid. After the examination, Dr. Luca 11 prescribed the medication Augmenten to treat plaintiff’s lung infiltrate and asked him to 12 return for a follow up visit on November 21, 2002. Ibid.; Answer Ex. E at 048. 13 On his November 21, 2002, follow up visit to see Dr. Luca, plaintiff complained that 14 his chest was still bothering him. Luca Decl. ¶ 12; Answer Ex. E at 048. Dr. Luca informed 15 plaintiff that his blood test results had returned and revealed that he had contracted Valley 16 Fever. Luca Decl. ¶ 12. Dr. Luca advised plaintiff that he would be prescribed the 17 antifungal medication, ketoconazole (Nizoral), to take for six to nine months, starting with a 18 three month prescription, and ordered a liver function and cell count test to be performed at 19 a later date to check for possible toxicity to the medication. Ibid.; Answer Ex. E at 048-49. 20 On November 26, 2002, plaintiff told Dr. Luca that he felt fine physically, but was 21 worried about his diagnosis because he had been informed that Valley Fever could cause 22 boils and requested a body scan. Luca Decl. ¶ 13. Dr. Luca physically examined plaintiff, 23 and did not notice any lesions on his body; plaintiff’s spine appeared normal, his chest was 24 clear and no heart murmur was detected. Ibid. Dr. Luca also noted that plaintiff’s last 25 catscan, performed on October 29, 2002, was normal and decided not to order any further 26 imaging procedures. Ibid. Dr. Luca informed plaintiff that in this stage of the disease, other 27 doctors may elect not to prescribe antifungal medications because of their adverse side 28 effects, but that he prescribed the ketoconazole because Valley Fever is known to be more 6 1 aggressive in African American patients, such as plaintiff. Ibid. Plaintiff indicated that he 2 understood. Ibid. 3 4 test came back; Dr. Luca found that the test revealed that plaintiff had suffered significant 5 liver damage and had contracted chemical hepatitis due to the ketoconazole, as detected 6 by a threefold elevation of liver enzymes. Luca Decl. ¶ 14; Answer Ex. E at 055. Based on 7 medical literature which indicated that lung infections in healthy individuals, such as 8 plaintiff, can be managed without antifungal therapy, subject to close monitoring, Dr. Luca 9 planned to discontinue the antifungal medication, so long as plaintiff was feeling well. Luca 10 11 For the Northern District of California United States District Court On December 26, 2002, a lab report with the results of plaintiff’s recent liver function Decl. ¶ 14. On January 7, 2003, Dr. Luca saw plaintiff, who stated that he was feeling much 12 better, was always hungry, and had some pain above his navel. Luca Decl. ¶ 15. Upon 13 examination, Dr. Luca noted that plaintiff’s temperature was normal. Ibid. Dr. Luca states 14 that based on these observations and plaintiff’s toxicity to liver, he ordered that the 15 antifungal medication be discontinued and ordered another chest x-ray. Ibid. When Dr. 16 Luca told plaintiff that he would be taken off the antifungal medication, plaintiff stated that 17 he understood and did not protest or complain. Ibid. Plaintiff states that Dr. Luca informed 18 him that he was in remission, implying that plaintiff was not at any risk. Pl’s Opp. to Def. 19 Luca Decl. in Support of Mot. Sum. J. ¶ 3 (docket no. 38). 20 On February 11, 2003, plaintiff returned to the medical clinic complaining of swollen 21 lymph nodes in his groin area. Luca Decl. ¶ 16. Dr. Luca examined plaintiff and 22 determined that the lymph nodes were within normal size and were slightly swollen due to 23 an unrelated viral infection. Ibid. Dr. Luca informed plaintiff that his recent chest x-ray 24 results revealed that his chest was now normal. Ibid.; Answer Ex. E at 057. Dr. Luca also 25 noted that plaintiff had gained sixteen pounds in one month and had no fever. Luca Decl. ¶ 26 16. Dr. Luca believed that it was prudent to discontinue the antifungal therapy based on 27 the resolution of the infiltrate in plaintiff’s lung, his weight gain, and his liver toxicity. Ibid. 28 Dr. Luca informed plaintiff of his decision and told him to come in as needed; plaintiff stated 7 1 that he understood and agreed with Dr. Luca’s decision. Ibid. 2 3 who did not notice any progression of Valley Fever. Luca Decl. ¶ 17; Answer Ex. E at 060, 4 062. 5 On May 8, 2003, plaintiff was seen at the CTF medical clinic by Dr. Dayalan, who 6 detected a nodule on plaintiff’s left thigh and ordered a biopsy. Luca Decl. ¶ 18; Answer 7 Ex. E at 065, 069. The biopsy was conducted on May 12, 2003. Luca Decl. ¶ 18; Answer 8 Ex. E at 065-66. On May 19, 2003, the biopsy results revealed that the nodule tested 9 positive for Valley Fever, and Dr. Friederichs prescribed the antifungal medication 10 11 For the Northern District of California United States District Court On March 17, 2003, plaintiff was seen at the CTF medical clinic by Dr. Rosenthal, fluconazole (Diflucan). Luca Decl. ¶ 18; Answer Ex. E at 073-74. Dr. Luca states that after plaintiff’s visit on February 11, 2003, plaintiff did not return 12 to see him regarding renewed symptoms of Valley Fever or any other reason, and that if 13 Dr. Luca had been made aware that plaintiff was again experiencing symptoms of Valley 14 Fever, he would have resumed antifungal therapy. Luca Decl. ¶ 19. 15 16 STANDARD OF REVIEW Summary judgment is proper where the pleadings, discovery and affidavits show 17 that there is “no genuine issue as to any material fact and [that] the moving party is entitled 18 to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may 19 affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 21 reasonable jury to return a verdict for the nonmoving party. Ibid. 22 The moving party for summary judgment bears the initial burden of identifying those 23 portions of the pleadings, discovery and affidavits which demonstrate the absence of a 24 genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 25 Where the moving party will have the burden of proof on an issue at trial, it must 26 affirmatively demonstrate that no reasonable trier of fact could find other than for the 27 moving party. But on an issue for which the opposing party will have the burden of proof at 28 trial, the moving party need only point out “that there is an absence of evidence to support 8 1 the nonmoving party’s case.” Ibid. If the evidence in opposition to the motion is merely 2 colorable, or is not significantly probative, summary judgment may be granted. See Liberty 3 Lobby, 477 U.S. at 249-250. However, “self-serving affidavits are cognizable to establish a 4 genuine issue of material fact so long as they state facts based on personal knowledge and 5 are not too conclusory.” Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001); 6 see also Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (in equal 7 protection case, conclusory statement of bias not sufficient to carry nonmoving party’s 8 burden). For the Northern District of California United States District Court 9 Once the moving party meets its initial burden, the nonmoving party must go beyond 10 the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that 11 there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). A dispute about a material fact is 12 “genuine” if the evidence is such that a reasonable jury could return a verdict for the 13 nonmoving party. See Liberty Lobby, 477 U.S. at 248. If the nonmoving party fails to make 14 this showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 15 U.S. at 323. 16 At summary judgment, the judge must view the evidence in the light most favorable 17 to the nonmoving party: if evidence produced by the moving party conflicts with evidence 18 produced by the nonmoving party, the judge must assume the truth of the evidence set 19 forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 20 1152, 1158 (9th Cir. 1999). A court may not disregard direct evidence on the ground that 21 no reasonable jury would believe it. See ibid. (where nonmoving party’s direct evidence 22 raises genuine issues of fact but is called into question by other unsworn testimony, district 23 court may not grant summary judgment to moving party on ground that direct evidence is 24 unbelievable). The district court may not resolve disputed issues of material fact by 25 crediting one party’s version of events and ignoring another. Wall v. County of Orange, 364 26 F.3d 1107, 1111 (9th Cir. 2004). “By deciding to rely on the defendants’ statement of fact 27 [in deciding a summary judgment motion], the district court became a jury.” Ibid. But 28 “[w]hen opposing parties tell different stories, one of which is blatantly contradicted by the 9 For the Northern District of California United States District Court 1 record, so that no reasonable jury could believe it, a court should not adopt that version of 2 the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, -- U.S. 3 ----, 127 S. Ct. 1769, 1776-1777 (2007) (police officer entitled to summary judgment based 4 on qualified immunity in light of video evidence capturing plaintiff’s reckless driving in 5 attempting to evade capture which utterly discredits plaintiff’s claim that there was little or 6 no actual threat to innocent bystanders). 7 It is not the task of the district court to scour the record in search of a genuine issue 8 of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 9 has the burden of identifying with reasonable particularity the evidence that precludes 10 summary judgment. Ibid. If the nonmoving party fails to do so, the district court may 11 properly grant summary judgment in favor of the moving party. Ibid. See also Carmen v. 12 San Francisco Unified School District, 237 F.3d 1026, 1028-29 (9th Cir. 2001) (even if there 13 is evidence in the court file which creates a genuine issue of material fact, a district court 14 may grant summary judgment if the opposing papers do not include or conveniently refer to 15 that evidence). Although the district court has discretion to consider materials in the court 16 file not referenced in the opposing papers, it need not do so. Id. at 1029. 17 DISCUSSION 18 Plaintiff seeks partial summary judgment on his claims against Dr. Aung and Dr. 19 Luca alleging deliberate indifference to serious medical need. For the reasons further 20 discussed below, plaintiff fails to demonstrate that either Dr. Aung or Dr. Luca acted with 21 deliberate indifference, and plaintiff’s motion for partial summary judgment will be denied. 22 In the absence of a genuine issue of material fact as to the deliberate indifference claims, 23 defendants’ motion for summary judgment will be granted. 24 I. 25 Applicable Federal Law The Eighth Amendment requires that prison officials take reasonable measures to 26 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). 27 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 28 Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 10 1 U.S. 97, 104 (1976). A determination of “deliberate indifference” involves an examination 2 of two elements: the seriousness of the prisoner's medical need and the nature of the 3 defendant's response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 4 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 5 (9th Cir. 1997) (en banc). For the Northern District of California United States District Court 6 A “serious” medical need exists if the failure to treat a prisoner's condition could 7 result in further significant injury or the “unnecessary and wanton infliction of pain.” Ibid. 8 (citing Estelle, 429 U.S. at 104). The existence of an injury that a reasonable doctor or 9 patient would find important and worthy of comment or treatment; the presence of a 10 medical condition that significantly affects an individual's daily activities; or the existence of 11 chronic and substantial pain are examples of indications that a prisoner has a “serious” 12 need for medical treatment. Id. at 1059-1060. 13 A prison official is deliberately indifferent if she knows that a prisoner faces a 14 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 15 to abate it. Farmer, 511 U.S. at 837. A prison official cannot be held liable under the 16 Eighth Amendment for denying an inmate humane conditions of confinement unless the 17 standard for criminal recklessness is met, i.e., the official knows of and disregards an 18 excessive risk to inmate health or safety. Ibid. The official must both be aware of facts 19 from which the inference could be drawn that a substantial risk of serious harm exists and 20 have actually drawn the inference. Ibid. If a prison official should have been aware of the 21 risk, but was not, the official has not violated the Eighth Amendment, no matter how severe 22 the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 23 In order for deliberate indifference to be established, there must be a purposeful act 24 or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d 25 at 1060. A claim of mere negligence or harassment related to medical problems is not 26 enough to make out a violation of the Eighth Amendment. Gibson, 290 F.3d at 1188. See 27 also Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims 28 stemming from alleged delays in administering pain medication, treating broken nose and 11 1 providing replacement crutch, because claims did not amount to more than negligence); 2 O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy requests 3 for aspirins and antacids to alleviate headaches, nausea and pains is not constitutional 4 violation; isolated occurrences of neglect may constitute grounds for medical malpractice 5 but do not rise to level of unnecessary and wanton infliction of pain). 6 II. 7 to properly diagnose his illness as Valley Fever and initially treated it as a cold, in part 9 because of budget considerations, and that Dr. Luca ended the treatment prematurely 11 For the Northern District of California To support his deliberate indifference claims, plaintiff contends that Dr. Aung failed 8 10 United States District Court Analysis against plaintiff's protests, also because of budget considerations. In order to establish liability, plaintiff must demonstrate both the seriousness of his 12 medical need, and defendants’ deliberate indifference in response to that need. See 13 Estelle, 429 U.S. at 106. Defendants concede that plaintiff had a serious medical need, 14 based on his symptoms, the hindrance on plaintiff’s daily activities, the hospitalization 15 required by the illness, and the potentially harmful side-effects of the treatment, thus 16 satisfying the serious medical need requirement for liability. As to the deliberate 17 indifference requirement, however, plaintiff has not demonstrated that either Dr. Aung or 18 Dr. Luca knew of a significant risk of harm to plaintiff and consciously disregarded that risk. 19 Farmer, 511 U.S. at 837, 839. 20 A. 21 Plaintiff alleges that when he was seen by Dr. Aung on October 28, 2002, he Dr. Aung 22 complained of chest pains, dry cough, headaches, and bone aches. Am. Compl., Attach. at 23 4. Plaintiff contends that Dr. Aung should have ordered a blood test, admitted plaintiff or 24 ordered a follow-up, but instead treated plaintiff’s symptoms as a cold and referred him for 25 mental evaluation. Pl’s St. Disputed Factual Issues ¶¶ 2, 3. Plaintiff further contends that 26 Dr. Aung provided inadequate medical care due to budget concerns. Alls Decl. in Support 27 28 of Pl’s Mot. Partial Sum. J. ¶ 1. However, the record contains uncontested evidence that 12 1 For the Northern District of California United States District Court 2 Dr. Aung treated plaintiff and prescribed medication on October 28, 2002. Viewing the facts in the light most favorable to plaintiff, the record demonstrates that 3 Dr. Aung treated plaintiff for possible bronchitis or pneumonia, as well as cough and fever, 4 based on available test results and observable symptoms before a blood test determined 5 conclusively that plaintiff had Valley Fever about three and a half weeks later. There is no 6 genuine issue of material fact as to whether Dr. Aung knew of and deliberately disregarded 7 the substantial risk of serious harm to plaintiff’s health when he treated plaintiff on October 8 28, 2002. Plaintiff’s lay opinion disagreeing with the course of treatment prescribed by Dr. 9 Aung does not raise a triable issue. See Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 10 1981); Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004). Furthermore, the 11 evidence contradicts plaintiff’s allegation that Dr. Aung was motivated merely by pressure 12 to cut costs: Dr. Aung ordered a chest x-ray, prescribed three medications to treat plaintiff’s 13 symptoms, including antibiotics for possible bronchitis or pneumonia, and referred plaintiff 14 for a mental health evaluation to rule out mental disorders because of his multiple 15 complaints about his health over the past six years. Cf. Jones v. Johnson, 781 F.2d 769, 16 771 (9th Cir. 1986) (where record contained no explanation for denying surgery other than 17 budget concerns, failure to treat solely due to budgetary constraints is adequate to allege 18 deliberate indifference). Thus, in the absence of a genuine issue of material fact, Dr. Aung 19 is entitled to summary judgment on plaintiff’s claim of deliberate indifference. 20 As the evidence does not establish that Dr. Aung was deliberately indifferent to 21 plaintiff’s medical needs, plaintiff’s motion for partial summary judgment on this claim will be 22 denied. 23 B. Dr. Luca 24 Plaintiff alleges that Dr. Luca intentionally disregarded plaintiff’s serious medical 25 needs and personal safety by taking him off the antifungal medication prematurely, due to 26 pressure to cut costs. Am. Compl., Attach. at 8. Viewing the evidence in the light most 27 favorable to plaintiff, there is no evidence to indicate that Dr. Luca’s decision to discontinue 28 the antifungal treatment amounted to deliberate indifference to plaintiff’s condition. At 13 For the Northern District of California United States District Court 1 plaintiff’s November 21, 2002, visit to the CTF medical clinic, Dr. Luca informed him of the 2 blood tests indicating Valley Fever, and advised him that he would prescribe a six to nine 3 month course of antifungal medication, subject to testing for side effects of liver toxicity. 4 When a lab report on plaintiff’s liver enzyme level revealed liver damage and chemical 5 hepatitis, Dr. Luca decided to discontinue the antifungal treatment and manage the Valley 6 Fever without antifungal therapy. Before discontinuing the antifungal medication, Dr. Luca 7 examined plaintiff on January 7, 2003 and noted that plaintiff stated that he was feeling 8 much better, was always hungry, and had normal temperature. Plaintiff complained of 9 some pain above his navel, and Dr. Luca ordered another chest x-ray. Dr. Luca saw 10 plaintiff again on February 11, 2003, and advised plaintiff of his decision to discontinue the 11 antifungal therapy. Dr. Luca’s course of treatment demonstrates that he responded 12 reasonably to plaintiff’s medical needs under the circumstances, “even if the harm 13 ultimately was not averted.” Farmer, 511 U.S. at 844. Even assuming as true plaintiff’s 14 allegations that Dr. Luca discontinued plaintiff’s antifungal medication “despite his pleas 15 that he still had symptoms,” Dr. Luca acted reasonably in light of plaintiff’s liver toxicity, and 16 addressed plaintiff’s complaints of pain by ordering another chest x-ray, which revealed that 17 his chest was normal and that the infiltrate in his left lung was resolved. 18 There is no evidence to support plaintiff’s allegation that Dr. Luca’s decision to 19 discontinue the ketoconazole was due to budgetary constraints, rather than a medical 20 decision to treat plaintiff without antifungal medication based on the onset of liver damage 21 and indications that plaintiff’s health had otherwise improved. Cf. Jones, 781 F.2d at 771. 22 Plaintiff’s allegation that Dr. Luca prescribed ketoconazole instead of Diflucan in order to 23 save money does not raise a triable issue as to deliberate indifference in light of plaintiff’s 24 admission that “ketoconazole is the oldest of the three approved oral anti-fungal 25 medications.” A difference of opinion between a prisoner-patient and prison medical 26 authorities over which medication to prescribe does not give rise to a deliberate indifference 27 claim. See Franklin, 662 F.2d at 1344. 28 14 1 2 work to ensure the level of the Valley Fever did not increase,” such allegations may 3 establish, at most, negligence, but do not establish that Dr. Luca knew of a substantial risk 4 of serious harm and disregarded that risk. Farmer, 511 U.S. at 835 (“Estelle establishes 5 that deliberate indifference entails something more than mere negligence”). For the Northern District of California 6 United States District Court To the extent that plaintiff alleges that Dr. Luca failed “to continue to do follow up lab In the absence of a material issue of fact that Dr. Luca was deliberately indifferent to 7 plaintiff’s serious medical needs, Dr. Luca is entitled to summary judgment on plaintiff’s 8 claims. As the evidence does not establish that Dr. Luca was deliberately indifferent to 9 plaintiff’s medical needs, plaintiff’s motion for partial summary judgment on this claim will be 10 denied. Because the court has decided the merits of plaintiff’s claims, the court will not 11 reach defendants’ qualified immunity argument. 12 13 Furthermore, plaintiff’s motion for appointment of counsel is denied. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 14 CONCLUSION 15 For the foregoing reasons, the court orders as follows: 16 Defendants’ motion for summary judgment is GRANTED. (Docket no. 31.) 17 Plaintiff’s motion for partial summary judgment is DENIED. (Docket no. 19.) 18 Plaintiff’s motion for appointment of counsel is DENIED. (Docket no. 17.) 19 The clerk of the court shall enter judgment in favor of defendants and against 20 21 plaintiff, terminate all pending motions and close the file. IT IS SO ORDERED. 22 23 Dated: September 18, 2008. PHYLLIS J. HAMILTON United States District Judge 24 25 26 G:\PRO-SE\PJH\CR.05\ALLS901.MSJ.wpd 27 28 15