(PC) Green v. Church ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WARREN CLEVELAND GREEN, No. 2:18-cv-1931 WBS KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DR. G. CHURCH, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks relief 19 pursuant to 42 U.S.C. § 1983. The motion for summary judgment filed by defendant Dr. Agarwal 20 is before the court.1 As discussed below, defendant’s motion should be granted. 21 II. Plaintiff’s Allegations 22 In his verified second amended complaint, plaintiff alleges that from 2016 through 2019, 23 he has been allowed to suffer with a bacteria/host/parasite in the skin on his face and scalp, which 24 can be seen when shaven off, and that defendant Dr. Agarwal refused to send plaintiff to an 25 outside hospital to solve this serious medical need when prescribed treatments failed. Plaintiff’s 26 new doctor, Dr. Farhat, plans to have plaintiff see a dermatologist in person rather than via 27 28 1 Defendant Akintola was dismissed on June 6, 2019. (ECF Nos. 20, 29.) 1 telemedicine. Plaintiff states that “the parasite grows every day, it burns, itches, it’s irritating,” 2 and his “internal organs hurt and suffer, too.” (ECF No. 19 at 3.) Liberally construed, plaintiff 3 argues that Dr. Agarwal’s delay in care subjected plaintiff to additional pain and suffering, as well 4 as further potential harm due to his paralysis (ECF No. 19 at 8).2 Plaintiff seeks money damages, 5 as well as an order transferring him out of the California Health Care Facility to Ironwood State 6 Prison or some other state prison. 7 III. Preliminary Matters 8 A. Plaintiff’s Request for Summary Judgment 9 In his opposition, plaintiff claims he is also moving for summary judgment and should be 10 granted summary judgment in light of the 2020 Quest Diagnostics report. However, plaintiff’s 11 opposition is not a properly-filed motion or cross-motion for summary judgment and does not 12 comply with the requirements of Rule 56 of the Federal Rules of Civil Procedure or Local Rule 13 260(b). Due to such deficiencies, the undersigned declines to construe plaintiff’s unverified 14 statements in his opposition as a motion for summary judgment. 15 B. Plaintiff’s Sur-Reply 16 Plaintiff filed a response to defendant’s reply, and defendant filed a motion to strike the 17 response as an unauthorized sur-reply. 18 The Local Rules do not authorize the routine filing of a sur-reply. Nevertheless, when a 19 party has raised new arguments or presented new evidence in a reply to an opposition, the court 20 may permit the other party to counter the new arguments or evidence. El Pollo Loco v. Hashim, 21 316 F.3d 1032, 1040-41 (9th Cir. 2003). 22 Here, in his reply, defendant presented the declaration of Dr. Adams to rebut the 2020 23 Quest Diagnostics report finding Alternaria relied upon by plaintiff in his opposition. Thus, 24 despite plaintiff’s failure to seek leave of court to file a sur-reply is excused, and plaintiff’ sur- 25 reply is allowed and has been considered in addressing the instant motion. Defendant’s motion to 26 strike is denied. 27 2 Plaintiff is a paraplegic as a result of a gunshot wound suffered prior to his incarceration. (ECF 28 No. 44-3 at 6-7 (Pl.’s Dep.).) 1 IV. Legal Standard for Summary Judgment 2 Summary judgment is appropriate when it is demonstrated that the standard set forth in 3 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 4 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 5 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 6 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 7 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 8 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 9 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 11 56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need 12 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 13 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 14 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory 15 Committee Notes to 2010 Amendments (recognizing that “a party who does not have the trial 16 burden of production may rely on a showing that a party who does have the trial burden cannot 17 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 18 should be entered, after adequate time for discovery and upon motion, against a party who fails to 19 make a showing sufficient to establish the existence of an element essential to that party’s case, 20 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 21 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 22 necessarily renders all other facts immaterial.” Id. at 323. 23 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 24 the opposing party to establish that a genuine issue as to any material fact actually exists. See 25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 26 establish the existence of such a factual dispute, the opposing party may not rely upon the 27 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 28 form of affidavits, and/or admissible discovery material in support of its contention that such a 1 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 2 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 3 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 4 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 5 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 6 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 7 (9th Cir. 1987). 8 In the endeavor to establish the existence of a factual dispute, the opposing party need not 9 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 10 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 11 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 12 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 13 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 14 amendments). 15 In resolving a summary judgment motion, the court examines the pleadings, depositions, 16 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 17 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 18 255. All reasonable inferences that may be drawn from the facts placed before the court must be 19 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 20 are not drawn out of the air, and it is the opposing party’s obligation to produce a factual 21 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 22 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 23 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 24 some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 25 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 26 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 27 By notice filed March 27, 2020 (ECF No. 44 at 2), plaintiff was advised of the 28 requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil 1 Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. 2 Eikenberry, 849 F.2d 409 (9th Cir. 1988). 3 V. The Civil Rights Act 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 11 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 12 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 13 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 14 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 15 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 16 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 17 588 F.2d 740, 743 (9th Cir. 1978). 18 VI. Undisputed Facts3 (“UDF”) 19 1. Plaintiff is housed at the California Healthcare Facility (“CHCF”) in Stockton, 20 California, at all times relevant herein. (ECF No. 44-3 at 7 (Pl.’s Dep.).) Defendant, Dr. J. 21 Argawal, was employed as a doctor at CHCF at all times relevant herein. (ECF No. 19 at 2.) 22 2. Plaintiff is not and has not been a medical doctor. (ECF No. 44-3 at 5 (Pl.’s Dep.).) 23 3. Plaintiff is not and has not been a nurse. (ECF No. 44-3 at 5 (Pl.’s Dep.).) 24 4. Plaintiff is not and has not been a physician’s assistant, and has had no formal medical 25 training. (ECF No. 44-3 at 6 (Pl.’s Dep.).) 26 //// 27 28 3 For purposes of summary judgment, the undersigned finds these facts are undisputed. 1 5. Plaintiff claims he developed a skin condition that was triggered by the use of shampoo 2 given to him in 2016. (ECF No. 44-3 at 9 (Pl.’s Dep.).) 3 6. The shampoo was prescribed by Physician Assistant (PA) Akintola. (ECF No. 44-3 at 4 9-10 (Pl.’s Dep.).) 5 7. PA Akintola prescribed the shampoo to address plaintiff’s claim of scalp itchiness. 6 (ECF No. 44-3 at 10 (Pl.’s Dep.).) 7 8. Plaintiff used the shampoo from December 19, 2016, until it ran out on March 27, 8 2017. (ECF No. 44-3 at 11 (Pl.’s Dep.).) 9 9. While plaintiff was using the shampoo, it was helping with the itchiness of his scalp. 10 (ECF No. 44-3 at 11 (Pl.’s Dep.).) 11 10. Defendant did not prescribe the shampoo. (ECF No. 44-3 at 11 (Pl.’s Dep.).) 12 11. On August 17, 2017, defendant first saw plaintiff, who complained of itching over the 13 scalp going on for the last month, and stated he had used an antifungal shampoo without 14 improvement. (ECF No. 44-3 at 46-47 (Pl.’s Dep.).) 15 12. Defendant examined plaintiff’s scalp on August 17, 2017, and plaintiff testified that 16 the doctor’s “assessment was basically that he didn’t see nothing. Everything was normal.” 17 (ECF No. 44-3 at 47 (Pl.’s Dep.).) 18 13. Defendant assessed the condition of pruritus, and started plaintiff on hydrocortisone 19 cream. (ECF No. 44-3 at 112 (Ex. 11).) 20 14. Defendant saw plaintiff next on November 16, 2017. (ECF No. 44-3 at 52 (Pl.’s 21 Dep.).) 22 15. On December 6, 2017, defendant next saw plaintiff, who wanted alcohol prep for 23 cleaning the skin on his face. (ECF No. 44-3 at 52-53 (Pl.’s Dep.).) 24 16. On January 31, 2018, defendant next saw plaintiff, who was concerned about a fungal 25 infection of his facial and forehead skin. (ECF No. 44-3 at 53 (Pl.’s Dep.).) 26 17. At the January 31, 2018 appointment, plaintiff was concerned a fungal infection 27 might be invading his blood stream and causing body aches. (ECF No. 44-3 at 53-54 (Pl.’s 28 Dep.).) 1 18. Defendant noted skin pruritus and, to rule out a fungal infection, ordered a fungus 2 culture. (ECF No. 44-3 at 55 (Pl.’s Dep.); 114-15 (Ex. 13).) 3 19. On February 1, 2018, defendant used a scalpel to scrape a sample from plaintiff’s 4 neck and sent it to the lab for a skin culture for fungus. (ECF No. 44-3 at 14-16 (Pl.’s Dep.); 5 (ECF No. 44-3 at 85 (Ex. 2).) 6 20. On February 13, 2018, defendant next saw plaintiff, who claimed he was more 7 concerned about the fungal infection growing into his blood. (ECF No. 44-3 at 56 (Pl.’s Dep.); 8 116-17 (Ex. 14).) 9 21. Plaintiff had no fever on February 13, 2018. (ECF No. 44-3 at 57 (Pl.’s Dep.).) 10 22. At that time, plaintiff was seriously concerned about his blood getting infected by the 11 fungus growing on his face, so defendant ordered blood work done which showed no infection. 12 (ECF No. 44-3 at 57-58 (Pl.’s Dep.); ECF No. 44-3 at 116-17 (Ex. 14).) 13 23. On February 13, 2018, defendant informed plaintiff that it is unlikely that fungus is 14 growing in his bloodstream, and that the fungal culture was pending. (ECF No. 44-3 at 58 (Pl.’s 15 Dep.); ECF No. 44-3 at 116-17 (Ex. 14).) 16 24. Defendant next saw plaintiff on February 20, 2018, as a follow-up after plaintiff 17 visited the SEMS (emergency room of medical facility) four days earlier. (ECF No. 44-3 at 58- 18 59 (Pl.’s Dep.); (ECF No. 44-3 at 118 (Ex. 15).) 19 25. On February 20, 2018, plaintiff told defendant that plaintiff keeps shaving away the 20 thick skin and collects it to show it to others, and that he was sure this is growing in his blood. 21 (ECF No. 44-3 at 59-60 (Pl.’s Dep.); (ECF No. 44-3 at 118 (Ex. 15).) 22 26. Plaintiff had no fever, itching, or rash at that time. (ECF No. 44-3 at 60 (Pl.’s Dep.).) 23 27. Plaintiff claims that what he was shaving off his face was not skin and is constantly 24 trying to get analyzed what he has placed into a specimen cup. (ECF No. 44-3 at 60 (Pl.’s Dep.).) 25 28. On February 20, 2018, defendant informed plaintiff that his blood work and culture 26 showed no evidence of a systemic fungal infection. (ECF No. 44-3 at 61 (Pl.’s Dep.); ECF No. 27 44-3 at 116-17 (Ex. 14).) 28 //// 1 29. Defendant next saw plaintiff on February 28, 2018, at which time he gave plaintiff the 2 results from the fungal culture. (ECF No. 44-3 at 61 (Pl.’s Dep.); (ECF No. 44-3 at 119 (Ex. 16).) 3 30. A Quest Diagnostics report on the scraping by defendant noted “no fungal elements 4 seen.” (ECF No. 44-3 at 17-18 (Pl.’s Dep.); (ECF No. 44-3 at 86 (Ex. 3).) 5 31. The Mycology report of the February 1, 2018 scraping by Dr. Agarwal indicated “no 6 fungal growth at four weeks.” (ECF No. 44-3 at 18-19 (Pl.’s Dep.); (ECF No. 44-3 at 87 (Ex. 4).) 7 32. While plaintiff contends he did not see anything on the scalpel when defendant did 8 the scalpel scraping, the Quest Diagnostic report indicated that the specimen quality was 9 adequate. (ECF No. 44-3 at 19-20 (Pl.’s Dep.); (ECF No. 44-3 at 86 (Ex. 3).) 10 33. Defendant next saw plaintiff on March 27, 2018. (ECF No. 44-3 at 62 (Pl.’s Dep.); 11 (ECF No. 44-3 at 120 (Ex. 17).) 12 34. On March 27, 2018, plaintiff told defendant that plaintiff continued to believe he was 13 oozing out fungus infection from the pores of his facial skin. (ECF No. 44-3 at 63 (Pl.’s Dep.); 14 (ECF No. 44-3 at 120 (Ex. 17).) 15 35. Plaintiff saw Dr. S. Hillman, physician and surgeon, on April 18, 2018, to talk about 16 plaintiff’s facial rash. (ECF No. 44-3 at 64 (Pl.’s Dep.); (ECF No. 44-3 at 121 (Ex. 19).) 17 36. Dr. Hillman noted there is no evidence of fungal nature, but because plaintiff was 18 fixated on the idea that he has fungus on his face, ordered clotrimazole, which is a fungicidal, on 19 the basis that if it did not work, it would be one more piece of evidence against fungus. (ECF No. 20 44-3 at 65-66 (Pl.’s Dep.); (ECF No. 44-3 at 121 (Ex. 19).) 21 37. Plaintiff tried the clotrimazole and it had no effect. (ECF No. 44-3 at 66 (Pl.’s Dep.).) 22 38. Defendant saw plaintiff again on May 17, 2018,4 for complaints of eruptions over his 23 facial skin and his skin scrapings when he shaved. (ECF No. 44-3 at 66-67 (Pl.’s Dep.).) 24 39. At the May 17, 2018 appointment, defendant requested a referral for plaintiff to see a 25 dermatologist, principle diagnosis listed as “facial dermatitis failed multiple treatments,” and the 26 27 4 In his separate statement (ECF No. 44-2 at 4), defendant uses the date May 7, 2018, but the sources cited confirm the date was May 17, 2018. 28 1 request was approved on May 25, 2018. (ECF No. 44-3 at 23, 67 (Pl.’s Dep.); (ECF No. 44-3 at 2 88 (Ex. 5).) 3 40. In response to defendant’s request for plaintiff to see a dermatologist, on July 11, 4 2018, plaintiff was seen by dermatologist Dr. Hrabko, via teledermatology camera. (ECF No. 44- 5 3 at 23, 24, 67 (Pl.’s Dep.); (ECF No. 44-3 at 89 (Ex. 6).) 6 41. Dr. Hrabko diagnosed plaintiff with Seborrheic dermatitis. (ECF No. 44-3 at 24 (Pl.’s 7 Dep.); (ECF No. 44-3 at 89 (Ex. 6).) 8 42. Dr. Hrabko prescribed ketoconazole cream applied twice daily, indefinitely for the 9 rest of plaintiff’s life, based on his diagnosis of seborrheic dermatitis. (ECF No. 44-3 at 24-25 10 (Pl.’s Dep.); (ECF No. 44-3 at 89 (Ex. 6).) 11 43. Dr. Hrabko spent time trying to explain to plaintiff that seborrheic dermatitis is not 12 something that they can cure or will go away and be gone.5 (ECF No. 44-3 at 25 (Pl.’s Dep.); 13 (ECF No. 44-3 at 89 (Ex. 6).) 14 44. In Discharge Documentation dated July 11, 2018, Registered Nurse Riley provided 15 plaintiff with 11 pages of education materials on seborrheic dermatitis, which information 16 plaintiff read. (ECF No. 44-3 at 25-26 (Pl.’s Dep.); (ECF No. 44-3 at 90 (Ex. 7).) 17 45. The education materials provided to plaintiff on July 11, 2018, indicates that the 18 cause of seborrheic dermatitis is not known. (ECF No. 44-3 at 27 (Pl.’s Dep.); (ECF No. 44-3 at 19 90 (Ex. 7).) 20 46. Plaintiff was informed in the materials provided by Dr. Hrabko on July 11, 2018, that 21 there is no cure for seborrheic dermatitis. (ECF No. 44-3 at 29 (Pl.’s Dep.); (ECF No. 44-3 at 90 22 (Ex. 7).) 23 47. The materials provided by Dr. Hrabko on July 11, 2018, advised that treatment, 24 including Cortisone ointments, creams, lotions, and over-the-count and prescription shampoos, 25 5 In his deposition, plaintiff testified that he did not remember Dr. Hrabko “saying all of this,” 26 and the doctor “[m]aybe wrote this down on his paper, . . . but [plaintiff] didn’t have this long 27 conversation with [Dr. Hrabko].” (ECF No. 44-3 at 25 (Pl.’s Dep.).) In light of plaintiff’s admitted receipt of the written materials (UDF 44), the undersigned does not find the length of 28 time the doctor may have spent explaining this to be a material dispute of fact. 1 can help to manage the condition. (ECF No. 44-3 at 47-48 (Pl.’s Dep.); (ECF No. 44-3 at 90 (Ex. 2 7).) 3 48. Plaintiff has had most or all of the symptoms of seborrheic dermatitis contained in the 4 education materials plaintiff was provided with and read on July 11, 2018, including at the time 5 he was diagnosed with the condition by Dr. Hrabko on July 11, 2018. (ECF No. 44-3 at 29 (Pl.’s 6 Dep.); (ECF No. 44-3 at 90 (Ex. 7).) 7 49. Plaintiff was told that he had seborrheic dermatitis on July 11, 2018, that there was no 8 cure, and what the treatment would be, evidenced by his signature on the materials provided in 9 the Discharge Documentation. (ECF No. 44-3 at 30 (Pl.’s Dep.); (ECF No. 44-3 at 90 (Ex. 7).) 10 50. The day after his dermatology appointment, plaintiff saw defendant on July 12, 2018, 11 to discuss the dermatologist’s findings, namely seborrheic dermatitis. (ECF No. 44-3 at 67, 68 12 (Pl.’s Dep.); (ECF No. 44-3 at 123 (Ex. 20).) 13 51. Defendant started plaintiff on nystatin as recommended by Dr. Hrabko. (ECF No. 44- 14 3 at 69-70 (Pl.’s Dep.).) 15 52. Defendant again referred plaintiff for a dermatology appointment set for September 1, 16 2018, but plaintiff refused the appointment. (ECF No. 44-3 at 43-44 (Pl.’s Dep.).) At his 17 deposition, plaintiff explained that it was not an “actual refusal,” because he does not refuse 18 appointments, but rather there is usually a reason, for example, he is in too much pain, or has 19 another problem and “didn’t make it there.” (Id. at 44.) 20 53. Defendant next saw plaintiff on September 5, 2018, at which time plaintiff indicated 21 his skin condition had not changed and he wanted to be admitted to a hospital for a second 22 opinion. (ECF No. 44-3 at 70 (Pl.’s Dep.); (ECF No. 44-3 at 124 (Ex. 21).) 23 54. On September 5, 2018, defendant noted plaintiff had a follow-up appointment with a 24 dermatologist later that month and advised him to discuss it with the dermatologist then. (ECF 25 No. 44-3 at 71 (Pl.’s Dep.); (ECF No. 44-3 at 124 (Ex. 21).) 26 55. In an appointment with Nurse Ybarra on September 18, 2018, plaintiff advised that he 27 did not believe the diagnosis of a dermatologist who diagnosed him with dermatitis. (ECF No. 28 44-3 at 49-50 (Pl.’s Dep.); (ECF No. 44-3 at 113 (Ex. 12).) In his deposition, plaintiff explained 1 that at first he went with the dermatitis diagnosis, but after reading about dermatitis, believed his 2 problem was not dermatitis because it is “worse than that. I’m getting some germ out of my 3 pores,” different from a rash. (ECF No. 44-3 at 49.) Plaintiff now believed that the shampoo was 4 entering his pores and getting into his body and the germ is causing a systemic infection, “doing 5 damage now, . . . but it’s not an infection that’s going to kill me right away.” (ECF No. 44-3 at 6 49-50 (Pl.’s Dep.); (ECF No. 44-3 at 113 (Ex. 12).) 7 56. Nurse Ybarra’s examination on September 18, 2018, found no lesions or any other 8 impairments of skin integrity. (ECF No. 44-3 at 50-51 (Pl.’s Dep.); (ECF No. 44-3 at 113 (Ex. 9 12).) 10 57. On September 18, 2018, Nurse Ybarra made mental health referrals for plaintiff 11 because of his delusion that he would not accept what the doctors were saying. (ECF No. 44-3 at 12 51 (Pl.’s Dep.); (ECF No. 44-3 at 113 (Ex. 12).) 13 58. Defendant saw plaintiff next on October 1, 2018, in plaintiff’s cell because plaintiff 14 refused to come out. (ECF No. 44-3 at 71, 72 (Pl.’s Dep.); (ECF No. 44-3 at 125-26 (Ex. 22).) 15 59. Plaintiff had refused a dermatology appointment and refused to accept blood test 16 results, which showed he had no infection, instead insisting that he had a generalized blood 17 infection due to skin fungal infection spreading to his body via blood. (ECF No. 44-3 at 72-73 18 (Pl.’s Dep.); (ECF No. 44-3 at 125-26 (Ex. 22).) 19 60. Defendant informed plaintiff on October 1, 2018, that there was no indication that he 20 had an ongoing bloodstream infection and there was no reason to send him to the hospital. (ECF 21 No. 44-3 at 74 (Pl.’s Dep.); (ECF No. 44-3 at 125-26 (Ex. 22).) 22 61. Defendant saw plaintiff next on October 9, 2018, with an addendum on October 11, 23 2018, where plaintiff was concerned about a bloodstream infection, and defendant informed 24 plaintiff he did not have a bloodstream infection because his blood tests showed no evidence of 25 infection and he had no clinical features of infection. (ECF No. 44-3 at 74-75 (Pl.’s Dep.); (ECF 26 No. 44-3 at 127 (Ex. 23).) 27 62. Because plaintiff had refused a dermatologist appointment, defendant ordered another 28 appointment. (ECF No. 44-3 at 75 (Pl.’s Dep.); (ECF No. 44-3 at 127 (Ex. 23).) 1 63. Plaintiff saw defendant again on October 31, 2018, when plaintiff complained that his 2 fungal infection had not gotten any better and had stopped using the ketoconazole recommended 3 by the dermatologist. (ECF No. 44-3 at 75-76 (Pl.’s Dep.); (ECF No. 44-3 at 128 (Ex. 24).) 4 64. Defendant told plaintiff he needed to continue using the ketoconazole because the 5 dermatologist had instructed him to. (ECF No. 44-3 at 76-77 (Pl.’s Dep.).) 6 65. Plaintiff’s next dermatology appointment was with Dr. Hrabko on November 9, 2018, 7 again via teledermatology camera. (ECF No. 44-3 at 75 (Pl.’s Dep.); (ECF No. 44-3 at 101 (Ex. 8 8).) 9 66. Dr. Hrabko again diagnosed seborrheic dermatitis and angular cheilitis. (ECF No. 44- 10 3 at 31 (Pl.’s Dep.); (ECF No. 44-3 at 101 (Ex. 8).) 11 67. Dr. Hrabko prescribed ketoconazole cream and nystatin cream for Green’s seborrheic 12 dermatitis. (ECF No. 44-3 at 32 (Pl.’s Dep.); (ECF No. 44-3 at 102 (Ex. 9).) 13 68. In plaintiff’s second visit with Dr. Hrabko on November 9, 2018, he was again given 14 education materials on seborrheic dermatitis indicating the cause is not known, listing the 15 symptoms which were the same symptoms from his July 11, 2018 visit which plaintiff agreed he 16 had, that there was no cure, and that treatment can help to manage symptoms. (ECF No. 44-3 at 17 33-34 (Pl.’s Dep.); (ECF No. 44-3 at 102 (Ex. 9).) 18 69. Plaintiff signed as having received the education materials on November 9, 2018. 19 (ECF No. 44-3 at 34 (Pl.’s Dep.); (ECF No. 44-3 at 102 (Ex. 9).) 20 70. Defendant saw plaintiff on November 21, 2018, after the dermatology visit. (ECF 21 No. 44-3 at 77 (Pl.’s Dep.); (ECF No. 44-3 at 128 (Ex. 24).) 22 71. Defendant discussed the dermatologist’s finding of seborrheic dermatitis and its 23 treatment with plaintiff. (ECF No. 44-3 at 77 (Pl.’s Dep.); (ECF No. 44-3 at 128 (Ex. 24).) 24 72. The last day plaintiff saw defendant was November 28, 2018, at which time it was 25 noted that plaintiff had seen the dermatologist who diagnosed him with seborrheic dermatitis. 26 (ECF No. 44-3 at 77, 78-79 (Pl.’s Dep.); (ECF No. 44-3 at 130 (Ex. 25).) 27 73. On November 28, 2018, plaintiff told defendant that plaintiff believed whitish 28 material he was scraping from his face every day was a fungal infection, and he wanted to be sent 1 out to a hospital for a skin biopsy. (ECF No. 44-3 at 79-80 (Pl.’s Dep.).) 2 74. Plaintiff wanted to prove he had a fungus. (ECF No. 44-3 at 80 (Pl.’s Dep.).) 3 75. Plaintiff had no fever or chills, he had had blood tests done multiple times and they 4 never showed evidence of an infection, and plaintiff had been treated multiple times with 5 antifungal creams that had no effect, meaning it was not a fungus. (ECF No. 44-3 at 80-81 (Pl.’s 6 Dep.).) 7 76. What defendant knew on November 28, 2018, was that no blood work showed any 8 kind of infection, that a fungal culture showed no fungal infection, and plaintiff was seeing a 9 dermatologist regularly. (ECF No. 44-3 at 80 (Pl.’s Dep.).) 10 77. Defendant’s plan on November 28, 2018, the last time he saw plaintiff, was to 11 continue nystatin twice a day as per instruction of the dermatologist, he informed plaintiff that he 12 did not have a fungal infection, and there was no indication for him to be sent out for a biopsy, 13 and ordered a follow-up in 30 days. (ECF No. 44-3 at 81 (Pl.’s Dep.); (ECF No. 44-3 at 130 (Ex. 14 25).) 15 78. Thereafter, plaintiff was seen by dermatologist Dr. Ely on July 1, 2019, via 16 telemedicine dermatology. (ECF No. 44-3 at 35 (Pl.’s Dep.); (ECF No. 44-3 at 111 (Ex. 10).) 17 79. Plaintiff’s complaint when he saw Dr. Ely was that the shampoo prescribed in 2016 18 caused him to have a bacteria in his pores secondary to the use of Selsun shampoo. (ECF No. 44- 19 3 at 35 (Pl.’s Dep.); (ECF No. 44-3 at 111 (Ex. 10).) 20 80. At the time plaintiff saw Dr. Ely, plaintiff told him he was shaving his beard area 21 every day, dry, with no soap and water. (ECF No. 44-3 at 35 (Pl.’s Dep.); (ECF No. 44-3 at 111 22 (Ex. 10).) 23 81. Plaintiff also told Dr. Ely that plaintiff was putting his shaving detritus in a plastic 24 bottle that he brought in to show Dr. Ely. (ECF No. 44-3 at 36 (Pl.’s Dep.); (ECF No. 44-3 at 111 25 (Ex. 10).) 26 82. At the time plaintiff saw Dr. Ely, plaintiff had already had a fungal culture done by 27 Dr. Agarwal that was negative. (ECF No. 44-3 at 36 (Pl.’s Dep.) 28 83. Dr. Ely assessed plaintiff as “delusional about what was happening to his skin, but it 1 is based on lichenification of the skin caused by shaving dry without soap and water. The friction 2 causes the pigmentation and texture changes.” (ECF No. 44-3 at 36-37 (Pl.’s Dep.); (ECF No. 3 44-3 at 111 (Ex. 10).) 4 84. Dr. Ely explained to plaintiff that shaving his skin dry could cause problems because 5 he had dermatitis. (ECF No. 44-3 at 37 (Pl.’s Dep.); (ECF No. 44-3 at 111 (Ex. 10).) 6 85. Dr. Ely, the second dermatologist plaintiff had seen, and plaintiff’s third dermatology 7 visit, did not diagnose plaintiff as having any bacteria or fungus in his pores. (ECF No. 44-3 at 8 37-38 (Pl.’s Dep.); (ECF No. 44-3 at 111 (Ex. 10).) 9 86. Plaintiff believes that the shampoo prescribed in 2016 by PA Akintola is the cause of 10 his claimed skin problems. (ECF No. 44-3 at 12 (Pl.’s Dep.).) 11 87. No doctor has ever told plaintiff that the shampoo prescribed in 2016 by PA Akintola 12 is the cause of his skin problems. (ECF No. 44-3 at 12 (Pl.’s Dep.).) 13 88. As of January 6, 2020, when plaintiff was deposed, there was nothing in plaintiff’s 14 medical records showing that he has any fungus. (ECF No. 44-3 at 40 (Pl.’s Dep.).) 15 89. The fungus culture sent by defendant Dr. Agarwal showed no fungus. (ECF No. 44-3 16 at 40 (Pl.’s Dep.).) 17 90. There is nothing in plaintiff’s medical records showing that he has any bacterial 18 infection. (ECF No. 44-3 at 39 (Pl.’s Dep.).) 19 91. No medical provider plaintiff has seen since 2016 has told him that he has some kind 20 of bacterial infection in his skin. (ECF No. 44-3 at 39 (Pl.’s Dep.).) 21 92. No dermatologist told plaintiff that he has a fungus or bacteria in his pores. (ECF No. 22 44-3 at 38 (Pl.’s Dep.).) 23 93. From 2016 to January 6, 2020, all dermatologists plaintiff has seen have told him he 24 has dermatitis. (ECF No. 44-3 at 39 (Pl.’s Dep.).) 25 94. Doctors have told plaintiff his condition is dermatitis, with none telling him he has 26 some kind of fungus. (ECF No. 44-3 at 21, 22 (Pl.’s Dep.).) 27 95. Plaintiff claims that what he claims as an abnormality is a parasite, fungus, and a 28 germ in his skin that he has to figure out a way to get rid of. (ECF No. 44-3 at 40 (Pl.’s Dep.).) 1 96. What the dermatologists have diagnosed as dermatitis, plaintiff calls a “germ,” “an 2 abnormality,” “parasite,” “something that’s . . . not a part of me.” (ECF No. 44-3 at 40 (Pl.’s 3 Dep.).) 4 97. Plaintiff believes he has a parasite in his skin, his pores. (ECF No. 44-3 at 41 (Pl.’s 5 Dep.).) 6 98. Plaintiff speculates that this germ is in his skin so it has access to his blood stream 7 and is inside him. (ECF No. 44-3 at 41 (Pl.’s Dep.).) 8 99. Plaintiff believes he has an infection, a germ, but not the type that is going to kill him 9 right away, but it is doing damage now. (ECF No. 44-3 at 50 (Pl.’s Dep.).) 10 100. Plaintiff was not willing to accept the diagnosis of dermatologists or the opinion of 11 his primary care provider because if plaintiff has germs coming out of his face and doctors are 12 telling plaintiff nothing is wrong with him and they do not see anything, there is a conflict 13 between him and them. (ECF No. 44-3 at 50 (Pl.’s Dep.).) 14 101. Plaintiff has a difference of opinion from that of his physicians. (ECF No. 44-3 at 15 50 (Pl.’s Dep.).) 16 102. In the education materials plaintiff received from dermatologist Dr. Hrabko, it 17 advised that there is no cure for seborrheic dermatitis, but it can be managed by cortisone, steroid 18 ointments, creams, and lotions, and over-the-counter prescription shampoos, and once defendant 19 knew the diagnosis, that is what defendant prescribed for plaintiff. (ECF No. 44-3 at 84 (Pl.’s 20 Dep.); (ECF No. 44-3 at 90 (Ex. 7).) 21 103. [intentionally left blank]6 22 104. Plaintiff blames PA Akintola for plaintiff’s skin problem because PA Akintola 23 prescribed the shampoo that plaintiff believes caused the problem, but the courts dismissed PA 24 Akintola so plaintiff is stuck with defendant Dr. Agarwal, but plaintiff does not blame defendant 25 Dr. Agarwal for plaintiff’s skin problem because Dr. Agarwal is not a dermatologist. (ECF No. 26 6 Defendant included as UDF 103: “If it were up to plaintiff, he would be blaming PA Akintola 27 because he’s the one who prescribed the shampoo, citing plaintiff’s deposition at 30:23-24. However, page 30 of plaintiff’s deposition was not scanned into the court’s electronic docket, and 28 was likely not provided to plaintiff. 1 44-3 at 82-83 (Pl.’s Dep.).) 2 105. When plaintiff brought to defendant’s attention that he had a skin problem, 3 defendant recommended plaintiff see a dermatologist. (ECF No. 44-3 at 13 (Pl.’s Dep.).) 4 106. Plaintiff does not fault defendant since defendant is not a dermatologist, was 5 following recommendations from dermatologists, and made the referrals, did blood work, and did 6 the fungus culture. (ECF No. 44-3 at 83 (Pl.’s Dep.).) 7 107. Plaintiff does not hold defendant fully responsible. (ECF No. 44-3 at 83 (Pl.’s 8 Dep.).) 9 108. Plaintiff believes defendant was trying to help him with his condition. (ECF No. 44- 10 3 at 14 (Pl.’s Dep.).) 11 109. 7 On December 16, 2019, via telemedicine, dermatologist Dr. Ely saw plaintiff, who 12 told Dr. Ely that plaintiff had a “cup of ‘fungus’” he wanted Dr. Ely to analyze, indicating 13 plaintiff had shaved it off his face. (ECF No. 49 at 7, ¶ 4 (Dr. Adams’ Decl.); ECF No. 49 at 10 14 (Ex. A.).) Plaintiff did not have the cup with him, but complained of burning and itching of the 15 face not relieved by multiple antifungal creams and hydrocortisone. (Id.) On exam, Dr. Ely 16 noted plaintiff’s skin was “essentially normal skin of the face,” with “no lesions suggestive of a 17 ‘fungus’ infection.” (Id.) When told Dr. Ely could not see anything, plaintiff said it was because 18 he “shaved the fungus off.” (Id.) Dr. Ely diagnosed pruritis, noting “clearly this is not a 19 dermatophyte infection and analysis of skin debris will show nothing.” (Id.) 20 110. On February 10, 2020, via telemedicine, Dr. Ely again saw plaintiff, who 21 complained of “stuff coming out of my pores,” and that it had been occurring since 2016. (ECF 22 No. 49 at 7, ¶ 5 (Dr. Adams’ Decl.); ECF No. 49 at 11 (Ex. B.).) Plaintiff claimed he was using 23 Calamine lotion and had tried numerous topical steroids and antifungals. (Id.) Plaintiff brought 24 with him a plastic jar full of epidermal debris, which plaintiff claimed he got off his face using a 25 dry shave technique with his razor, and wanted it analyzed. (Id.) Dr. Ely’s assessment was 26 27 7 UDF 109 - 111 were provided as background to Quest Diagnostic’s February 23, 2020 Report included with plaintiff’s opposition. Following review of the briefing, including plaintiff’s sur- 28 reply, the undersigned also finds such facts to be undisputed. 1 “clinically this looks like seborrheic dermatitis,” and “the scaling is suggestive of tinea faciel.” 2 (Id.) Because plaintiff insisted, Dr. Ely sent the jar and its contents for culture. (Id.) 3 111. On February 23, 2020, Quest Diagnostics issued its report on the culture of the 4 contents of plaintiff’s cup. (ECF No. 49 at 8, ¶ 7 (Dr. Adams’ Decl.); ECF No. 49 at 15 (Ex. C.).) 5 The reported result: Alternaria species. (ECF No. 49 at 15 (Ex. C.).) The report references client 6 Dr. Singh. (Id.) 7 VII. Defendant’s Motion for Summary Judgment 8 A. Legal Standards Governing Medical Claims 9 Deliberate indifference to a serious medical need violates the Eighth Amendment’s 10 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 11 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 12 WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of 13 “deliberate indifference” involves an examination of two elements: the seriousness of the 14 prisoner’s medical need and the nature of the defendant’s response to that need. See McGuckin, 15 974 F.2d at 1059. 16 A “serious medical need” exists if the failure to treat the injury or condition “could result 17 in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Jett v. Penner, 18 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin, 974 F.2d at 1059). 19 An official acts with deliberate indifference if he “knows of and disregards an excessive 20 risk to inmate health or safety; to satisfy the knowledge component, the official must both be 21 aware of facts from which the inference could be drawn that a substantial risk of serious harm 22 exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 23 Also, “[p]rison officials are deliberately indifferent to a prisoner’s serious medical needs when 24 they deny, delay, or intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 25 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted), or when they fail to 26 respond to a prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096. 27 Deliberate indifference is a higher standard than negligence or lack of ordinary due care 28 for the prisoner’s safety. Farmer, 511 U.S. at 835. Medical malpractice or negligence does not 1 support a cause of action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 2 458, 460 (9th Cir. 1980) (per curiam). Moreover, a delay in medical treatment does not violate 3 the Eighth Amendment unless that delay causes further harm. McGuckin, 974 F.2d at 1060. 4 Additionally, there is no constitutional right to an outside medical provider of one’s own choice. 5 See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986) (“A prison inmate has no independent 6 constitutional right to outside medical care additional and supplemental to the medical care 7 provided by the prison staff within the institution.”). 8 Furthermore, “Eighth Amendment doctrine makes clear that “[a] difference of opinion 9 between a physician and the prisoner -- or between medical professionals -- concerning what 10 medical care is appropriate does not amount to deliberate indifference.” Hamby v. Hammond, 11 821 F.3d 1085, 1092 (9th Cir. 2016) (internal quotations and citations omitted) (evaluating merits 12 of Eighth Amendment claim in context of qualified immunity). Difference in opinion amounts to 13 deliberate indifference only when the course of treatment chosen is “medically unacceptable 14 under the circumstances” and was chosen “in conscious disregard of an excessive risk to 15 plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Only conduct 16 characterized by “obduracy and wantonness” amounts to deliberate indifference under the Eighth 17 Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986). The action must rise to a level of 18 “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 19 B. Discussion 20 Solely for purposes of summary judgment, defendant does not dispute that plaintiff’s skin 21 condition constitutes a serious medical condition. Thus, the sole issue here is whether defendant 22 Dr. Agarwal was deliberately indifferent. 23 Following review of the evidence, the undersigned finds that defendant adduced evidence 24 demonstrating he was not deliberately indifferent. First, the evidence shows that defendant 25 treated plaintiff on multiple occasions and did not unduly delay plaintiff’s treatment. Plaintiff 26 initially saw defendant on August 17, 2017, over four and a half months after plaintiff stopped 27 using the shampoo prescribed by PA Akintola. (UDF 8, 11.) Plaintiff did not complain about a 28 fungal infection of his face and forehead skin until January 31, 2018, and on that date, defendant 1 ordered a fungus culture, which was taken and sent for culture on February 1, 2018. (UDF 17- 2 19.) In the meantime, plaintiff presented with no fever, yet complained of a fungal infection in 3 his blood; defendant ordered blood work. (UDF 22.) On February 20, 2018, defendant informed 4 plaintiff that the culture and the blood work did not show evidence of a systemic fungal infection, 5 and on February 28, 2018, defendant gave plaintiff the results from the fungal culture showing no 6 fungal elements. (UDF 28, 29-30.) On May 17, 2018, defendant requested plaintiff be referred to 7 a dermatologist, who saw plaintiff on July 11, 2018. (UDF 39, 40.) Following plaintiff’s refusal 8 to again see the dermatologist, defendant ordered another dermatologist appointment. (UDF 62.) 9 Defendant last saw plaintiff on November 28, 2018, noting plaintiff did not have a fungal 10 infection, there was no indication for plaintiff to be sent out for biopsy, and ordered a follow-up 11 in 30 days. (UDF 72, 77.) At that time, dermatologist Dr Hrabko had diagnosed plaintiff as 12 having seborrheic dermatitis, for which there is no cure, but could only be managed by treatment, 13 including Cortisone ointments, creams, lotions, and over-the-counter and prescription shampoos. 14 (UDF 41, 42, 43, 46, 47.) 15 Second, it is undisputed that other medical professionals agreed with defendant’s medical 16 opinion that plaintiff did not suffer from a fungal infection of his facial skin. Dr. Hillman found 17 no evidence of a fungal nature, but prescribed clotrimazole topical, a fungicidal, to rule fungus 18 out, and the clotrimazole had no effect. (UDF 35, 36, 37.) The dermatologist Dr. Hrabko did not 19 diagnose plaintiff as having a fungal infection, but rather seborrheic dermatitis. (UDF 43.) 20 Importantly, Dr. Ely explained to plaintiff that shaving his skin dry could cause problems because 21 he had dermatitis (UDF 84), and Dr. Adams confirmed plaintiff “repeatedly indicated he was dry 22 shaving his face, contrary to medical instructions not to dry shave.” (ECF No. 49 at 8.) Indeed, 23 two medical providers deemed plaintiff “delusional” for his refusal to believe the dermatitis 24 diagnosis. (UDF 57, 83.) 25 Third, defendant’s evidence demonstrates defendant did not act with a culpable state of 26 mind. Even when defendant doubted plaintiff had a fungal infection, defendant took a scraping 27 and had the sample cultured. Plaintiff’s unverified claim that the scalpel contained no specimen 28 is rebutted by the Quest Diagnostic report finding the specimen adequate. (UDF 32.) Moreover, 1 despite the culture showing no fungal infection, defendant went ahead and provided plaintiff with 2 antifungal medication. On November 28, 2018, the last time defendant saw plaintiff, defendant 3 knew a dermatologist diagnosed plaintiff with seborrheic dermatitis, plaintiff was seeing a 4 dermatologist regularly, and physical exams of plaintiff, his blood work, and fungal culture 5 showed no fungal infections. (UDF 72, 76.) Even in his deposition, plaintiff conceded that 6 defendant is not a dermatologist yet tried to help plaintiff. (UDF 108; see also 104, 106, 107.) 7 Fourth, in response to the 2020 culture showing Alternaria, defendant provided the 8 declaration of Dr. Anise Adams8 who explained that “Alternaria is a plant pathogen -- a fungus 9 that occurs primarily on plants and in soil,” and “it does not generally infect the skin of an 10 immunocompetent patient.” (ECF No. 49 at 8, ¶ 8 (Dr. Adams’ Decl.).) Dr. Adams opined that 11 “it is most likely that it was a contaminant in the sample jar of detritus provided by [plaintiff], and 12 not something actually on [plaintiff’s] skin.” (ECF No. 49 at 8.) Dr. Adams questioned the 13 integrity of the sample based on Dr. Ely’s failure to take a scalpel scraping and place it into a 14 sterile container, as well as the inability to determine the circumstances of plaintiff’s collection of 15 the sample. (ECF No. 49 at 8, ¶ 6 (Dr. Adams’ Decl.).) Indeed, at plaintiff’s January 6, 2020 16 deposition, plaintiff described a bag he brought with him as “a plastic bag with a specimen 17 accompanied in it and it’s the stuff I shave off my face.” (ECF No. 49 at 16-17, ¶ 2 (Whitney 18 Decl.); ECF No. 49 at 20, 21 (Pl.’s Dep.).) Plaintiff testified, “I’m trying to get the doctor in the 19 unit I’m in, Dr. Singh, to have it analyzed,” and “I grow some type of fungus on my face and I 20 shave it off and I put it in this specimen cup.” (ECF No. 49 at 20, 21 (Pl.’s Dep.).) As early as 21 2018, plaintiff was dry shaving and collecting epidermal debris in a plastic specimen cup. (UDF 22 25 & 27.) 23 In any event, the 2020 culture reporting Alternaria fails to demonstrate a link between 24 defendant, who last treated plaintiff in November of 2018, and the 2020 report. As noted above, 25 defendant took a sample from defendant in February of 2018 using a sterile procedure, yet the 26 resulting culture showed no fungal infection. Dr. Adams confirmed that the Alternaria noted in 27 8 Dr. Anise Adams is a medical doctor licensed by the State of California, currently employed as 28 the Chief Medical Executive for the California Health Care Facility. (ECF No. 49 at 6.) 1 the 2020 report “does not substantiate any medical correlation between [plaintiff’s] skin condition 2 and the treatment by Dr. Agarwal years before, most especially since nothing in [plaintiff’s] 3 medical records shows he has ever had any fungus.” (ECF No. 49 at 8.) Moreover, “[i]n the rare 4 circumstances that Alternaria was on [plaintiff’s facial skin, treatment would involve antifungal 5 medication, which had been tried on [plaintiff’s] numerous times over the years, to no effect.” 6 (Id.) 7 In light of the above evidence, the undersigned finds that defendant has met his initial 8 burden to cite evidence in support of his assertion that there is no genuine dispute of material fact 9 as to whether defendant Dr. Agarwal was deliberately indifferent to plaintiff’s serious medical 10 needs. 11 Thus, the burden shifts to plaintiff to demonstrate defendant was deliberately indifferent. 12 A plaintiff’s verified complaint may be considered as an affidavit in opposition to 13 summary judgment if it is based on personal knowledge and sets forth specific facts admissible in 14 evidence. Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000). In his February 22, 2019 15 second amended complaint, the statements based on his own personal knowledge are that he was 16 not taken to an outside hospital, that he was treated with solutions and medicated creams by 17 doctors at CHCF that “didn’t work/failed,” and his face or facial skin “burns and itches,” and also 18 states that “dermatitis is just more irritation and pain at times.” (ECF No. 19 at 3, 4, 8.) Such 19 statements, standing alone, are insufficient to rebut the medical evidence set forth above. It is 20 undisputed that plaintiff was not taken to an outside hospital, but he was seen by two outside 21 dermatologists by telemedicine on several occasions. As noted above, plaintiff does not have a 22 constitutional right to medical care outside of that provided within the prison. See Roberts, 783 23 F.2d at 870. On this record, the fact that plaintiff was not taken to an outside hospital does not 24 constitute a material dispute of fact precluding summary judgment. 25 In opposition, the only competent evidence plaintiff provided is the February 23, 2020 26 Quest Diagnostics Report showing the culture result as “Alternaria species.” (ECF No. 48 at 7.) 27 However, taking such report as true, plaintiff submitted no evidence linking defendant to this new 28 report. As argued by defendant, defendant last treated plaintiff in November of 2018; thus, 1 defendant could not have been aware of such finding. Plaintiff offers no competent evidence 2 refuting Dr. Adams’ declaration that there is no medical correlation between the 2020 culture 3 results and defendant’s medical treatment years prior. Therefore, even assuming plaintiff did 4 have Alternaria on his facial skin in February 2020, plaintiff has not demonstrated that defendant 5 knew of such condition and disregarded it. 6 Further, despite being provided notice of the requirements for opposing a motion for 7 summary judgment, plaintiff did not provide his own declaration or other evidence showing 8 defendant was deliberately indifferent during the time defendant treated plaintiff. (ECF Nos. 23 9 (court notice), 44 (contemporaneous notice), (ECF No. 47 (court reminder).)9 Plaintiff clearly 10 disagrees with defendant’s finding that plaintiff did not suffer from a fungal infection of his skin, 11 but a mere disagreement with his doctor does not rise to the level of deliberate indifference. 12 Hamby, 821 F.3d at 1092. In his unverified opposition, plaintiff claims that his skin disease is 13 called Alternaria, and that “dermatitis” was a misdiagnosis by Dr. Agarwal. (ECF No. 48 at 4.) 14 However, defendant did not diagnose plaintiff with dermatitis; rather, it was Dr. Hrabko. (UDF 15 41.) But even if defendant had misdiagnosed plaintiff’s skin condition, medical malpractice or 16 negligent failure to diagnose a medical condition, without more, does not constitute an Eighth 17 Amendment violation. Broughton, 622 F.2d at 460. Plaintiff has not adduced any competent 18 evidence that defendant chose a course of treatment that was medically unacceptable and did so 19 knowing such course of treatment posed an excessive risk to plaintiff’s health. Jackson, 90 F.3d 20 at 332. 21 Based on the foregoing, the undersigned concludes that plaintiff has not raised a genuine 22 issue as to any material fact. Therefore, summary judgment for defendant is appropriate. 23 //// 24 //// 25 9 Plaintiff did cite to Log # CHCF HC 18003287 Health Care Services response report, claiming 26 that the report “called his medical skin problem seborrheic dermatitis, and the PCP [“primary care 27 physician”] is Dr. Agarwal[’s] October 4, 2018 report.” (ECF No. 50 at 3.) However, plaintiff did not submit a copy of the Health Care Services response or the October 4, 2018 report. 28 1 | VIII. Injunctive Relief 2 In his complaint, plaintiff sought transfer away from CHCF. However, in light of the 3 | instant findings and recommendations, plaintiff's motion should be denied. 4 | IX. Conclusion 5 Accordingly, IT IS HEREBY ORDERED that defendant’s motion to strike plaintiff's sur- 6 | reply (ECF No. 51) is denied. 7 Further, IT IS RECOMMENDED that: 8 1. Defendant’s motion for summary judgment (ECF No. 44) be granted; 9 2. Plaintiffs request for injunctive relief (ECF No. 19 at 9) be denied; and 10 3. Judgment in favor of defendant Agarwal be entered, and this action be terminated. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 13 | being served with these findings and recommendations, any party may file written objections with 14 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 15 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 16 | filed and served within fourteen days after service of the objections. The parties are advised that 17 | failure to file objections within the specified time may waive the right to appeal the District 18 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: December 8, 2020 20 Fensbl A Abar 21 | (gree1931.ms}med UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 23