(PC) Martin v. Petras ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 O.Z. MARTIN, No. 2: 19-cv-2075 TLN KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT FOX, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ summary judgment motion. (ECF 20 No. 45.) For the reasons stated herein, the undersigned recommends that defendants’ summary 21 judgment motion be granted in part and denied in part. 22 Legal Standards for Summary Judgment 23 Summary judgment is appropriate when it is demonstrated that the standard set forth in 24 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 25 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 26 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 27 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 28 for its motion, and identifying those portions of “the pleadings, 1 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate 2 the absence of a genuine issue of material fact. 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 4 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 5 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 6 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 7 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 8 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 9 burden of production may rely on a showing that a party who does have the trial burden cannot 10 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 11 should be entered, after adequate time for discovery and upon motion, against a party who fails to 12 make a showing sufficient to establish the existence of an element essential to that party’s case, 13 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 14 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 15 necessarily renders all other facts immaterial.” Id. at 323. 16 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 17 the opposing party to establish that a genuine issue as to any material fact actually exists. See 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 19 establish the existence of such a factual dispute, the opposing party may not rely upon the 20 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 21 form of affidavits, and/or admissible discovery material in support of its contention that such a 22 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 23 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 24 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 25 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 26 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 27 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 28 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1 1564, 1575 (9th Cir. 1990). 2 In the endeavor to establish the existence of a factual dispute, the opposing party need not 3 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 4 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 5 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 6 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 7 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 8 amendments). 9 In resolving a summary judgment motion, the court examines the pleadings, depositions, 10 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 11 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 12 255. All reasonable inferences that may be drawn from the facts placed before the court must be 13 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa 14 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not 15 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 16 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 17 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 18 genuine issue, the opposing party “must do more than simply show that there is some 19 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 20 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 21 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 22 By contemporaneous notice provided on April 16, 2020 (ECF No. 25), plaintiff was 23 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 24 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 25 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 26 Plaintiff’s Claims 27 This action proceeds on plaintiff’s original complaint as to defendants Petras, Haile, 28 Saukhla, Ditomas, Horch and Lewis. Plaintiff alleges that he has been diagnosed with Hepatitis 1 C (“HCV”) since 1991. Plaintiff alleges that the California Department of Health Care Services 2 HCV Treatment Policy provides that individuals suffering from Stage 2 or greater hepatic fibrosis 3 and debilitating fatigue are candidates for HCV treatment. Plaintiff alleges that he has been a 4 candidate for HCV treatment since March 14, 2016, when he suffered from body itching, 5 debilitating fatigue, abdominal pain in the liver area and a worsened hepatitis fibrosis score. 6 Plaintiff alleges that in September 2016, his condition deteriorated and he also suffered from 7 nausea, vomiting, diarrhea and joint pain. 8 Plaintiff alleges that from November 2015 to July 2017, he complained to defendants 9 Haile, Saukhla and Petras about his hepatitis C symptoms. Plaintiff alleges that these defendants 10 falsified plaintiff’s medical records to state that plaintiff suffered from no symptoms in order to 11 deny his request for treatment. Plaintiff alleges that these defendants informed him that the cost 12 of the treatment was too expensive. Plaintiff alleges that these defendants knew of, or should 13 have known, of the Health Care Services HCV Treatment Policy. 14 Plaintiff alleges that on August 8, 2017, defendant Saukhla finally found that plaintiff was 15 eligible for HCV treatment. On September 15, 2017, plaintiff’s treatment commenced. At that 16 time, defendant Petras indicated that plaintiff had body wide itching, nausea and vomiting. 17 Defendant Petras told plaintiff that because of his advanced HCV liver disease, it was unlikely 18 that HCV treatment would have any effect on his HCV symptoms. 19 Plaintiff alleges that on October 19, 2017, defendant Saukhla examined plaintiff. 20 Following this examination, defendant Saukhla allegedly falsely recorded that plaintiff did not 21 complain of ongoing nausea, vomiting, loose bowels, body itching, abdominal pain, drowsiness, 22 joint pain, etc. On December 26, 2017, defendant Haile examined plaintiff. Plaintiff alleges that 23 following this examination, defendant Haile falsely wrote that plaintiff did not complain of 24 ongoing symptoms. 25 On March 22, 2018, defendant Haile informed plaintiff that his HCV virus was non- 26 detectable. Plaintiff told defendant Haile that he still suffered from ongoing nausea, vomiting, 27 loose bowels, body wide itching, abdominal pain, fatigue, etc. Defendant Haile then falsely 28 reported that plaintiff did not complain of these symptoms. 1 Plaintiff alleges that defendants Haile, Saukhla and Petras violated the Eighth Amendment 2 by delaying his HCV treatment. Plaintiff alleges that defendants Ditomas, Horsch and Lewis 3 violated the Eighth Amendment by denying his administrative grievances in which he sought 4 HCV treatment based on his deteriorating liver functions and worsening symptoms. 5 Legal Standard for Eighth Amendment Inadequate Medical Care Claim 6 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 7 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 8 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 9 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 10 indifference requires plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 11 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 12 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 13 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner 14 unless the defendant “knows of and disregards an excessive risk to inmate health or safety.” 15 Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference is shown where there was 16 “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 17 indifference caused harm. Jett, 439 F.3d at 1096. 18 Defendants’ Evidence 19 HCV and California Department of Corrections and Rehabilitation (“CDCR”) HCV 20 Treatment Policy 21 Until relatively recently, treatment for most forms of HCV was highly toxic and not very 22 effective. (ECF No. 45-5 at 3.) Accordingly, until recently, nationally-recognized HCV 23 treatment guidelines recommended that patients be treated on the severity of their liver disease. 24 (Id.) Patients with more advanced inflammation and liver fibrosis (scarring) were prioritized for 25 treatment. (Id.) Patients with less advanced fibrosis were monitored, with the understanding that 26 many of them would never progress to more severe liver disease or require treatment. (Id.) 27 In October 2014, the Food and Drug Administration (“FDA”) approved the use of the 28 drug Harvoni, and it represented a groundbreaking approach to the treatment of HCV. (Id.) 1 National healthcare organizations, from private insurers to Medicaid, then had to devise the most 2 prudent methods with which to incorporate this new treatment into existing protocols. (Id.) Most 3 practitioners used a cautious measured approach to the new treatment by providing treatment for 4 patients with more advanced disease. (Id.) This approach permitted the medical community to 5 become more familiar with the new treatment’s use, safety and efficacy profile. (Id.) Moreover, 6 this approach was appropriate for HCV because it is a disease that progresses very slowly, if at 7 all. (Id.) CDCR’s approach to HCV treatment has been consistent with nationally accepted 8 standards of medical treatment for HCV patients. (Id.) 9 During the time period alleged in the complaint, inmates in CDCR custody received HCV 10 treatment in accordance with the California Correctional Health Care Services (“CCHCS”) 11 Hepatitis C Care Guide (“Care Guide”). (Id.) This policy was developed under the direction of 12 the federal Receiver appointed in Plata v. Newsom, No. 4:01-cv-1351 (N.D. Cal.). (Id.) The 13 policy is regularly updated under the Receiver’s direction to incorporate current medical literature 14 and recommendations from nationally-recognized medical groups. (Id.) During the relevant time 15 periods, three Care Guides were in effect from May 2015 to October 2015, October 2015 to 16 January 2017, and January 2017 to December 2017. (Id.) 17 Pursuant to the Care Guides in effect between May 2015 and December 2017, HCV 18 treatment required approval from the CCHCS HCV Oversight Committee (“Oversight 19 Committee”). (Id.) No individual CDCR physician at a local prison may unilaterally prescribe or 20 provide HCV treatment to an inmate without approval from the Oversight Committee. (Id. at 3- 21 4.) This means that defendants Petras, Haile and Saukhla could not authorize treatment for 22 plaintiff without approval from the Oversight Committee. (Id. at 4.) Defendants Ditomas, Horch 23 and Lewis, who reviewed and issued administrative decisions on plaintiff’s grievances requesting 24 treatment, also could not have unilaterally authorized treatment. (Id.) 25 During the time period relevant to this lawsuit, pursuant to the operative Care Guides, 26 treatment eligibility was based on estimated disease severity because not every patient with 27 chronic HCV required treatment. (Id.) After HCV infection, approximately 20% of infected 28 persons will clear HCV from their body without treatment. (Id.) Of the remaining 80%, most 1 individuals will have no significant sequelae, meaning no medical conditions, caused by their 2 HCV infection. (Id.) 3 HCV persists in the liver in about 80% of those infected. (Id.) But only a minority, 4 approximately 20% of those who are chronically infected, will slowly progress to cirrhosis over a 5 20 to 30 year time frame. (Id.) However, there is no single test that can predict which patients 6 will progress to severe liver disease. (Id.) During the time period alleged in plaintiff’s complaint, 7 CCHCS Care Guide deferred treatment for those with minimal liver disease or a low likelihood of 8 significant liver disease. (Id.) 9 During the time period at issue, HCV status and treatment eligibility was reassessed at 10 least annually. (Id.) Physicians considered various tests including platelets, INR, albumin, 11 AST/ALT, and total bilirubin, every six to twelve months to assess a patient’s condition and 12 evaluate whether the condition had progressed. (Id.) 13 Pursuant to the operative Care Guides, the risk of serious liver disease could be assessed 14 using an FIB4 index. (Id.) The FIB4 index is a calculation of lab values that predicts a patient’s 15 current cirrhosis levels. (Id.) An FIB4 index higher than 3.25 has a positive predictive value of 16 82% percent to confirm the existence of stage 3 or 4 fibrosis, while an index less than 1.45 has a 17 negative predictive value of 94.7% to exclude severe fibrosis. (Id.) FIB4 indices between 1.45 18 and 3.25 are not considered to be an accurate predictor of fibrosis stage. (Id.) Accordingly, 19 patients with indices between 1.45 and 3.25 who have not recently had a biopsy or an equivalent 20 stating method such as FibroScan are generally referred for further testing to assess their liver 21 fibrosis levels. (Id. at 4-5.) 22 FibroScan is a specialized ultrasound machine for the liver that measures fibrosis in 23 kilopascals (kPa). (ECF No. 45-7 at 3.) The result in kPa is then categorized into a fibrosis score 24 ranging from F0 to F4. (Id.) A score of F0 to F1 indicates little to no liver scarring, whereas a 25 score of F4 indicates advanced liver scarring (cirrhosis). (Id.) Pursuant to the operative Care 26 Guides, CDCR inmate-patients with higher FibroScan scores would be referred to treatment 27 authorization from the Oversight Committee, and treatment would be deferred for those patients 28 with lower Fibroscan scores. (ECF No. 45-5 at 5.) 1 At all relevant times, the Care Guide required an inmate-patient’s FIB4 score to be 2 reevaluated annually. (Id.) FibroScans were to be repeated every five years in HIV-negative 3 patients. (Id.) Frequent reassessment of these scores is not medically indicated because HCV, by 4 nature, progresses very slowly, if at all. (Id.) 5 In December 2017, CCHCS revised the Care Guide, under the direction of the Receiver, 6 with the goal of offering treatment to all those who are chronically infected. (Id.) The Receiver 7 continues to control CCHCS’s systemic functions, including HCV treatment. (Id.) 8 Plaintiff’s Care 9 In August 2015 plaintiff transferred to the California Medical Facility (“CMF”). (ECF 10 No. 45-7 at 3.) 11 On September 11, 2015, defendant Haile saw plaintiff in the HCV Clinic for a chronic 12 HCV inmate appointment. (Id.) During the intake appointment, defendant Haile calculated 13 plaintiff’s FIB4 index. (Id.) On September 11, 2015, plaintiff had an FIB4 index of 1.70. (Id.) 14 Because plaintiff’s FIB4 index fell between 1.45 and 3.25, plaintiff was referred for a FibroScan 15 to further assess his fibrosis level. (Id.) In the record from this appointment, defendant Haile 16 wrote that plaintiff was in no “apparent dist.” (Id. at 8.) 17 Plaintiff’s FibroScan was completed on October 9, 2015, and indicated a result of 6.9 kPa, 18 which translates to a fibrosis score of F1-F2. (Id. at 3.) Defendant Haile saw plaintiff for an 19 appointment on November 6, 2015, in the HCV clinic to review these results. (Id.) Under the 20 operative Care Guide issued in October 2015, FibroScan scores of F1 or F2 in patients who are 21 HIV negative (like plaintiff ) did not warrant a treatment authorization referral to the Oversight 22 Committee. (Id.) In the record from this appointment, defendant Haile wrote that plaintiff “had 23 no complaints today” and that plaintiff was in no “apparent distress.” (Id. at 11.) 24 Defendant Saukhla saw plaintiff in the HCV clinic on April 28, 2016. (Id. at 4.) 25 Plaintiff’s FIB4 index was calculated as 2.11 in March 2016, which is noted on the appointment 26 record for April 28, 2016. (Id.) At that time, the Care Guide issued in October 2015 was still in 27 effect. (Id.) Plaintiff’s FibroScan score of F1-F2 from October 2015 was therefore still current 28 under the operative Care Guide. (Id.) Plaintiff did not qualify for an HCV treatment 1 authorization referral under the Care Guide at that time. (Id.) Defendant Saukhla noted that 2 plaintiff would be due for updated labs in March 2017 and would have another visit in twelve 3 months pursuant to the Care Guide. (Id.) In the record from this appointment, defendant Saukhla 4 wrote, “Doing ok.” (Id. at 13.) 5 An updated Care Guide was issued in January 2017. (Id. at 4.) However, the ranges for 6 treatment referrals based on FIB4 indices and FibroScan scores remained the same. (Id.) In 7 addition, as with the previous Care Guide, a patient’s FIB4 score was to be reevaluated annually, 8 and FibroScans were to be repeated every five years in HIV-negative patients. (Id.) 9 Defendant Saukhla evaluated plaintiff again in the HCV Clinic on February 1, 2017. (Id.) 10 Plaintiff’s FibroScan score of F1-F2 from October 2015 remained current under the operative 11 Care Guide. (Id.) Plaintiff’s FIB4 index was calculated at 2.0 in September 2016, which is noted 12 on the appointment record for February 1, 2017. (Id.) Plaintiff’s FIB4 score was also therefore 13 current under the operative Care Guide. (Id.) Based on these metrics, pursuant to the Care 14 Guide, plaintiff did not qualify for treatment authorization referral to the Oversight Committee at 15 that time. (Id.) In the record from this appointment, defendant Saukhla wrote, “has off +on 16 nausea, etc.” (Id. at 15.) Defendant Saukhla also wrote, “D/W pt at length about [illegible] for 17 Hep C r/x as per CCHCS HW Care Guide.” (Id.) 18 On June 8, 2017, defendant Petras ordered a Fibrosure blood test. (Id at 4.) Fibrosure is a 19 biomarker test that uses the results of six blood serum tests to generate a score that is correlated 20 with the degree of liver damage in people with a variety of liver diseases. (Id. at 5) It has the 21 same prognostic value as a liver biopsy. (Id.) In the record from June 8, 2017, defendant Petras 22 wrote that plaintiff reported feeling itchy and fatigued. (Id. at 17.) 23 Plaintiff saw defendant Petras on June 22, 2017. (Id. at 5.) Defendant Petras’s notes 24 indicate that plaintiff’s fibrosis level was measured at F3 based on the alternative Fibrosure blood 25 test. (Id.) A score of F3 was sufficiently high for defendant Petras to request authorization for 26 treatment from the Oversight Committee under the Care Guide. (Id.) Defendant Petras ordered 27 pre-treatment lab work. (Id.) 28 //// 1 Defendant Haile saw plaintiff in the HCV Clinic on July 26, 2017. (Id.) Defendant Haile 2 ordered additional pre-treatment lab work to be completed (HBV DNA) before submission of the 3 treatment authorization referral to the HCV Oversight Committee and set up a follow-up 4 appointment in two weeks. (Id.) 5 Defendant Saukhla saw plaintiff in the HCV Clinic on August 17, 2017. (Id.) At that 6 time, plaintiff’s pre-treatment labs were completed. (Id.) Defendant Saukhla completed the 7 treatment authorization referral to the Oversight Committee. (Id.) The referral form reflects 8 plaintiff’s FIB4 index calculated on June 26, 2017; his FibroScan score dated October 9, 2015; 9 and his Fibrosure result from June 2017. (Id.) 10 Plaintiff was approved for HCV treatment with the medication Harvoni. (Id.) Plaintiff 11 began Harvoni treatment on September 14, 2017. (Id.) 12 Defendant Saukhla saw plaintiff in the HCV Clinic on October 19, 2017, for a follow-up 13 appointment regarding his treatment progress. (Id.) After four weeks of treatment with Harvoni, 14 plaintiff’s HCV viral load (the amount of virus in the blood) was undetectable, signifying a 15 positive response to treatment with Harvoni. (Id. at 5-6.) 16 Defendant Haile saw plaintiff on December 26, 2017, for an appointment regarding his 17 treatment results. (Id. at 6.) At that time, plaintiff had completed twelve weeks of treatment with 18 Harvoni. (Id.) Following completion of the treatment, plaintiff’s HCV viral load remained 19 undetectable, indicating that treatment was successful. (Id.) 20 Defendant Haile saw plaintiff on March 22, 2018, for a follow-up appointment regarding 21 his treatment. (Id.) The lab work completed on March 8, 2018, showed an undetectable HCV 22 viral load, which confirmed that plaintiff had sustained a viral response and a desirable treatment 23 response with Harvoni. (Id.) Plaintiff was discharged from the HCV Clinic, and he was to have 24 follow-up appointments with his primary care provider. (Id.) 25 Since that time, plaintiff has had regular medical visits with defendant Petras and various 26 other physicians for several health concerns, including prostate cancer. (Id.) 27 Plaintiff’s medical records reflect that defendant Petras ordered a FibroScan for plaintiff 28 in June 2020. (Id.) Plaintiff’s fibrosis score was F0-F1, which indicates little or no liver scarring. 1 (Id.) 2 Plaintiff’s Administrative Grievance 3 Plaintiff pursued grievance no. CMF-HC-16043371, alleging he was not receiving 4 adequate treatment for HCV, among other issues. (ECF No. 45-4 at 3.) In the first level 5 grievance, signed by plaintiff on November 16, 2016, plaintiff wrote that he currently suffered 6 from chronic/severe joint pain, body itching, abdominal pain near his liver, nausea, vomiting, 7 fatigue, loose bowels and vision problems. (Id. at 11.) This grievance was received at the 8 institutional level on November 18, 2016. (Id. at 3.) Defendant Ditomas partially granted this 9 grievance at the institutional level on December 6, 2016. (Id. at 3, 15.) In responding to 10 plaintiff’s request for adequate HCV treatment, defendant Ditomas wrote that plaintiff was 11 referred to the Hepatitis C Clinic and this appointment is pending. (Id. at 15.) 12 Plaintiff appealed this grievance to the second level of review on January 25, 2017. (Id. at 13 3.) The appeal was partially granted at the second level of review by defendant Horch on 14 February 15, 2017. (Id. 3, 13-14.) In relevant part, defendant Horch responded, 15 You were seen for an evaluation for your Hep C on February 1, 2017. It is noted in your progress note, that your PCP discussed at length, 16 the criteria for Hep C treatment per California Correctional Health Care Services (CCHCS) Hepatitis C Care Guide. Based on these 17 current guidelines, you do not qualify for treatment at this time. Only 10-20 percent of people with chronic HCV develop severe liver 18 disease, and because of the toxicity of the treatment medications, the risk outweighs the benefits for your early stage HCV. There is a 19 chance that your disease may not progress at all. That is why you will receive follow-ups to monitor your FIB4 score. This is a rapidly 20 changing field and newer, less toxic therapies are being developed constantly. As the therapies improve, the care guidelines will 21 change. You will continue to be followed up by your PCP and your labs will continue to be monitored. 22 23 (Id. at 13-14.) 24 Plaintiff appealed the grievance to the headquarters level on March 13, 2017. (Id.) 25 Defendant Lewis denied this grievance on July 25, 2017. (Id. 3, 5-6.) Regarding HCV, 26 defendant Lewis noted that plaintiff’s HCV condition will continue to be monitored with further 27 review and work-up pending consideration for HCV treatment. (Id. at 5.) Defendant Lewis also 28 set forth the guidelines for HCV treatment contained in the Care Guide. (Id. at 6.) 1 Plaintiff’s Opposition 2 In his opposition, plaintiff argues that in 2015, CDCR adopted the national standards for 3 HCV treatment set by the Center for Disease Control (“CDC”), the American Association for the 4 Study of Liver Diseases (“AASLD”) and the Infectious Diseases Society of America (“IDSA”). 5 (ECF No. 51 at 109.) In support of this argument, plaintiff cites Exhibit C attached to his 6 opposition. (Id.) Exhibit C contains pages from the May 2015 Care Guide and the December 7 2017 Care Guide. (Id. at 29-32.) The 2015 Care Guide states, in relevant part, that HCV 8 treatment eligibility is based on estimated disease severity. (Id. at 29.) The pages from the 2015 9 Care Guide attached to plaintiff’s exhibit C do not discuss the CDC, AASLD or ISDA standards 10 for HCV treatment. (Id. at 29-30.) 11 The December 2017 Care Guide attached to plaintiff’s exhibit C identifies one of the 12 “goals” as “use most appropriate HCV treatment regimen based on AASLD/IDSA guidelines.” 13 (Id. at 31.) Under the section, “Patient Selection,” the December 2017 Care Guide states, 14 AASLD/IDSA recommends treatment for all patients with chronic HCV infection, except those with life expectancies < 12 months that 15 cannot be remedied by treating HCV, by liver transplantation or by other directed therapy. 16 Unless there is a medical contraindication, all patients with chronic 17 HCV are treatment candidates if they desire treatment and are willing to adhere to medication and monitoring plan. 18 AASLD/IDSA notes that there are factors that impact the access to 19 HCV medications and the ability to deliver HCV treatments to patients. Strategies for prioritizing HCV treatment based on 20 AASLD/IDSA guidance are discussed on page 5. 21 (Id.) 22 The pages from the Care Guides attached to plaintiff’s Exhibit C are consistent with 23 defendants’ evidence demonstrating that up until December 2017, HCV treatment for inmates in 24 CDCR custody was determined based on disease severity. 25 Attached to plaintiff’s Exhibit B are pages from a July 1, 2015 memorandum, issued by 26 the California Department of Health Care Services (DHCS), titled “Treatment Policy for the 27 Management of Chronic Hepatitis C.” (Id. at 26-27.) This memorandum states that the policy 28 discussed in this document was developed by DHCS based on a review of the medical literature, 1 the most recent guidelines and reports published by several organizations including the AASLD 2 and the IDSA. (Id. at 26.) The memorandum goes on to state, in relevant part, 3 Treatment considerations and choice of regimen for hepatitis C virus infected patients: 4 Please refer to AASLD guidelines (hcvguidelines.org) for 5 recommended treatment regimens and durations. 6 Identifying treatment candidates: 7 A. Disease Prognosis and Severity—Any of the following clinical states identify candidates for treatment: 8 i. Evidence of stage 2 or greater hepatic fibrosis/cirrhosis including 9 one of the following: Liver biopsy confirming a METAVIR score F2 or greater; OR Transient elastography (Fibroscan) score greater 10 than or equal to 7.5 kPa; OR FibroSure score of greater than or equal to 0.48; OR APRI score greater than 0.7 OR FEB-4 greater than 3.25. 11 12 (Id.) 13 The DHCS memorandum did not apply to plaintiff during the relevant time period. 14 Therefore, the relevance of the DHCS memorandum is unclear because defendants were required 15 to follow the standards set forth in the Care Guide in providing HCV treatment. Plaintiff also 16 does not raise a claim challenging the constitutionality of the standards in the Care Guide. In any 17 event, the undersigned observes that plaintiff does not dispute that his October 9, 2015 FibroScan 18 Score was 6.9 kPa. Based on this score alone, under the DHCS policy set forth above, it does not 19 appear that plaintiff would have been entitled to treatment. 20 Plaintiff’s main argument in his verified complaint and verified opposition is that 21 defendants disregarded his symptoms in order to deny him treatment. The undersigned discusses 22 plaintiff’s evidence submitted in support of this argument. 23 Plaintiff alleges that on November 6, 2015, he told defendant Haile that he had itchy skin 24 and abdominal pain in the liver area. (ECF No. 51 at 5.) In the record from that date, defendant 25 Haile wrote that plaintiff had “no complaints today.” (Id. at 43.) 26 Plaintiff alleges that on April 5, 2016, he told defendant Petras that he had ongoing body 27 itching, abdominal pain in the liver area and fatigue. (Id. at 5.) Plaintiff alleges that defendant 28 Petras falsely recorded that plaintiff had no complaints. The medical record from April 5, 2016, 1 indicates that defendant Petras examined plaintiff based on complaints regarding sinus symptoms. 2 (Id. at 49.) It does not appear that plaintiff’s HCV was discussed at this examination. (Id.) 3 Plaintiff alleges that April 28, 2016, he told defendant Saukhla that he suffered from 4 itching skin, abdominal pain in the liver area and fatigue. (Id. at 5.) Plaintiff alleges that 5 defendant Saukhla falsely recorded that plaintiff had no complaints. (Id. at 6.) The medical 6 records from that day state that plaintiff was there for a follow-up regarding HCV labs and that he 7 was doing okay and had no pain. (Id. at 52.) 8 Plaintiff alleges that around September 11, 2016, his symptoms went “severe,” with 9 nausea, vomiting, diarrhea, body itching, fatigue and joint pain. (Id. at 6.) 10 Plaintiff alleges that on September 19, 2016, plaintiff told defendant Petras that he had 11 nausea, vomiting, diarrhea, body itching, abdominal pain fatigue and joint pain. (Id. at 6-7.) 12 Plaintiff alleges that defendant Petras failed to report in the records from that date that plaintiff 13 had diarrhea, abdominal pain, fatigue and joint pain. (Id. at 7.) In the September 19, 2016 14 medical record, defendant Petras wrote that plaintiff had new symptoms of nausea and vomiting 15 and complained of pain. (Id. at 64.) 16 Plaintiff also provides a medical record from October 19, 2016 in which defendant Petras 17 wrote that plaintiff had itching all over, and joint pain. (Id. at 65.) It appears that defendant 18 Petras also wrote that plaintiff “looks fatigued” (Id.) 19 Plaintiff also provides a medical record from December 2, 2016, in which defendant 20 Petras wrote that plaintiff complained of symptoms that had been bothering him for 4-6 months 21 including daily nausea and occasional vomiting, itchiness all over his body and body pain. (Id. at 22 66.) 23 Plaintiff alleges in the verified opposition that on December 30, 2016, he was seen in the 24 prison clinic on an emergency basis for acute nausea, vomiting and diarrhea. (Id. at 8.) 25 Plaintiff alleges that on February 1, 2017, he told defendant Saukhla about his ongoing 26 nausea, vomiting, fatigue, diarrhea, abdominal pain, body itching and fatigue. (Id. at 8.) Plaintiff 27 argues that the records from that date do not state that plaintiff suffered any of the symptoms he 28 complained of. (Id.) The record from that date indicates that defendant Saukhla recorded that 1 plaintiff had “off and on … pain, nausea, etc.” (Id. at 67.) Defendant Saukhla wrote that he 2 discussed with plaintiff “about … for hep C r/x as per CCCHCS HW care guide.” (Id.) 3 Plaintiff allege that on February 24, 2017, and March 24, 2017, he complained to 4 defendant Petras about ongoing nausea, vomiting, abdominal pain in the liver area, body itching, 5 loose bowels, fatigue and joint pain. (Id. at 8.) Plaintiff alleges that defendant Petras falsely 6 recorded that plaintiff did not have these symptoms. (Id.) 7 In the record from February 24, 2017, defendant Petras wrote that plaintiff had vomiting 8 and nausea. (Id. at 68.) Defendant Petras noted that plaintiff did not qualify for HCV treatment 9 per the CDCR guidelines. (Id.) The record from March 24, 2017, indicates that defendant Petras 10 did not address plaintiff’s HCV during this appointment. (Id. at 70.) 11 Although not discussed in the opposition, plaintiff attaches a record from March 13, 2017, 12 wherein defendant Petras wrote that plaintiff complained of itchiness. (Id. at 69.) Defendant 13 Petras wrote that plaintiff was not eligible for HCV treatment per CDCR guidelines. (Id.) 14 Attached to plaintiff’s opposition as an exhibit are pages from the Merck Manual Home 15 Health Handbook addressing hepatitis C. (Id. at 34-36.) The Merck Manual Home Health 16 Handbook describes signs and symptoms of Hepatitis C as fatigue, loss of appetite, nausea, 17 vomiting, abdominal pain, dark yellow urine, yellowish skin and eyes, itching of the skin, clay- 18 colored bowel movements and joint pain. (Id. at 36.) 19 Discussion 20 Motion for Summary Judgment on the Grounds that Plaintiff Does Not Meet Objective 21 Component of Deliberate Indifference 22 Defendants argue that plaintiff does not meet the objective component of deliberate 23 indifference because he did not suffer a sufficiently serious medical condition that necessitated 24 treatment before receiving his Fibrosure results in June 2017. 25 The objective prong of the deliberate indifference standard requires that an alleged 26 deprivation be sufficiently serious. Hudson v. McMillian, 503 U.S. 1, 8–9 (1992). “Because 27 society does not expect that prisoners will have unqualified access to health care, deliberate 28 indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 1 ‘serious.’” Id. at 9. “The existence of an injury that a reasonable doctor or patient would find 2 important and worthy of comment or treatment; the presence of a medical condition that 3 significantly affects an individual's daily activities; or the existence of chronic and substantial 4 pain are examples of indications that prison has a ‘serious’ need for medical treatment.” 5 McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other grounds by, 6 WMX Tech, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 7 As discussed above, defendants’ evidence indicates that in December 2017, CCHCS 8 revised the Care Guide, under the direction of the Receiver, with the goal of offering treatment to 9 all inmates who are chronically infected with HCV, apparently regardless of severity of disease. 10 Therefore, plaintiff would have qualified for treatment in December 2017 even with a FibroScan 11 score of F1-F2. In addition, as discussed herein, plaintiff presented evidence suggesting that he 12 may have qualified for treatment prior to June 2017 after he became symptomatic for HCV. For 13 these reasons, the undersigned does not find that defendants have shown that plaintiff did not 14 have a serious medical need. Defendants are not entitled to summary judgment on these grounds. 15 See Andrews v. Cervantes, 493 F.3d, 1047, 1055 & n. 8 (9th Cir. 2007) (hepatitis C is a chronic 16 disease that “quite obviously cause[s] serious health problems, and can result in death.”) 17 Motion for Summary Judgment on the Grounds that Plaintiff Does Not Meet Subjective 18 Component of Deliberate Indifference 19 Defendants argue that plaintiff does not demonstrate the subjective component of 20 deliberate indifference because the undisputed evidence shows that they denied plaintiff’s 21 requests for treatment because he did not qualify for treatment until June 2017 based on the 22 policy established by the Receiver. Defendants also argue that plaintiff’s argument that he was 23 entitled to treatment prior to June 2017 demonstrates, at most, a difference of opinion which does 24 not amount to deliberate indifference. 25 The undersigned finds that the undisputed evidence demonstrates that, pursuant to the 26 standard in the Care Guide during the relevant time period, inmates with HCV at less than F3 did 27 not qualify for treatment. It is also undisputed that plaintiff did not have an F3 test result until 28 June 2017. Once plaintiff had that result, plaintiff received treatment. 1 The undersigned further finds that while plaintiff claims that defendants failed to record 2 his HCV symptoms beginning in November 2015, the medical records indicate that plaintiff did 3 not complain of any symptoms possibly related to HCV until September 19, 2016. On September 4 19, 2016, plaintiff complained of nausea, vomiting and pain. The records demonstrate that after 5 September 2016, plaintiff consistently complained of these symptoms and other symptoms 6 possibly related to HCV. 7 While it is undisputed that plaintiff did not have an F3 score qualifying him for treatment 8 until June 2017, defendants do not address plaintiff’s claim that they disregarded his symptoms 9 once he became symptomatic. Defendants do not argue, for example, that plaintiff’s symptoms 10 were not indicative of progression of the disease. Defendants do not address why they waited 11 nine months after September 2016 to order further testing, including what prompted defendant 12 Petras to order the Fibrosure test in June 2017. While the October 9, 2015 FibroScan was valid 13 for five years, defendants apparently had some discretion to order further testing, as demonstrated 14 by defendant Petras’s order of the Fibrosure test in June 2017. 15 Without further explanation of the records showing that defendants waited nine months 16 after plaintiff became symptomatic to provide plaintiff with further testing, the undersigned 17 cannot determine whether defendants acted with deliberate indifference.1 By waiting nine 18 months after plaintiff became symptomatic to provide further testing, defendants may have 19 effectively delayed plaintiff’s receipt of treatment. Defendants do not move for summary 20 judgment on the grounds that a delay in plaintiff’s receipt of treatment did not cause harm. See 21 Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002) (where a prisoner alleges that delay of 22 medical treatment evinces deliberate indifference, the prisoner must show that the delay caused 23 “significant harm and that defendants should have known this to be the case.”). 24 1 The undersigned acknowledges that in his declaration submitted in support of the summary 25 judgment motion, defendant Saukhla states, “[a] Fibrosure test was above and beyond the standards of the requirements set forth in the Care Guide in 2017.” (ECF No. 45-7 at 5.) In his 26 declaration, defendant Saukhla does not address the medical records indicating plaintiff’s 27 symptoms beginning in September 2016 which apparently became progressively worse. Therefore, defendant Saukhla did not consider all of the relevant medical records in forming his 28 opinion that the Fibrosure test was above and beyond the Care Guide standards. 1 Defendants argue that defendants Ditomas, Horch and Lewis applied the standards 2 contained in the Care Guides when addressing plaintiff’s grievances. In his grievance, plaintiff 3 requested treatment and stated that he suffered from symptoms including joint pain, body itching, 4 abdominal pain, nausea, vomiting and fatigue. As discussed above, defendant Ditomas did not 5 grant plaintiff’s request for treatment in the December 6, 2016 memorandum addressing 6 plaintiff’s grievance. Without further explanation regarding whether defendant Ditomas reviewed 7 plaintiff’s medical records, which showed that plaintiff had new symptoms possibly related to 8 HCV, the undersigned cannot determine whether defendant Ditomas acted with deliberate 9 indifference when she failed to order further testing and denied plaintiff’s request for treatment. 10 Defendant Horch denied plaintiff’s grievance requesting HCV treatment on February 17, 11 2017. Without further explanation regarding whether defendant Horch reviewed plaintiff’s 12 medical records, which showed that plaintiff had new symptoms possibly related to HCV, the 13 undersigned cannot determine whether defendant Horch acted with deliberate indifference when 14 he failed to order further testing and denied plaintiff’s request for treatment. 15 Defendant Lewis denied plaintiff’s grievance requesting treatment on July 25, 2017. By 16 that time, defendant Petras had received the results of plaintiff’s Fibrosure test and ordered pre- 17 treatment lab work for plaintiff. In his response to plaintiff’s grievance, defendant Lewis 18 acknowledges that plaintiff had been referred for work-up pending consideration for HCV 19 treatment. (ECF No. 45-4 at 5.) Therefore, defendant Lewis’s response to plaintiff’s grievance 20 had no impact on plaintiff’s receipt of treatment. Because defendant Lewis’s response to 21 plaintiff’s grievance did not cause plaintiff harm, defendant Lewis should be granted summary 22 judgment. Jett, 439 F.3d at 1096 (deliberate indifference is shown where there was “a purposeful 23 act or failure to respond to a prisoner’s pain or possible medical need” and the indifference 24 caused harm.) 25 For the reasons discussed above, the undersigned recommends that defendants’ motion for 26 summary judgment on the grounds that plaintiff does not meet the subjective component of 27 //// 28 //// 1 deliberate indifference, except for defendant Lewis, be denied.2 2 Qualified Immunity 3 Defendants move for summary judgment based on qualified immunity. Qualified 4 immunity protects § 1983 defendants from liability for civil damages so long as their conduct 5 does not violate clearly established constitutional or statutory rights of which a reasonable person 6 would have known. Saucier v. Katz, 533 U.S. 194, 231 (2001), abrogated in part on other 7 grounds by Pearson v. Callahan, 555 U.S. 223 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 8 818 (1982)). Qualified immunity “gives government officials breathing room to make reasonable 9 but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly 10 violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 11 U.S. 335, 341 (1986)). 12 In Saucier, 533 U.S. at 201, the Supreme Court set forth a two-prong test to be applied in 13 evaluating claims of qualified immunity: (1) whether the facts alleged, when taken in the light 14 most favorable to the party asserting the injury, show that the defendant's conduct violated a 15 constitutional right; and (2) whether the right was clearly established. “The relevant, dispositive 16 inquiry in determining whether a right is clearly established is whether it would be clear to a 17 reasonable officer that his/her conduct was unlawful in the situation he confronted.” Id. at 202. 18 The district court may analyze either prong of qualified immunity first. Id. at 236. 19 Defendants argue that they are entitled to qualified immunity because reasonable officials 20 in their positions could have believed that treating inmate-patients in accordance with the Care 21 Guide, put in place at the direction of the Receiver in the Plata litigation, would be lawful. 22 //// 23 24 2 The undersigned acknowledges that plaintiff’s claim that defendants failed to record his HCV symptoms beginning in November 2015 is somewhat inconsistent with the evidence of plaintiff’s 25 October 2015 FibroScan indicating a fibrosis score of F1-F2. In other words, plaintiff’s symptoms were not necessarily indicative of worsening HCV as they allegedly first occurred 26 close in time to the October 2015 FibroScan test. However, plaintiff also alleges that his 27 condition became worse in September 2016. For this reason, based on the current record, the undersigned does not find that plaintiff’s claim that he began complaining about his symptoms in 28 November 2015 necessarily undermines his Eighth Amendment claims. ] As discussed above, the record contains evidence demonstrating that plaintiff began 2 | complaining about symptoms possibly related to HCV in September 2016, which became 3 || progressively worse. Without further factual development regarding why defendants waited 4 || approximately nine months to order further testing of plaintiff's fibrosis level, the undersigned 5 || cannot determine whether defendants are entitled to qualified immunity. Accordingly, 6 || defendants’ motion for summary judgment based on qualified immunity should be denied. 7 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion for summary 8 | judgment (ECF No. 45) be granted as to defendant Lewis and denied in all other respects. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 || objections shall be filed and served within fourteen days after service of the objections. The 15 || parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 || Dated: August 6, 2021 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 21 | Mart2075.sj(3) 22 23 24 25 26 27 28 20