Chester v. King, et al.

Filing 58

FINDINGS and RECOMMENDATIONS Regarding Cross-Motions for Summary Judgment (Docs. 36 & 43 ) re 10 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 7/23/2020. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND D. CHESTER,

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Plaintiff,

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v.

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1:16-cv-01257-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS
REGARDING CROSS-MOTIONS FOR
SUMMARY JUDGMENT
(ECF Nos. 36, 43.)

AUDREY KING, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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I.

BACKGROUND

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Raymond D. Chester (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is detained at

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Coalinga State Hospital in Coalinga, California, as a Sexually Violent Predator pursuant to

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California’s Sexually Predator Act, Cal.Welf. & Inst.Code § 6604. Plaintiff filed the Complaint

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commencing this action on August 25, 2016. (ECF No. 1.) This case now proceeds with

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Plaintiff’s First Amended Complaint filed on August 31, 2017, against defendants Audrey King
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(Executive Director), Jagsir Sandhu, M.D. (Chief Medical Officer), Bradley Powers, M.D. (Unit

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Physician), and Robert Withrow, M.D. (Medical Director of Coalinga State Hospital) for failing

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to provide adequate medical care to Plaintiff in violation of the Fourteenth Amendment. (ECF

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No. 10.)

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Currently before the court are defendant Powers’ and Plaintiff’s cross-motions for

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summary judgment. On August 19, 2019, defendant Bradley Powers, M.D. (“Defendant”) filed

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a motion for summary judgment.1 (ECF No. 36.) On September 9, 2019, Plaintiff filed an

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opposition to Defendant’s motion and a cross-motion for summary judgment. (ECF No.

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43.) On September 30, 2019, Defendant filed an opposition to Plaintiff’s cross-motion.

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(ECF No. 47.) The motion and cross-motion are deemed submitted. Local Rule 230(l).
For the reasons set forth below, the court recommends that defendant Powers’ motion for

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summary judgment be granted and Plaintiff’s cross-motion for summary judgment be denied.

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II.

SUMMARY JUDGMENT STANDARD

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Any party may move for summary judgment, and the court shall grant summary judgment

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if the movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);

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Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,

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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular

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parts of materials in the record, including but not limited to depositions, documents, declarations,

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or discovery; or (2) showing that the materials cited do not establish the presence or absence of

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a genuine dispute or that the opposing party cannot produce admissible evidence to support the

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fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials

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in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3);

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Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord

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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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On August 19, 2019, Defendant served Plaintiff with the requisite notice of the requirements for
opposing the motion for summary judgment. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v.
Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 38.)
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Where parties file cross-motions for summary judgment, the court “evaluate[s] each

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motion separately, giving the nonmoving party in each instance the benefit of all reasonable

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inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir. 2006)

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(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

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674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the]

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same standard.”). Plaintiff bears the burden of proof at trial, and to prevail on summary

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judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than

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for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do

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not bear the burden of proof at trial and in moving for summary judgment, they need only prove

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an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Securities Litigation, 627

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F.3d 376, 387 (9th Cir. 2010).

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In judging the evidence at the summary judgment stage, the court may not make

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credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation

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marks and citation omitted), and it must draw all inferences in the light most favorable to the

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nonmoving party and determine whether a genuine issue of material fact precludes entry of

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judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,

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942 (9th Cir. 2011) (quotation marks and citation omitted). The court determines only whether

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there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)

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(quotation marks and citations omitted).

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Because this court must liberally construe pro se pleadings, the arguments and evidence

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submitted in support of Plaintiff’s cross-motion for summary judgment will be considered in

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tandem with, and as part of, Plaintiff’s opposition to Defendant’s motion for summary judgment.

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In arriving at these findings and recommendations, the court carefully reviewed and

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considered all arguments, points and authorities, declarations, exhibits, statements of undisputed

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facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of

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reference to an argument, document, paper, or objection is not to be construed to the effect that

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this court did not consider the argument, document, paper, or objection. This court thoroughly

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reviewed and considered the evidence it deemed admissible, material, and appropriate.
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III.

SUMMARY OF ALLEGATIONS IN THE FIRST AMENDED COMPLAINT2

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Plaintiff is currently detained at Coalinga State Hospital in Coalinga, California, in the

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custody of the California Department of State Hospitals, where the events at issue in the First

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Amended Complaint allegedly occurred. Plaintiff brings claims against defendants Audrey

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King; Jagsir Sandhu, M.D.; Robert Withrow, M.D.; and Bradley Powers, M.D., for failing to

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provide adequate medical care to Plaintiff in violation of the Fourteenth Amendment. Plaintiff’s

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allegations follow, in their entirety:

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Plaintiff has Hepatitis C. Hepatitis C is a fatal disease of the liver.

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Hepatitis C will destroy plaintiff’s liver and kill plaintiff if it is not treated.

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However, there is a cure for Hepatitis C. This cure is a drug called Harvoni.

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Harvoni is the only available treatment that will cure plaintiff’s Hepatitis C

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disease.

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At least three times since July 31, 2015, plaintiff has requested Hepatitis

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C treatment, but no treatment has commenced over the past year. Plaintiff has

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been repeatedly told that “approval is needed” to treat plaintiff’s Hepatitis C. First

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Amended Complaint, ECF No. 10 at 4. As of December 29, 2015, “a referral for

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an infectious disease consultant [was] made to address treatment of [plaintiff’s]

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Hepatitis C” by plaintiff’s former primary care physician. Id. Nothing else has

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happened to actually provide plaintiff with Hepatitis C treatment. In fact, since

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his ascension into the position of plaintiff’s Primary Care Physician in October

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2016, defendant Bradley Powers has [refused] to pursue the critical medical

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treatment plaintiff needs with Harvoni to stay alive and regain his health.

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Please see attached Administrative Grievances, wherein plaintiff

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complained about not receiving treatment for his Hepatitis C. It must be noted

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Plaintiff’s First Amended Complaint is verified and his allegations constitute evidence where
they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23
(9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not be viewed by the parties as a ruling
that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s
evidence in the sections which follow.
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that plaintiff is a patient in a state hospital with significant brain damage due to a

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previous motorcycle accident; it must be further noted that the “advocate

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specialists” handling plaintiff’s administrative complaints did nothing to forward

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plaintiff’s grievances to higher levels, preferring not to advocate for plaintiff, but

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to tell plaintiff to do it himself. Id. However, plaintiff is informed and believes

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and thereon alleges that due to his verbal inquiries, defendant Powers personally

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interfered with the former referral for Harvoni by withdrawing it; the matter was

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personally denied by defendant Dr. Sandhu (and also by Dr. Neubarth and Dr.

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Withrow). Upon personal inquiry to defendant King through a third party (and

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also by Dr. Price), plaintiff has learned two things: (1) he will be consistently

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denied Hepatitis C treatment with Harvoni, the only available treatment to cure

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Hepatitis C; and (2) At least four Hepatitis C patients at plaintiff’s state hospital

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have requested Harvoni, and all four patients have been denied on the ground that

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they were not “sick enough” for Harvoni. In all four cases, plaintiff is informed

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and believes and thereon alleges that the four patients denied treatment with

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Harvoni died of cirrhosis of the liver, and therefore liver failure. In these cases,

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Harvoni is ineffective because the defendants wait too long to initiate treatment.

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Plaintiff requests preliminary injunctive relief and monetary damages.
IV.

FOURTEENTH AMENDMENT MEDICAL CLAIM

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As a civil detainee, Plaintiff’s right to medical care is protected by the substantive

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component of the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452

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(1982). A determination whether Plaintiff’s rights were violated requires “balancing of his

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liberty interests against the relevant state interests.” Id. at 321. The civil nature of Plaintiff’s

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confinement provides an important gloss on the meaning of “punitive;” Plaintiff must be afforded

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“more considerate treatment” than even pretrial detainees, who are being criminally detained

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prior to trial. Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, at

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*4 (D. Ariz. Feb. 19, 2020) (quoting Cf. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50

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L.Ed.2d 251, (1976). However, the Constitution requires only that courts ensure that professional
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judgment was exercised. Youngberg, 457 U.S. at 315. It is not appropriate for the courts to

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specify which of several professionally acceptable choices should have been made.” Id. at 321.

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A “decision, if made by a professional, is presumptively valid; liability may be imposed only

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when the decision by the professional is such a substantial departure from accepted professional

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judgment, practice, or standards as to demonstrate that the person responsible actually did not

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base the decision on such a judgment.” Id. at 322-23.

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Although claims by civil detainees properly fall under the Fourteenth Amendment, the

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Eighth Amendment deliberate indifference standard may still be used in such cases to establish

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a floor for claims by civil detainees. Irvin v. Baca, No. CV 03-2565-AHS (CW), 2011 WL

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838915, at *8 (C.D. Cal. Jan. 18, 2011), report and recommendation adopted, No. CV 03-2565-

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AHS CW, 2011 WL 835834 (C.D. Cal. Feb. 28, 2011) (emphasis added). That is, a civil detainee

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who can show a violation under an Eighth Amendment standard can also satisfy a Fourteenth

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Amendment standard. Id. “[T]he Eighth Amendment still provides a floor for the level of

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protection that SVPs must receive . . . and because the contours of the Eighth Amendment are

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more defined, Eighth Amendment jurisprudence may provide helpful guidance as to the

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standards to be applied.” Hubbs v. County of San Bernardino, 538 F.Supp.2d 1254, 1266

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(C.D.Cal. 2008).

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle, 429 U.S. at 106. A serious medical need exists if the failure to treat plaintiff’s

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condition could result in further significant injury or the unnecessary and wanton infliction of

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pain. Jett, 439 F.3d at 1096. An officer has been deliberately indifferent if he was (a) subjectively

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aware of the serious medical need and (b) failed to adequately respond. Farmer v. Brennan, 511

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U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The second prong is satisfied by

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showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need

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and (b) harm caused by the indifference. Indifference may appear when prison officials deny,

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delay or intentionally interfere with medical treatment, or it may be shown by the way in which
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prison physicians provide medical care.” Jett, 439 F.3d at 1096. Where a prisoner is alleging a

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delay in receiving medical treatment, the delay must have led to further harm in order for the

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prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin v. Smith,

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974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,

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104 F.3d 1133, 1136 (9th Cir. 1997) (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766

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F.2d 404, 407 (9th Cir. 1985)).

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Under both the “professional judgment” and the “deliberate indifference” standards, mere

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negligence or medical malpractice does not violate the Constitution. See Estelle, 429 U.S. at

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106; Patten v. Nichols, 274 F.3d 829, 842–43 (4th Cir. 2001) (applying Youngberg “professional

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judgment” standard to a denial of medical care claim by a civilly committed psychiatric patient

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and holding that more than negligence is required). Also, a plaintiff’s general disagreement with

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the treatment he received does not violate the Constitution. Id.; Jackson v. McIntosh, 90 F.3d

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330, 331 (9th Cir. 1996); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). In

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addition, evidence that medical caregivers disagreed as to the need to pursue one course of

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treatment over another is also insufficient, by itself, to establish deliberate indifference. Jackson,

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90 F.3d at 332. Rather, the plaintiff must show that defendants were aware of the risk of harm

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and that their response to the risk was medically unacceptable under the circumstances. Id.

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V.

DEFENDANT’S UNDISPUTED FACTS (UMF)3
Defendant Powers submitted the following statement of undisputed material facts in

support of his motion for summary judgment. (ECF No. 36-2.)

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Moving Party’s Undisputed Material Facts

Supporting Evidence

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1. Plaintiff’s operative complaint is his First

Plaintiff’s First Amended Complaint

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Amended Complaint.

(“Plaintiff’s FAC”), ECF No. 10.

2. Plaintiff asserts a sole cause of action for

Plaintiff’s FAC, ECF No. 10.

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violation of Plaintiff’s Fourteenth
Amendment rights pursuant to 42 U.S.C.
§1983 against Defendants Audrey King,
Jagsir Sandhu, Coalinga State Hospital, and
Moving Defendant Bradley Powers.

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3. Plaintiff alleges Defendants failed to

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properly treat his Hepatitis C by not

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prescribing Harvoni.

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4. Plaintiff alleges that at least three times

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since July 31, 2015, Plaintiff requested

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Hepatitis C treatment but no treatment

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commenced over the last year.

Plaintiff’s FAC, ECF No. 10, pgs. 3-4.

Plaintiff’s FAC, ECF No. 10, pg. 4.

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3 Plaintiff failed to properly address Defendant’s statement of undisputed facts. Local Rule
260(b). Accordingly, the court may consider Defendant’s assertions of fact as undisputed for purposes of this
motion. Id; Fed. R. Civ. P. 56(e)(2). Plaintiff did submit his own statement of undisputed facts. (ECF No. 44.) In
light of the Ninth Circuit’s directive that a document filed pro se is “to be liberally construed,” Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure that “[p]leadings shall be
construed so as to do justice,” see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081
(2007), the court shall strive to resolve this motion for summary judgment on the merits.

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5. Plaintiff contends Dr. Powers personally

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interfered with a former referral for Harvoni

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by his previous primary care physician by

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withdrawing it.

Plaintiff’s FAC, ECF No. 10, pg. 4.

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6. Plaintiff is currently, and at all relevant

Plaintiff’s FAC, ECF No. 10.

times in this litigation, has been a resident of
Department State Hospitals-Coalinga
(“DSH-Coalinga”).

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7. Harvoni is a relatively new medication

Declaration of Bradley C. Powers, M.D.

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that was approved by the FDA in or around

(“Powers Decl.”) at ¶ 7.

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2014 to treat Hepatitis C.

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8. The Harvoni treatment consists of a daily

Powers Decl. at ¶ 7.

pill taken for 8-24 weeks, depending on the
patient’s HCV genotype, amount of liver
damage, and prior treatment history.
9. Harvoni requires patients to be diligent in

Powers Decl. at ¶ 7.

taking the daily pill continuously.

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10. Missing a dose can result in treatment

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being ineffective.

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Powers Decl. at ¶ 7.

11. One potential side effect of Harvoni is a

Powers Decl. at ¶ 7.

reactivation of a dormant Hepatitis B
infection, which may cause serious liver
problems, including liver failure and death.

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12. The cost of Harvoni medication is

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approximately $ 90,000.

Powers Decl. at ¶ 7.

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13. Pursuant to the California Department of

Powers Decl. at ¶ 8; Ex. B to Declaration

Mental Health Special Order regarding

of Anoush Holaday (“Holaday Decl.”).

Hepatitis C Screening, Diagnosis and
Management Guidelines (“CDMH Special
Order”) for Hepatitis C patients being treated
in a Department of Mental Health facility,
Hepatitis C treatment is recommended for
patients with chronic Hepatitis C who are at
the greatest risk for progressing to cirrhosis.

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14. Prior to initiating treatment, an

Powers Decl. at ¶ 8; Ex. B to Declaration

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assessment is needed that considers the

of Anoush Holaday (“Holaday Decl.”).

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patient’s likelihood of treatment compliance

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and personality traits that impair frustration

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tolerance and reduce the likelihood of

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treatment compliance.

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15. It is also footnoted that additional factors

Powers Decl. at ¶ 8; Ex. B to Declaration

to consider include cognitive capacity and

of Anoush Holaday (“Holaday Decl.”).

ability to understand and follow treatment
directions, as well as Hepatitis B status.

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16. For those patients who do not undergo

Powers Decl. at ¶ 8; Ex. B to Declaration

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treatment for Hepatitis C, management of

of Anoush Holaday (“Holaday Decl.”).

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medical care includes monitoring ALT levels

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and CBC monthly and re-evaluation of

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patient if ALT levels increase above normal

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limits, monitoring for other signs/symptoms

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of liver disease every 4-6 months, and

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screening for hepatocellular carcinoma in

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patients with indicators of advanced liver

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disease.

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17. Plaintiff was diagnosed with Hepatitis C

Plaintiff Raymond Chester’s Deposition

in 1999 at Atascadero State Hospital.

(“Chester Depo.”) pg. 13:21-14:2; Ex. C to
Holaday Decl.

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18. Plaintiff did not seek any treatment for

Chester Depo. pg. 33: 18-21; Ex. C to

his Hepatitis C at this time.

Holaday Decl.

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19. Plaintiff was admitted to Coalinga State

Powers Decl. at ¶ 9; Ex. D to Holaday

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Hospital on 1/14/2009.

Decl., Bates-Stamped pg. POWERS000002

20. From 2011- 2015, Plaintiff was

Powers Decl. at ¶ 10; Ex. D to Holaday

episodically showing signs of liver

Decl., Bates-Stamped pg.

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inflammation, a common course for Hepatitis POWERS000007, POWERS000019,
C infection, but did not show signs of

POWERS000042, POWERS000056-57,

significant irreversible injury to the liver.

POWERS000071, POWERS000084,
POWERS000091-98, POWERS000111112, POWERS000236-242

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21. Plaintiff had liver enzyme elevations

Powers Decl. at ¶ 10; Ex. D to Holaday

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potentially related to ingestion of valproic

Decl., Bates-Stamped pg.

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acid, a drug that was prescribed by the

POWERS000187, POWERS000236-242

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psychiatry team to help with mood

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stabilization secondary to the patient’s

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traumatic brain injury.

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22. Since Plaintiff was without significant

Powers Decl. at ¶ 11; Ex. D to Holaday

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liver injury related to his Hepatitis C

Decl., Bates-Stamped pg.

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infection, Plaintiff’s course of treatment

POWERS000007, POWERS000019,

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related to Hepatitis C consisted of monitoring POWERS000042, POWERS000056-57,

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Plaintiff periodically through lab tests and

POWERS000071, POWERS000084,

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physical check ups, and observing for any

POWERS000091-98

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worsening signs of Hepatitis C.

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23. On October 13, 2014, Plaintiff

Powers Decl. at ¶ 12; Ex. D to Holaday

underwent an abdominal ultrasound which

Decl., Bates-Stamped pg. POWERS000111

showed no liver mass, no bile duct dilatation
and no evidence of enlargement of the liver.

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24. On October 9, 2015, Plaintiff underwent

Powers Decl. at ¶ 13; Ex. D to Holaday

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a CT of his abdomen/pelvis with contrast

Decl., Bates-Stamped pg. POWERS000112

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using a liver protocol, which revealed no

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liver mass, no ascites, no portal vein

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thrombosis, nor fibrosis, and no changes

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suggesting the development of liver cirrhosis.

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25. Despite being diagnosed since 1999,

Chester Depo. pg. 37: 7-11 and 19-23; Ex.

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Plaintiff did not seek any treatment for his

C to Holaday Decl.

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Hepatitis C until on or around fall 2015 from

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his former primary care physician, Dr. Arun

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Hatwalker.

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26. Dr. Hatwalker considered the Harvoni

Powers Decl. at ¶ 14; Ex. D to Holaday

treatment for Plaintiff's Hepatitis C;

Decl., Bates-Stamped pg. POWERS000113

however, he believed Plaintiff’s Hepatitis B
condition could reactivate because of the
Harvoni treatment protocol.
27. On October 15, 2015, he noted to follow

Powers Decl. at ¶ 14; Ex. D to Holaday

up next week to go over possible treatment

Decl., Bates-Stamped pg. POWERS000113

for Hepatitis C.

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28. On October 30, 2015, Dr. Hatwalker

Powers Decl. at ¶ 15; Ex. D to Holaday

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wrote an order for Plaintiff to be referred to

Decl., Bates-Stamped pg. POWERS000114

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an infectious disease specialist for further

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evaluation and the possible treatment of his

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Hepatitis C in the face of concomitant

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Hepatitis B infection.

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29. There is no record of the infectious

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disease consultation form in the patient’s file.

Powers Decl. at ¶ 15.

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30. Dr. Hatwalker rescinded his contract to

Powers Decl. at ¶ 15.

work at Coalinga State Hospital on that same
day, for reasons unknown.

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31. None of Plaintiff's prior primary care

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physicians made a determination or referral

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that Harvoni was an appropriate course of

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treatment for Plaintiff’s Hepatitis C as of the

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end of 2015.

Powers Decl. at ¶ 16.

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32. Dr. Powers began treating Plaintiff on

Powers Decl. at ¶ 17.

November 10, 2015.
33. Plaintiff did not approach Dr. Powers, as

Powers Decl. at ¶ 17; Ex. D to Holaday

his new primary care physician, for treatment

Decl., Bates-Stamped pg. POWERS000122

of his Hepatitis C until July of 2016.

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34. In the weeks following, as Dr. Powers

Powers Decl. at ¶ 18; Ex. D to Holaday

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took over the care of the patient, it was noted

Decl. Bates-Stamped pg.

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that Plaintiff had frequent emotional outbursts POWERS000101-102, POWERS000194,

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with mood lability, and refusals of medical

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diagnosis and treatment.

POWERS000198, POWERS000244-246

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35. In December of 2015, Plaintiff refused

Powers Decl. at ¶ 18; Ex. D to Holaday

treatment for his hypertension and claimed

Decl., Bates-Stamped pg. POWERS000244

that he wanted to die soon because he didn’t
want to live at Coalinga State Hospital.
36. In February 2016, he demanded that all

Powers Decl. at ¶ 18; Ex. D to Holaday

his medications be discontinued, and he

Decl., Bates-Stamped pg. POWERS000245

refused to take his medications
37. In May 2016 he again refused to accept

Powers Decl. at ¶ 18; Ex. D to Holaday

treatment for an acute medical condition, but

Decl., Bates-Stamped pg. POWERS000246

then changed his mind a few days later.

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38. It was also noted that Plaintiff has a

Powers Decl. at ¶ 18; Ex. D to Holaday

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history of refusing multiple recommended

Decl., Bates-Stamped pg.

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medications that were prescribed for his

POWERS000187, POWERS000244-260

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various conditions.

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39. On June 14, 2016, Plaintiff reported to

Powers Decl. at ¶ 19; Ex. D to Holaday

his Treatment Team, typically the

Decl., Bates-Stamped pg. POWERS000108

psychologist, psychiatrist, social worker and
behavioral therapist, that he was interested in
beginning Hepatitis C treatment.
40. He was informed that his treating RN

Powers Decl. at ¶ 19; Ex. D to Holaday

would follow up with his request.

Decl., Bates-Stamped pg. POWERS000115

13

41. On June 29, 2016, his treating nurse,

Powers Decl. at ¶ 20; Ex. D to Holaday

14

Gerard Tiongson, evaluated his Hepatitis C

Decl., Bates-Stamped pg.

15

and noted that he was stable and

POWERS000116-121

16

asymptomatic.

17

42. He was then referred to his primary care

18

physician.

11
12

Powers Decl. at ¶ 20.

19
20
21
22
23
24
25
26

43. On July 28, 2016, Plaintiff formally

Powers Decl. at ¶ 21; Ex. D to Holaday

requested treatment for his Hepatitis C from

Decl., Bates-Stamped pg. POWERS000122

Dr. Powers.
44. Dr. Powers informed him that

Powers Decl. at ¶ 21; Ex. D to Holaday

preliminary testing was required prior to

Decl., Bates-Stamped pg. POWERS000122

beginning any treatment, which upset
Plaintiff.

27
28
15

1

45. Plaintiff initially refused to do testing.

2

Powers Decl. at ¶ 21; Ex. D to Holaday
Decl., Bates-Stamped pg. POWERS000122

3

46. Dr. Powers ordered the tests in case

Powers Decl. at ¶ 21; Ex. D to Holaday

4

Plaintiff changed his mind.

Decl., Bates-Stamped pg. POWERS000122

47. On August 10, 2016, Plaintiff’s blood

Powers Decl. at ¶ 22; Ex. D to Holaday

tests showed normal CBC, normal liver

Decl., Bates-Stamped pg.

function testing, except mild elevation of

POWERS000123-127

5
6
7
8
9
10
11
12
13
14

total bilirubin, and low viral load of hepatitis
C infection. Thyroid testing was also within
normal limits at that time.
48. On August 23, 2016, Dr. Powers

Powers Decl. at ¶ 23; Ex. D to Holaday

approached Plaintiff regarding treating him

Decl., Bates-Stamped pg. POWERS000122

for Hepatitis.

15

49. Dr. Powers informed him that he needed

Powers Decl. at ¶ 23; Ex. D to Holaday

16

to be vaccinated against the Hepatitis B

Decl., Bates-Stamped pg. POWERS000122

17

because he had no evidence of immunity, but

18

did have evidence of prior Hepatitis B

19

infection.

20
21
22
23
24
25
26
27
28

50. Dr. Powers also noted that in order to

Powers Decl. at ¶ 23; Ex. D to Holaday

treat Plaintiff’s Hepatitis C and to avoid any

Decl., Bates-Stamped pg. POWERS000122

further liver damage or complications due to
interactions between the newer Hepatitis C
treatments—such as Harvoni--and
reactivation of a dormant Hepatitis B
infection, a Hepatitis B vaccination was
medically necessary.
16

1

51. On August 24, 2016, Dr. Powers ordered

Powers Decl. at ¶ 24; Ex. D to Holaday

2

the Hepatitis B vaccination for Plaintiff.

Decl., Bates-Stamped pg.

3

POWERS000128, POWERS000141

4
5
6
7
8
9

52. On October 20, 2016, Dr. Powers

Powers Decl. at ¶ 25; Ex. D to Holaday

ordered a fiber scan of Plaintiff’s liver to

Decl., Bates-Stamped pg. POWERS000129

further evaluate Plaintiff’s status of liver
damage.
53. On October 26, 2016 Plaintiff’s

Powers Decl. at ¶ 25; Ex. D to Holaday

10

fibroscan results showed low inflammation

Decl., Bates-Stamped pg.

11

of the liver. At that time, FIB4 and APRI

POWERS000130-131

12

calculations also suggested low

13

inflammation.

14
15
16
17
18
19
20
21
22
23

54. From March 2016- October 2016,

Powers Decl. at ¶ 26; Ex. D to Holaday

routine check ups with his treating RN also

Decl., Bates-Stamped pg.

revealed Plaintiff did not demonstrate any

POWERS000132-140

signs or symptoms of liver impairment.
55. Pursuant to the CDMH Special Order,

Powers Decl. at ¶ 27.

Dr. Powers performed an assessment to
determine whether Harvoni was an
appropriate course of treatment for Plaintiff's
Hepatitis C.

24
25
26
27
28
17

1

56. Based on review of Plaintiff's medical

Powers Decl. at ¶ 28; Ex. D to Holaday

2

record, Plaintiff had a history of a severe

Decl. Bates-Stamped pg.

3

traumatic brain injury, which causes

POWERS000101-102, POWERS000169-

4

significant episodes of irrationality,

170, POWERS000173, POWERS000177-

5

irritability, lack of impulse control, low

179, POWERS000184-187,

6

frustration tolerance, poor decision making,

POWERS000191, POWERS000193-198,

7

and profound noncompliance with

POWERS000244-260

8

recommended medical treatment.

9

57. Given these psychological issues, Dr.

10

Powers determined that Plaintiff’s mental

11

health issues could sabotage his ability to

12

complete a course of treatment with Harvoni.

Powers Decl. at ¶ 28.

13
14
15
16
17
18
19
20
21
22
23
24

58. Upon reviewing Plaintiff’s multiple

Powers Decl. at ¶ 29.

diagnostic tests, which were within normal
range and did not show any impaired liver
function, and considering Plaintiff’s mental
health issues, Dr. Powers determined that
Plaintiff was not a good candidate for
Harvoni at that time
59. Based on his professional judgment, Dr.

Powers Decl. at ¶ 29.

Powers found that Plaintiff’s Hepatitis C had
not progressed to a level that necessitated
treatment with Harvoni.

25
26
27
28
18

1

60. Dr. Powers’ plan at that time was to

2

continue to monitor Plaintiff’s laboratory

3

parameters, and to slowly build rapport with

4

him so that he could help Plaintiff understand

5

the absolute importance of completing the

6

Harvoni treatment from the first day though

7

the last due to Plaintiff’s history of lack of

8

cooperation with taking prescribed

9

medication and concern that Plaintiff would

10

not complete treatment even if he was a good

11

Powers Decl. at ¶ 29.

candidate.

12
13
14
15
16
17
18
19
20

61. Although it is true that chronic Hepatitis

Powers Decl. at ¶ 29

C infection frequently leads to liver cirrhosis
and sometimes liver cancer over a period of
10 to 30 years, at this juncture, there was no
evidence of any of these more serious
conditions nor was there evidence that the
Plaintiff had significant inflammation in his
liver.

21

62. Dr. Powers’ recommended course of

22

treatment was to continue to monitor

23

Plaintiff’s Hepatitis C condition through

24

routine lab tests, physical check ups and

25

observe for any worsening signs of his

26

conditions.

27

63. On February 1, 2017, Plaintiff received

Powers Decl. at ¶ 31, Ex. D to Holaday

28

his third dose of the Hepatitis B vaccine.

Decl., Bates-Stamped pg. POWERS000161

Powers Decl. at ¶ 30.

19

1

64. Plaintiff remained asymptomatic for

Powers Decl. at ¶ 32; Ex. D to Holaday

2

clinical signs of hepatic dysfunction from

Decl., Bates-Stamped pg.

3

January 2017 through October 2017.

POWERS000142-160

65. On July 13, 2017, Dr. Powers ordered

Powers Decl. at ¶ 33; Ex. D to Holaday

further blood tests to assess Plaintiff’s

Decl., Bates-Stamped pg.

Hepatitis B and C conditions; however,

POWERS000162-163

4
5
6
7
8
9

Plaintiff did not show up for his tests.
66. On or around September 2017, Dr.

Powers Decl. at ¶ 34.

10

Powers was moved to a different unit and no

11

longer was Plaintiff's primary care physician.

12

67. On November 9, 2017, Plaintiff

Powers Decl. at ¶ 35; Ex. D to Holaday

13

underwent a fibrosis calculator which

Decl., Bates-Stamped pg.

14

showed low inflammation of the liver.

POWERS000164-165

68. On December 13, 2017, another

Powers Decl. at ¶ 36; Ex. D to Holaday

physician, Anthony Miller, M.D., prescribed

Decl., Bates-Stamped pg. POWERS000166

15
16
17
18
19

Plaintiff Harvoni.
69. Plaintiff did not take two doses of

Powers Decl. at ¶ 37; Ex. D to Holaday

Harvoni, on January 16, 2018 and January

Decl., Bates-Stamped pg.

21, 2018.

POWERS000261-262

23

70. Plaintiff does not currently suffer from

Chester’s Depo pg. 22:9-21; 41:4-11; Ex.

24

Hepatitis C and is cured of the condition.

C to Holaday Decl.

20
21
22

25
26
27

Powers Decl. at ¶ 38; Ex. D to Holaday
Decl., Bates-Stamped pg.
POWERS000199-234

28
20

1

71. Plaintiff did not suffer any injury caused

Chester’s Depo. pg. 43:14-16; 49:6-9; Ex.

2

by a delay in receiving Harvoni.

C to Holaday Decl.

3

Powers Decl. at ¶ 39.

4
5
6
7

72. Plaintiff did not seek or receive any

Chester’s Depo. pg. 43:23-44:3; Ex. C to

medical treatment for any injury caused by a

Holaday Decl.

delay in receiving Harvoni.

8

73. As of November 2018, the results of

Powers Decl. at ¶ 39; Ex. D to Holaday

9

Plaintiff's laboratory testing show no

Decl., Bates-Stamped pg.

10

evidence of infection due to Hepatitis C and

POWERS000199-234

11

normal liver function testing. Platelet count,

12

another marker of chronic liver injury, also

13

remains in the normal range.

14
15
16
17
18
19
20

74. No act or omission by Dr. Powers

Powers Decl. at ¶ 39.

caused or contributed to Plaintiff's alleged
injuries.
75. Dr. Powers course of treatment was

Powers Decl. at ¶ 42.

appropriate in consideration of Plaintiff’s
medical condition.

21
22

76. Dr. Powers complied with the standard

23

of care for family physicians and was not

24

deliberately indifferent to Plaintiff's medical

25

Powers Decl. at ¶ 42.

needs.

26
27
28
21

1

77. No physicians have informed Plaintiff

Chester’s Depo. pg. 43:14-16; Ex. C to

2

that the delay in receiving Harvoni caused

Holaday Decl.

3

him any damage or medical complications.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

VI.

DEFENDANT POWERS’ POSITION4
Defendant’s evidence includes Plaintiff’s First Amended Complaint (ECF No. 36-4),

defendant Bradley Powers’ declaration (ECF No. 36-8), California Department of Mental Health
Special Order dated January 1, 2003 (ECF No. 36-5), Plaintiff’s deposition testimony (ECF No.
36-6), and Plaintiff’s medical records (ECF No. 56). Defendant Powers argues that Plaintiff
cannot establish that Defendant failed to act with professional judgment when treating Plaintiff,
or that Plaintiff was injured by Dr. Powers’ conduct as required to meet the burden under the
Fourteenth Amendment.
A.

Dr. Powers was not Deliberately Indifferent to Plaintiff’s Medical Needs

Defendant first argues that Plaintiff has not established that he was denied constitutionally
adequate medical care. Dr. Powers declares that he became Plaintiff’s primary treating physician
on November 10, 2015, (Defendant’s Undisputed Material Facts (UMF) 32, Powers Decl., ECF
No. 36-8 at 4 ¶ 17), but that Plaintiff did not approach him, as his new primary care physician,
for treatment of his Hepatitis C until July of 2016, (UMF 33, Powers Decl. at 4 ¶ 17; Exh. D to
Holaday Decl., ECF No. 56-1 at 122).
On July 28, 2016, Plaintiff formally requested treatment for his Hepatitis C from Dr.
Powers, but Plaintiff initially refused to do any preliminary testing for an evaluation of Hepatitis
C treatment. (UMF 43-45, Powers Decl. at 5 ¶ 21, Exh. D to Holaday Decl., ECF No. 56-1 at
122.) Once Plaintiff cooperated, Dr. Powers performed a medical evaluation of Plaintiff’s fiber
scan, blood test results, and RN progress notes, which all revealed normal liver functioning, with
no signs or symptoms of liver impairment that would indicate that treatment was medically

26
27
The court’s references to page numbers in Defendant’s Exhibit D to Holaday Decl. reflect the
page numbers appearing after “POWERS000,” which are Bates-stamped at the bottom of each page of the exhibit.
(See ECF No. 56-1.) Otherwise, the page numbers cited herein are those assigned by the court's CM/ECF system.
4

28

22

1

necessary. (UMF Nos. 47, 52-54, Powers Decl. at ¶¶ 22, 25-26; Ex. D to Holaday Decl. at 123-

2

127, 129, 130-140.)

3

In addition, based on review of Plaintiff’s medical record, Plaintiff has a history of a

4

severe traumatic brain injury, which causes significant episodes of irrationality, irritability, lack

5

of impulse control, low frustration tolerance, poor decision making, and profound noncompliance

6

with recommended medical treatment. (UMF No. 56, Powers Decl. at ¶ 28; Ex. D to Holaday

7

Decl. at 101-102, 169-170, 173, 77-179, 184-187, 191, 93-198, 244-260.) It was also noted that

8

Plaintiff has a history of refusing multiple recommended medications that were prescribed for

9

his various conditions. (UMF Nos. 34-38, Powers Decl. at ¶ 18; Ex. D to Holaday Decl. at 101-

10

102, 187, 194, 198, 244-260.) Given these psychological issues, Dr. Powers determined that

11

Plaintiff’s mental health issues could sabotage his ability to complete a course of treatment with

12

Harvoni. (UMF No. 57, Powers Decl. at ¶ 28.) In fact, as Dr. Powers predicted, Plaintiff was

13

non-compliant during the course of his Harvoni treatment and did not take two doses of the

14

prescribed medication, on January 16, 2018 and January 21, 2018, thereby jeopardizing the

15

efficacy of his treatment. (UMF No. 69, Powers Decl. at ¶ 37; Ex. D to Holaday Decl. at 261-

16

262.)

17

Upon reviewing Plaintiff’s multiple diagnostic tests, which were within normal range

18

and did not show any impaired liver function, and considering Plaintiff’s mental health issues,

19

Dr. Powers determined that Plaintiff was not a good candidate for Harvoni at that time. (UMF

20

No. 58, Powers Decl. at ¶ 29.) Based on his professional judgment, Plaintiff’s Hepatitis C had

21

not progressed to a level that necessitated treatment with Harvoni. (UMF Nos. 58-59, Powers

22

Decl. at ¶ 29.) Dr. Powers’ plan at that time was to continue to monitor Plaintiff’s laboratory

23

parameters, and to slowly build rapport with him so that he could help Plaintiff understand the

24

absolute importance of completing the Harvoni treatment from the first day though the last due

25

to Plaintiff’s history of lack of cooperation with taking prescribed medication and concern that

26

Plaintiff would not complete treatment even if he was a good candidate. (UMF No. 60, Powers

27

Decl. at ¶ 29.) At that time, there was no evidence that Plaintiff’s Hepatitis C infection would

28

lead to liver cirrhosis or liver cancer. (UMF No. 61, Powers Decl. at ¶ 29.)
23

1

Given all the above, Dr. Powers determined that Plaintiff was not a good candidate for

2

Harvoni at that time. (UMF Nos. 47, 52-61, Powers Decl. at ¶¶ 22, 25-29; Ex. D to Holaday

3

Decl. at 101-102, 123-127, 129-140, 169-70, 173, 177-179, 184-187, 191, 193-198, 244-260.)

4

Defendant argues that Plaintiff cannot state a triable issue of material fact as Dr. Powers’

5

treatment met the appropriate standard of care for a medical provider because a decision made

6

by a professional is presumptively valid; liability may only be imposed when the decision by the

7

professional is such a substantial departure from accepted professional judgment, practice, or

8

standards as to demonstrate that the person responsible actually did not base the decision on such

9

judgment; and more than negligence is required to show denial of a medical care claim by a

10

civilly committed psychiatric patient.

11

Plaintiff contends his constitutional rights were violated when Dr. Powers “personally

12

interfered with the former referral for Harvoni by withdrawing it.” (UMF No. 5, First Amended

13

Complaint, ECF No. 10 at 4.) However, Defendant provides evidence that none of Plaintiff’s

14

prior primary care physicians made a determination or referral that Harvoni was an appropriate

15

treatment for Plaintiff’s Hepatitis C prior to Dr. Powers becoming one of Plaintiff’s primary

16

treating physicians. (UMF No. 31, Powers Decl. at ¶ 16.) Dr. Powers argues that he did not deny

17

or withdraw any treatment to Plaintiff, who was diagnosed with Hepatitis C a decade later. (UMF

18

Nos. 17, 31, Plaintiff’s Deposition, pg. 13:21-14:2; Ex. C to Holaday Decl., Powers Decl. at ¶

19

16.)

20

Dr. Powers’ recommended course of treatment consisted of monitoring Plaintiff’s

21

Hepatitis C condition through routine lab tests, physical check ups and observation for any

22

worsening signs of his conditions. (UMF No. 62, Powers Decl. at ¶ 30.) Dr. Powers’ plan at that

23

time was to continue to monitor Plaintiff’s laboratory parameters and to slowly build rapport with

24

him so that he could help Plaintiff understand the absolute importance of completing the Harvoni

25

treatment from the first day through the last due to Plaintiff’s history of lack of cooperation with

26

taking prescribed medication and concern that he would not complete treatment even if he was a

27

good candidate. (UMF No. 60, Powers Decl. at ¶ 29.) Dr. Powers even treated Plaintiff’s

28

Hepatitis B in order to avoid any further liver damage or complications due to interactions
24

1

between the newer Hepatitis C treatments – such as Harvoni – and reactivation of a dormant

2

Hepatitis B infection. (UMF Nos. 48-51, 63, Powers Decl. at ¶¶ 23, 24; Ex. D to Holaday Decl.

3

at 122, 128, 141.) Defendant claims that overall, the undisputed facts demonstrate attentiveness

4

to Plaintiff’s medical needs, not deliberate indifference.

5

Defendant also contends that the fact that Dr. Powers prescribed a different course of

6

treatment than the Harvoni medication requested by Plaintiff does not amount to deliberate

7

indifference, and there is no evidence that the treatment provided was medically unsound. Dr.

8

Powers performed an evaluation of Plaintiff’s Hepatitis C condition pursuant to CDMH Special

9

Order guidelines and given the lack of any signs or symptoms of liver impairment and low risk

10

of progressing to cirrhosis, he determined that continued monitoring was medically appropriate.

11

(UMF Nos. 47, 52-62, Powers Decl. at ¶¶ 22, 25-30; Ex. D to Holaday Decl. at 101-102, 123-

12

127, 129-140, 169-170, 173, 177-179, 184-187, 191, 193-198, 244-260.)

13
14

Defendant concludes that he is entitled to summary judgment as Plaintiff cannot show
that Defendant was deliberately indifferent.

15

B.

16

Defendant contends that Plaintiff cannot prove the requisite level of causation or harm

17

because Plaintiff did not suffer any permanent injury as he is completely cured of Hepatitis C

18

and does not currently suffer from the condition. (UMF No. 70, Plaintiff’s Deposition, pg. 22:9-

19

21; 41:4-11; Ex. C to Holaday Decl.; Powers Decl. at ¶ 38; Ex. D to Holaday Decl. at 199-234.)

20

As of November 2018, the results of Plaintiff’s laboratory testing show no evidence of infection

21

due to Hepatitis C and normal liver function testing. (UMF No. 73, Powers Decl. at ¶ 39; Ex. D

22

to Holaday Decl. at 199-234.) Platelet count, another marker of chronic liver injury, also

23

remained in the normal range. (Id.)

Plaintiff Cannot Prove Cause of Injury

24

Defendant also contends that Plaintiff did not suffer any temporary injury due to a delay

25

in receiving Harvoni. No physician has informed Plaintiff that the delay in receiving Harvoni

26

caused him any damage or medical complications. (UMF Nos. 71-72, Plaintiff’s Deposition, pg.

27

43:14-16; 43:23-44:3, 49:6-9; Ex. C to Holaday Decl.; Powers Decl. at ¶ 39.) In addition,

28

Plaintiff remained asymptomatic for clinical signs of hepatic dysfunction from January 2017
25

1

through October 2017. (UMF No. 64; Powers Decl. at ¶ 32; Ex. D to Holaday Decl. at 142-160.)

2

There are no medical records that illustrate that Plaintiff suffered any damage in the interim from

3

the time he requested Harvoni from Dr. Powers until the time he received the treatment, and

4

Defendant argues that overall the undisputed facts show that no act or omission by Dr. Powers

5

caused or contributed to Plaintiff’s alleged injuries. (UMF Nos. 70-77, Plaintiff’s Deposition at

6

22:9-21; 41:4-11, 43:14-16, 43:23-44:3, 49:6-9, Ex. C to Holaday Decl.; Powers Decl. at ¶ 38,

7

39, 42; Ex. D to Holaday Decl. at 199-234.)

8

To the extent that Plaintiff argues that he did suffer an injury from a delay in receiving

9

Harvoni based on the way he felt, Defendant argues that Plaintiff’s own opinion is insufficient

10

to withstand summary judgment, and Plaintiff must have expert testimony regarding whether Dr.

11

Powers’ care actually caused an injury to him. Defendant asserts that under Hansen v. United

12

States, 7 F.3d 137, 138 (9th Cir. 1993), bare allegations unsupported by any factual data do not

13

give rise to a genuine dispute of material fact.

14

Defendant concludes that based on Dr. Powers’ judgment as a medical professional,

15

Plaintiff now has the burden to produce a declaration from a competent expert to the contrary as

16

to causation, and in the absence of such a showing, Dr. Powers’ declaration is controlling and

17

Defendant’s Motion for Summary Judgment should be granted.

18

VII.

DEFENDANT’S BURDEN

19

Based on Defendant’s arguments and evidence in support of his motion for summary

20

judgment, the court finds that Defendant has met his burden of demonstrating that he did not act

21

with deliberate indifference to Plaintiff’s serious medical needs, or fail to use his judgment as a

22

medical professional. Therefore, the burden now shifts to Plaintiff to produce evidence of a

23

genuine material fact in dispute that would affect the final determination in this case.

24

VIII. PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS (SUF)

25

Plaintiff submitted the following undisputed facts in support of his motion. (ECF No. 41

26

at 19-26.) The court finds that while most of Plaintiff’s facts are disputed, there is no genuine

27

issue of material fact for trial.

28
26

1
2

Plaintiff’s Undisputed Material Facts and Response and Opposition of Defendant

3

Supporting Evidence

Bradley C. Powers, M.D.

5

Plaintiff Raymond D. Chester, Jr. (Plaintiff)

1. Undisputed.

6

contracted Hepatitis C Virus (HCV) in 1997.

4

7
8

(Deposition of Raymond Chester, Exhibit

9

C to Defendant Powers’ Motion for

10

Summary Judgment (Powers’ MSJ), pp.

11

13-14

12
13

2. Plaintiff received no treatment for HCV. 5 2. Objection. Vague and ambiguous as to

14
15

time.
(Id., p. 14.)

16

Undisputed that Plaintiff received no

17

treatment for Hepatitis C (“HCV”) in 1999 at

18

Atascadero State Hospital because he did not

19

seek any treatment.

20
21

Plaintiff Raymond Chester’s Deposition

22

(“Chester Depo.”) pg. 33:18-21.

23
24
25
26
5

27
28

SUF No. 2. Defendant objects to this fact as vague and ambiguous as to time, but does not
dispute Plaintiff’s testimony at his deposition that in 1999 he received no treatment for Hepatitis C (“HCV”) at
Atascadero State Hospital because he did not seek any treatment at that time. Therefore, this fact, as it reflects
Plaintiff’s deposition testimony, is undisputed.
27

1

3. The medication to cure HCV, Harvoni®,

2

was approved for prescription use in the

3

U.S.A. on February 10, 2014. 6

4

3. Objection. Not authenticated.

Undisputed that Harvoni is a relatively new
medication that was approved by the FDA in

5

(U.S. Food and Drug Administration

6

Website.)

or around 2014 to treat Hepatitis C.

7

Declaration of Bradley C. Powers, M.D.

8

(“Powers Decl.”) at ¶ 7.

9
10

4. Plaintiff filed the operative complaint in

11

this action on August 31, 2017

4. Undisputed.

12
13

(Verified First Amended Complaint, ECF

14

10.)

15
16
17
18
19
20
21
22
23
24
25
26
6

27
28

SUF No. 3. Defendant objects to this fact because it is not authenticated. Plaintiff attributes this
fact to the U.S. Food and Drug Administration Website without providing a proper cite for the website. Defendant
has restated the fact to reflect defendant Powers’ statement in his declaration. The restated fact is materially the
same as Plaintiff’s statement in SUF No. 3 and therefore is undisputed.
28

1

5. Plaintiff suffered extreme pain and

5. Objection. Conclusory. Vague and

2

suffering, physical and emotional.7

ambiguous as to time and scope. Assumes

3

facts. Lacks foundation. This purported

4

(Deposition of Raymond Chester, Exhibit

“fact” is improper as it relates to scientific

5

C to Powers’ MSJ, P. 41.)

issues beyond knowledge of average juror

6

and expert causation testimony required. See

7

Sanderson v. Int’l Flavors & Fragrances,

8

950 F. Supp. 981, 985 (C.D. Cal. 1996).

9
10

Disputed as from 2011- 2015, Plaintiff was

11

episodically showing signs of liver

12

inflammation, a common course for Hepatitis

13

C infection, but did not show signs of

14

significant irreversible injury to the liver.

15

Plaintiff further remained asymptomatic for

16

clinical signs of hepatic dysfunction from

17

January 2017 through October 2017.

18
19
20
21
22
23
24
25
26

Powers Decl. at ¶ 10, 32; Ex. D to Holaday
Decl., Bates-Stamped pg.
POWERS000007, POWERS000019,
POWERS000042, POWERS000056-57,
POWERS000071, POWERS000084,
POWERS000091-98, POWERS000111112, POWERS000142-160,
POWERS000236-242

27
28
29

1

6. Defendant Powers told Plaintiff to “just

6. Objection. This purported “fact” directly

2

meditate” in lieu of treatment for HCV.8

contradicts the record.

(Id., p. 41.)

Disputed as Dr. Powers’ recommended

3
4
5

course of treatment was to continue to

6

monitor Plaintiff’s Hepatitis C condition

7

through routine lab tests, physical check ups

8

and observe for any worsening signs of his

9

conditions, to build a rapport with Plaintiff,

10

and to treat Plaintiff's Hepatitis B infection.

11

Powers Decl. at ¶ 23, 29-30; Exhibit D to

12

Declaration of Anoush Holaday (“Holaday

13

Decl.”), Bates-Stamped pg.

14

POWERS000122

15
16
17
18
19
20
21
22
23

7

SUF No. 5. Defendant objects to this fact as conclusory, vague and ambiguous as to time and
scope, lacking foundation, assuming facts, and constituting an improper lay opinion. Lay opinion may be offered
by laymen under Rule 701 of the Federal Rules of Evidence so long as the opinion is based on the witness’s own
perception, is helpful to understanding the witness’s testimony or to determining a fact in issue, and is not based on
the kinds of specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. Plaintiff’s statement that he
experienced pain is rationally based on his perceptions, id. R. 701(a), and gives no opinion about the cause of his
pain. However, because Plaintiff does not indicate when, or under what circumstances, he experienced pain, this
fact, without more, is disputed as ambiguous as to time and scope. Furthermore, Plaintiff cites his deposition
testimony on page 41 as evidence supporting this fact, but on page 41 Plaintiff does not testify that he suffered any
physical pain. Therefore, the court finds that SUF No. 5 is disputed.

24
25
26
27
28

8
SUF No. 6. This fact contradicts Plaintiff’s medical records and Dr. Powers’ declaration, which
both indicate that Dr. Powers had a plan to work with Plaintiff so Plaintiff would understand the testing and treatment
he needed and that a Hepatitis B vaccination was medically necessary prior to treatment of his Hepatitis C. Plaintiff’s
allegation that Defendant told him to “just meditate” instead of treatment is not supported by the record and fails to
create a genuine issue of material fact for trial. See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d
686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable juror could believe it, a court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.”). Therefore, the court finds that this fact is disputed.

30

1

7. All Defendants herein knew of Plaintiff’s

7. Objection. Vague and ambiguous.

2

HCV infection in 2011. 9

Conclusory. This purported “fact” directly

3

contradicts the record.

4

(Id., Exhibit D, Wellness & Recovery Plan,

5

pp 1-1 of 32.)

6

Disputed as Dr. Powers did not began
treating Plaintiff until November 10, 2015.

7

Powers Decl. at ¶ 17.

8
9
10

8. Plaintiff received no treatment for HCV

8. Objection. Conclusory. Vague and

infection at that time.10

ambiguous as to time. Assumes Facts.

(Id., Exhibit D.)

Undisputed as none of Plaintiff’s prior

11
12

primary care physicians made a

13

determination or referral that Harvoni was an

14

appropriate course of treatment for Plaintiff’s

15

Hepatitis C as of the end of 2015.

16
17

Powers Decl. at ¶ 16.

18
19
20
21
22
23
24
25

9

SUF No. 7. This fact contradicts the record, which shows that Dr. Powers did not begin treating
Plaintiff until November 10, 2015. Powers Decl. § 16 (“I became the primary treating physician for Plaintiff on
November 10, 2015.”) Therefore, it fails to create a genuine issue of material fact for trial. See Scott, 550 U.S. 372.
The court finds that this fact is disputed.

26
10

27
28

SUF 8. Defendant objects to this fact as conclusory, vague and ambiguous as to time and scope,
lacking foundation, assuming facts, and contradicting the record. However, Defendant also find this fact to be
undisputed “as of 2015.” The court finds it undisputed that Plaintiff received no treatment for his HCV infection as
of 2015.
31

1

9. Plaintiff experienced progressively worse

9. Objection. Conclusory. Vague and

2

HCV pain and symptoms.11

ambiguous as to time and scope. Assumes
facts. This purported “fact” directly

3
4

(Id., Exhibit C, Wellness & Recovery Plan,

5

12/01/2014, p. 4 of 14.)

contradicts the record.

6

Disputed. Although not correctly identified,

7

the record is Exhibit D to Holaday Decl.

8

Bates-Stamped pg. POWERS000084, which

9

shows that Plaintiff was asymptomatic at the

10

time.

11
12

From 2011- 2015, Plaintiff was episodically

13

showing signs of liver inflammation, a

14

common course for Hepatitis C infection, but

15

did not show signs of significant irreversible

16

injury to the liver. Plaintiff had liver enzyme

17

elevations potentially related to ingestion of

18

valproic acid, a drug that was prescribed by

19

the psychiatry team to help with mood

20

stabilization secondary to the patient’s

21

traumatic brain injury.

22
23
24
25
26
27
28

Powers Decl. at ¶ 10; Ex. D to Holaday
Decl., Bates-Stamped pg.
POWERS000007, POWERS000019,
POWERS000042, POWERS000056-57,
POWERS000071, POWERS000084,
POWERS000091-98, POWERS000111-

32

1

112, POWERS000187, POWERS000236-

2

242

3
4

10. Plaintiff still given no treatment for

10. Objection. Conclusory. Vague and

5

HCV infection. 12

ambiguous as to time and scope. Assumes

6

facts.

7

(Id., Wellness & Recovery Plan,

8

12/08/2015, p. 4 of 13.)

9

Undisputed to the extent that Plaintiff did not
request treatment from Dr. Powers until July

10

2016 and none of Plaintiff’s prior primary

11

care physicians made a determination or

12

referral that Harvoni was an appropriate

13

course of treatment for Plaintiff’s Hepatitis C

14

as of the end of 2015.

15
16

Powers Decl. at ¶ 16, 17, 21; Ex. D to

17

Holaday Decl., Bates-Stamped pg.

18

POWERS000122

19
20

Although not correctly identified, the record

21
22
23
24

11

SUF No. 9. Defendant objects to this fact as conclusory, vague and ambiguous as to time and
scope, assuming facts, and contradicting the record. The medical record to which Plaintiff apparently refers, page
4 of 14 of his DHS Treatment Plan, reflects that on 12/01/2014, Plaintiff’s “Hep C (HMC) [is] Asymptomatic.”
(ECF No. 56-1 at 91.) SUF 9 contradicts the medical record and is therefore disputed. Moreover, because he is a
layman, Plaintiff cannot testify that any pain or distress he suffered was caused by Dr. Powers’ course of treatment.
(Fed. R. Evid. 701.)

25
12

26
27
28

SUF No. 10. Defendant objects to this fact as conclusory, vague and ambiguous as to time and
scope, and assuming facts. However, Defendant also find this fact to be Undisputed to the extent that “Plaintiff did
not request treatment from Dr. Powers until July 2016 and none of Plaintiff’s prior primary care physicians made a
determination or referral that Harvoni was an appropriate course of treatment for Plaintiff’s Hepatitis C as of the end
of 2015,” which reflects the record, Dr. Powers’ declaration and Plaintiff’s medical record at ECF No. 156 at 129.
The court finds this fact to be disputed as to time and scope.
33

1

is Exhibit D to Holaday Decl. Bates-Stamped

2

pg. POWERS000098, which shows that

3

Plaintiff was asymptomatic at the time.

4
5

11. Plaintiff once again requested Harvoni®

11. Objection. Conclusory. Vague and

6

treatment for his HCV infection on

ambiguous as to time and scope. Assumes

7

6/14/2016.13

facts. This purported “fact” directly

8
9
10

contradicts the record.
(Id., Medical Interdisciplinary Notes
(IDN), 6/14/2016)

Disputed to the extent that Plaintiff did not

11

request treatment from Dr. Powers until July

12

28, 2016. On June 14, 2016, Plaintiff

13

reported to his Treatment Team, typically the

14

psychologist, psychiatrist, social worker and

15

behavioral therapist, that he was interested in

16

beginning Hepatitis C treatment. He was

17

informed that his treating RN would follow

18

up with his request.

19
20

Powers Decl. at ¶ 19-21; Ex. D to Holaday

21

Decl., Bates-Stamped pg.

22

POWERS000108, POWERS000122

23
24
25
26
27
28

13

SUF 11. Defendant disputes this fact, as it directly contradicts the record at ECF No. 56-1 at
115 which indicates that on 06/14/16 Plaintiff reported to his treatment team (which did not include Dr. Powers) that
he was interested in beginning Hep C treatment but does not indicate that Plaintiff requested Harvoni treatment. The
court finds this fact to be disputed.
34

1

12. Defendant Powers ordered Hepatitis B

2

treatment for Plaintiff.

12. Undisputed.

3
4

(Id., Physician’s Progress Note, 8/23/16)

5
6

13. Plaintiff's HCV RNSA count extremely

13. Objection. Conclusory. Lacks

7

high.14

foundation. Speculative. This purported
“fact” directly contradicts the record. This

8
9

(Id., Test Report, HCV RNA, 7/29/2016.)

purported “fact” is improper as it relates to

10

scientific issues beyond knowledge of

11

average juror and expert causation testimony

12

required. See Sanderson v. Int’l Flavors &

13

Fragrances, 950 F. Supp. 981, 985 (C.D.

14

Cal. 1996).

15
16

Disputed to the extent that Plaintiff's blood

17

tests showed normal CBC, normal liver

18

function testing, except mild elevation of

19

total bilirubin, and low viral load of hepatitis

20

C infection. Thyroid testing was also within

21

normal limits at that time.

22
23

Powers Decl. at ¶ 22; Ex. D to Holaday

24

Decl., Bates-Stamped pg.

25

POWERS000123-127

26
27
14

28

SUF No. 13. Defendant disputes this fact because it directly contradicts the record, and because
Plaintiff, as a layman, may not properly interpret the medical record to which he refers. The court finds this fact to
be disputed.
35

1
2

14. Defendant Powers still not

14. Objection. Conclusory. Lacks

3

acknowledging need for HCV medication.15

foundation. Speculative. This purported
“fact” directly contradicts the record.

4
5

(Id., DMH RN Progress Note, 2/13/2017, p.

6

3 of 6.)

Although not correctly identified, the record

7

is Exhibit D to Holaday Decl. Bates-Stamped

8

pg. POWERS000150, which shows that

9

Plaintiff was asymptomatic and stable at the

10

time.

11
12

Disputed as Dr. Powers’ recommended

13

course of treatment was to continue to

14

monitor Plaintiff’s Hepatitis C condition

15

through routine lab tests, physical check ups

16

and observe for any worsening signs of his

17

conditions. Plaintiff remained asymptomatic

18

for clinical signs of hepatic dysfunction from

19

January 2017 through October 2017.

20

Powers Decl. at ¶ 30, 32; Ex. D to Holaday

21

Decl., Bates-Stamped pg.

22

POWERS000142-160

23
24
25
26
27
28

15

SUF No. 14. Defendant states that Plaintiff has not correctly identified the record, which is
found at ECF No. 56-1 (Exhibit D) at POWERS000150. The court finds this fact to be ambiguous as to whether
there was a need for HCV medication which Defendant failed to acknowledge, or whether Defendant acknowledged
that there was no need for medication. Therefore, the court finds this fact to be disputed.
36

1

15. Defendant Powers ordered Pre-HCV

15. Undisputed to the extent that on July 13,

2

treatment on 7/13/2017.16

2017, Dr. Powers ordered further blood tests
to assess Plaintiff’s Hepatitis B and C

3
4

(Id., Physician’s Orders, 7/23/2017.)

5

conditions; however, Plaintiff did not show
up for his tests.

6

Powers Decl. at ¶ 33; Ex. D to Holaday

7

Decl., Bates-Stamped pg.

8

POWERS000162-163

9
10
11
12

16. Defendant Powers finally prescribes

16. Objection. This purported “fact” directly

Harvoni® to Plaintiff on 12/13/2017. 17

contradicts the record.

(Id., Physician’s Notes, 12/13/2017.)

Disputed as on or around September 2017,

13
14

Dr. Powers was moved to a different unit and

15

no longer was Plaintiff’s primary care

16

physician.

17
18

Powers Decl. at ¶ 34

19

17. Plaintiff’s HCV levels undetectable

20

2/06/2018.

17. Undisputed.

21
22

(Id., PIL [Lab] Test Reports, 2/07/2018,

23

2/20/2018, 7/11/2018, and 11/29/2018.

24
25
26

16

SUF No. 15. This fact is undisputed to the extent it indicates that on 7/13/17 Dr. Powers
ordered blood tests to assess Plaintiff’s Hepatitis B and C conditions.

27
17

28

SUF No. 16. This fact contradicts the record because Dr. Powers was no longer caring for
Plaintiff on 12/13/17. Dr. Powers moved to a different unit on or about September 2017. The court find this fact
to be disputed.
37

1

IX.

ANALYSIS -- MEDICAL CLAIM AGAINST DR. BRADLEY C. POWERS

2

Plaintiff, a civil detainee at Coalinga State Hospital, brings a medical claim against

3

defendant Dr. Bradley C. Powers for denial of due process under the Fourteenth Amendment.

4

For such a claim, as discussed above in this order, the Constitution requires only that courts

5

ensure that professional judgment was exercised. Youngberg, 457 U.S. at 315. A “decision, if

6

made by a professional, is presumptively valid [and] liability may be imposed only when the

7

decision by the professional is such a substantial departure from accepted professional judgment,

8

practice, or standards as to demonstrate that the person responsible actually did not base the

9

decision on such a judgment.” Id. at 322-23.

10

Also discussed above is that courts have used the Eighth Amendment deliberate

11

indifference standard in such cases to establish a floor for claims by civil detainees. Irvin, 2011

12

WL 838915, at *8 (emphasis added.) That is, a civil detainee who can show a violation under an

13

Eighth Amendment standard can also satisfy a Fourteenth Amendment standard. Id. “[T]he

14

Eighth Amendment still provides a floor for the level of protection that SVPs must receive . . .

15

and because the contours of the Eighth Amendment are more defined, Eighth Amendment

16

jurisprudence may provide helpful guidance as to the standards to be applied.” Hubbs, 538

17

F.Supp.2d at 1266. Accordingly, the court begins this analysis with the deliberate indifference

18

standard used for a medical claim under the Eighth Amendment.
Objective Element – Existence of Serious Medical Need

19

A.

20

A “serious medical need” exists if the failure to treat a prisoner’s condition could result

21

in further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974

22

F.2d at 1059. Here, there is no dispute that Plaintiff presented with a serious medical need.

23

Plaintiff alleges in the First Amended Complaint that he had Hepatitis C, a fatal disease of the

24

liver that will kill him if not treated. (ECF No. 10 at 3.) It is undisputed that Plaintiff contracted

25

Hepatitis C approximately in 1997 and found out he had the disease in 1999 at Atascadero State

26

Hospital. (Pltf’s Depo., ECF No. 36-6 at 4:22-5:4.) The parties do not dispute that failure to

27

treat Plaintiff’s disease could result in the unnecessary and wanton infliction of pain. Therefore,

28

the first prong is satisfied in Plaintiff’s favor.
38

Subjective Element – Deliberate Indifference

1

B.

2

There is also no dispute that Dr. Powers knew about Plaintiff’s serious medical need and

3

knew that Plaintiff faced a substantial risk of serious harm to his health without treatment for

4

Hepatitis C.

5

Plaintiff claims that Dr. Powers was deliberately indifferent to his serious medical needs

6

because Defendant failed to provide the medication Harvoni for treatment of Plaintiff’s Hepatitis

7

C, as requested by Plaintiff, for more than a year. Plaintiff also claims that defendant Dr. Powers

8

interfered with a former referral by a different doctor for Harvoni by withdrawing it.

9

Plaintiff alleges in the First Amended Complaint that at least three times since July 31,

10

2015, he requested Hepatitis C treatment, but a year later, no treatment had commenced. (First

11

Amended Complaint, ECF No. 10 at 4.) He alleges that he was repeatedly told that approval was

12

needed to treat his Hepatitis C. (Id.) Plaintiff alleges that as of December 29, 2015, a referral

13

for an infectious disease consultant was made by Plaintiff’s former primary care physician to

14

address treatment of Plaintiff’s Hepatitis C, but nothing else had happened to provide Plaintiff

15

with treatment. (Id.) Plaintiff also alleges that defendant Dr. Powers refused to pursue the critical

16

medical treatment with Harvoni that Plaintiff needed to stay alive and regain his health. (Id.)

17

Plaintiff states that he learned that at least four Hepatitis C patients at the State Hospital had

18

requested Harvoni, and all four patients were denied Harvoni on the ground they were not sick

19

enough. (Id.) In all four cases, Plaintiff believes that the four patients denied treatment with

20

Harvoni died of cirrhosis of the liver. (Id.) Plaintiff alleges that Harvoni is ineffective if

21

defendants wait too long to initiate treatment. (Id.) Plaintiff provides evidence that he sent three

22

complaints to the California Office of Patients’ Rights, complaining that his right to medical care

23

was being violated because his Hepatitis C was not being investigated. (Exhibits to First

24

Amended Complaint, ECF No. 10 at 11-15.)

25

Even if all of these allegations are taken as true, Plaintiff has not shown that he was

26

inappropriately treated for his Hepatitis C by Dr. Powers in violation of the Fourteenth

27

Amendment. Plaintiff provides no evidence that Dr. Powers possessed the requisite state of mind

28

to demonstrate deliberate indifference, a “sufficiently culpable state of mind” in denying proper
39

1

medical care, Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002), citing Wallace v. Baldwin,

2

70 F.3d 1074, 1076 (9th Cir. 1995), or that Dr. Powers failed to use professional judgment.

3

Plaintiff provides no evidence that Dr. Powers denied Plaintiff treatment for his Hepatitis

4

C. “Denial of medical attention to prisoners constitutes an Eighth Amendment violation if the

5

denial amounts to deliberate indifference to serious medical needs of the prisoner.” Toussaint v.

6

McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); Estelle, 429

7

U.S. at 106. The evidence shows that Dr. Powers decided not to prescribe Harvoni to Plaintiff

8

until after he had followed a treatment plan recommended by the Department of Health, including

9

testing and monitoring of Plaintiff’s condition to determine the best time to prescribe Harvoni.

10

(Powers Declaration, ECF No. 36-8 ¶ 8.) Dr. Powers delayed prescribing Harvoni for Plaintiff

11

while he treated Plaintiff’s Hepatitis B and helped Plaintiff understand what it would be like to

12

take an effective course of Harvoni. (Id. ¶¶ 23, 27-29.) Plaintiff’s disagreement with Dr. Powers’

13

treatment plan, without more, does not state a medical claim. Jackson, 90 F.3d at 331 (“To

14

prevail under these principles, [the plaintiff] must show that the course of treatment the doctors

15

chose was medically unacceptable under the circumstances.”)

16

Plaintiff provides no evidence that Plaintiff’s previous doctor, Dr. Hatwalker, made a

17

referral for Plaintiff to be treated with Harvoni, and that Dr. Powers refused to follow this plan.

18

The medical record instead shows that Dr. Hatwalker considered the Harvoni treatment for

19

Plaintiff’s Hepatitis C, but believed Plaintiff’s Hepatitis B condition could reactivate because of

20

the Harvoni treatment protocol. (Powers Declaration, ECF No. 36-8 ¶ 14.) The medical record

21

shows that on October 30, 2015, Dr. Hatwalker wrote an order for Plaintiff to be referred to an

22

infectious disese specialist for further evaluation and the possible treatment of his Hepatitis C in

23

the face of concomitant Hepatitis B. infection. (Id. ¶ 15.) Even if Dr. Powers refused to follow

24

any of Dr. Hatwalker’s treatment plan, this refusal, without more, would not state a medical

25

claim. Evidence that medical caregivers disagreed as to the need to pursue one course of

26

treatment over another is insufficient, by itself, to establish deliberate indifference. Jackson, 90

27

F.3d at 332.

28
40

1

Plaintiff provides no evidence that Dr. Powers placed Plaintiff’s health at risk because he

2

refused to prescribe Harvoni for Plaintiff, the only cure for Hepatitis C, or that Dr. Powers’ course

3

of treatment did not follow accepted professional judgment. Evidence shows that Dr. Powers

4

complied with the California Department of Mental Health’s official guidelines for treating

5

Hepatitis C Patients in a Department of Mental Health facility. (Powers Declaration, ECF No.

6

36-8 ¶ 8.)

7

compliance with the requirements of a course of treatment with Harvoni considering Plaintiff’s

8

personality traits that reduced the likelihood of treatment compliance. (Id.) The medical record

9

shows that Plaintiff was without significant liver injury related to his Hepatitis C infection, and

10

that Plaintiff’s course of treatment consisted of monitoring Plaintiff periodically through lab tests

11

and physical check ups and observing for any worsening signs of Hepatitis C. (Id. ¶ 11.) Dr.

12

Powers also treated plaintiff’s Hepatitis B infection to avoid complications due to interactions

13

between the newer Hepatitis C treatments – such as Harvoni – and reactivation of a Hepatitis B

14

infection. (Id. ¶¶ 23, 24.) Plaintiff has not shown more than a disagreement with Dr. Powers’

15

treatment plan, which does not state a medical claim. Jackson, 90 F.3d at 331.

Following the guidelines, Defendant assessed Plaintiff for the likelihood of

16

Plaintiff provides no admissible evidence that Dr. Powers’ treatment plan caused him any

17

injury, or that any delay in Plaintiff’s treatment with Harvoni resulted in further injury. In his

18

deposition, Plaintiff testified that during the time he was waiting to take Harvoni, his symptoms

19

worsened.

20

Q.

21

From when you initially requested Harvoni to the time when you actually received
it, did your symptoms get worse in between that time?

22

A.

Oh, yeah.

23

Q.

And how so?

24

A.

I just kept getting sicker and sicker. I threw up. I was confined to my bed.

25

(Plaintiff’s Deposition, ECF No. 36-6, page 41: 12-18.)

26

Plaintiff also testified that no doctor has said that the delay in treatment caused him injury.

27

Q.

28

Has any doctor told you that the delay in treatment has caused you any sort of
damage?
41

1
2

A.

No.

(Id., page 43:13-16.)

3

Q.

4

And has any doctor told you that the delay in receiving Harvoni caused you any
sort of medical injury?

5

A.

Nobody’s told me that, no.

6

(Id., page 49:6-9.) Even if Plaintiff believed that he was injured because of Dr. Powers’

7

treatment, as a layman Plaintiff cannot testify to his own medical opinion, interpret the meaning

8

of medical notes, or testify that any pain or distress he claims he suffered was directly caused by

9

Dr. Powers’ course of treatment. Fed. R. Evid. 701.

10

X.

CONCLUSION AND RECOMMENDATIONS

11

In sum, the court finds no genuine dispute as to any material fact at issue in this case.

12

Moreover, based on the foregoing, the court finds that defendant Dr. Powers has proven an

13

absence of a triable issue of material fact that would support Plaintiff’s medical claim, therefore

14

Defendant Powers is entitled to summary judgment as a matter of law.

15

Therefore, IT IS HEREBY RECOMMENDED that:

16

1.

17
18

Defendant Dr. Powers’ motion for summary judgment, filed on August 19, 2019,
be GRANTED;

2.

19

Plaintiff’s cross-motion for summary judgment, filed on September 9, 2019, be
DENIED;

20

3.

Summary judgment be entered in favor of Defendant Dr. Powers;

21

4.

This case proceed with the First Amended Complaint against defendants Audrey

22

King, Jagsir Sandhu, and Robert Withrow, on Plaintiff’s medical claim under the

23

Fourteenth Amendment; and

24

5.

25

These findings and recommendations are submitted to the United States District Judge

26

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

27

(14) days from the date of service of these findings and recommendations, any party may file

28

written objections with the court.

This case be referred back to the Magistrate Judge for further proceedings.

Such a document should be captioned “Objections to
42

1

Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

2

and filed within ten (10) days after the date the objections are filed. The parties are advised that

3

failure to file objections within the specified time may result in the waiver of rights on appeal.

4

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

5

1391, 1394 (9th Cir. 1991)).

6
7
8
9

IT IS SO ORDERED.
Dated:

July 23, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
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22
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24
25
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43