Tenore v. Goodgame et al

Filing 67

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/6/14 recommending that 44 MOTION for SUMMARY JUDGMENT be denied as to defendants Tseng and Goodgame and GRANTED as to defendants Smith, Heffner and Heatley. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL TENORE,

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No. 2:11-cv-1082 WBS CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

NATHANAEL GOODGAME, et al.,

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Defendants.

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I. Introduction

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. This action proceeds on the amended complaint filed August 29, 2012,

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which alleges that defendants were deliberately indifferent in the diagnosis and treatment of

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plaintiff‟s scabies infection while he was housed at Mule Creek State Prison (“MCSP”). (ECF

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No. 22 (“FAC”).) Pending before the court is defendants‟ August 9, 2013 motion for summary

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judgment (ECF No. 44), which has been briefed by the parties. (ECF Nos. 53, 58.) For the

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reasons discussed below, the undersigned will recommend that defendants‟ motion be granted in

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part and denied in part.

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II. Summary Judgment Standards Under Rule 56

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party‟s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party‟s case necessarily renders all other facts immaterial.”

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Id.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of their pleadings but is required to tender evidence of specific facts in the form of affidavits,

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and/or admissible discovery material, in support of its contention that the dispute exists or show

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that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.

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R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the

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fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,

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Inc. v. Pacific Elec. Contractors Ass‟n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is

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genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties‟ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to „pierce
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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.‟”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee‟s note on 1963

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amendments).

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In resolving the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party‟s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards

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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff‟d, 810 F.2d 898, 902

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than

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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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„genuine issue for trial.‟” Matsushita, 475 U.S. at 587 (citation omitted).

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III. Discussion

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A. Facts
Plaintiff alleges in a verified complaint1 that, in the first week of September 2009, he

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began experiencing severe itching in the area of his lower body and genitals. (FAC ¶ 20.) He

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sought treatment from medical staff, who prescribed ineffective treatments over the course of

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several months, during which plaintiff‟s condition worsened into “intense, severe, full-body

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itching” that resulted in bleeding, bruising, and “horrendous” discomfort. (Id., ¶ 28.) Finally, in

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March 2010, after plaintiff‟s cellmate began showing identical symptoms, plaintiff was diagnosed

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with scabies2 and began an effective course of treatment. (Id., ¶ ¶ 48, 52.) By April 2010,

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plaintiff had “prominent scars . . . on his legs, arms, and around his body from „uncontrollable‟

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scratching – while awake and in his sleep; that is when he was able to sleep at all.” (Id., ¶ 28.)

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A plaintiff‟s verified complaint may be considered as an affidavit in opposition to summary
judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.
Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000).
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Scabies is an itchy skin condition caused by the microscopic mite Sarcoptes scabei. See Centers
for Disease Control and Prevention, http://www.cdc.gov/parasites/scabies/gen_info/faqs.html.
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He describes his seven-month condition as “[t]orture with no relief, and no help.” (Id.)

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1. Plaintiff‟s Symptoms and Treatment

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The following facts are undisputed except where otherwise indicated3:

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At all relevant times, plaintiff was a state prisoner housed at MCSP. Prison physician

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Tseng, Registered Nurse Goodgame, Chief Physician and Surgeon Smith, Chief Medical Officer

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Heatley, and Chief Executive Officer Heffner, worked at MCSP during this period.

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During the first week of September 2009, plaintiff began experiencing itching in the area

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of his lower body and genitals. (FAC ¶ 20.) On September 8, plaintiff was examined by Dr.

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Tseng for a follow-up regarding an examination for a pre-cancerous condition. 4 (DUF 2.) After

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discussing this issue, plaintiff “attempted to get [Dr.] Tseng to address the severe itching Plaintiff

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suffered (scabies).” Dr. Tseng told plaintiff they were “out of time” and “would talk about that

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next time”; he advised plaintiff to “put in a sick-call form.” (FAC ¶ 23.)

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The next day, plaintiff submitted a medical request form complaining of a rash and

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accompanying itching. (DUF 3.) He stated in part: “This itching is driving me nuts; please

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provide something ASAP – Thank you.” (ECF No. 44-5 at 13.)
The following day, September 10, Nurse Goodgame examined plaintiff.5 Plaintiff

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complained of an itchy rash on his groin area that started ten days prior and had spread to his

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thigh and the sides of his upper torso. At the time of the examination, plaintiff had a red rash on

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the skin folds of his chest, the sides of his torso, and on his groin. Goodgame provided plaintiff

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with an anti-fungal cream and advised him to return if the condition did not improve or worsened

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within seventy-two hours. (DUF 4-7; ECF No. 44-5 at 13.) The 0.5 oz. tube of anti-fungal cream

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only provided enough medication to cover plaintiff‟s affected areas for two days. (FAC ¶ 25.)

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See ECF No. 44-2 (Defendant‟s Statement of Undisputed Material Facts (“DUF”)). Plaintiff
did not file a statement of Disputed/Undisputed Facts as required by Local Rule 260(b). But see
ECF No. 53 at 17-30, 55-70 (addressing DUF).
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Unless otherwise indicated, the events described took place in 2009.

In his role as a Registered Nurse, Goodgame‟s scope of licensure did not include diagnosis or
treatment of diseases, except according to protocols developed by his supervising nurses, and in
consultation with physicians. (DUF 66.)
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Between September 13 and 20, plaintiff did not submit any written requests for medical

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care; however, he reported to the MCSP medical clinic “to try to get more anti-itch cream.” A

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nurse supplied him with a small tube of athlete‟s foot cream on September 13. (DUF 8; FAC ¶

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26.)

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On September 22, plaintiff submitted a medical request form indicating that the itching

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had moved to different parts of his body and he had been scratching himself. He continued: “The

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Athlete‟s Foot cream only partially works – can you arrange some kind of injection to take care of

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it – ASAP please.” (DUF 9; ECF No. 44-5 at 14.)

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On September 25, plaintiff was examined by non-defendant Physician Assistant (PA)

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Akintola, who diagnosed him with possible neurotic excoriation. (DUF 10.) Akintola prescribed

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Triamcinolone 0.1 cream6 and oral Benadryl. (DUF 11.) Four days later, not having received the

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medication from the pharmacy, plaintiff submitted a medical request form stating in part: “I am in

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bad shape scratching till I bleed and bruise. PLEASE FIND THE FAULT. I NEED HELP! P.S.

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I‟ve asked for help for 3 weeks to NO avail!” (ECF No. 44-5 at 17.) On October 2, plaintiff

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submitted another request for his medication (ECF No. 44-5 at 19), and that day received

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Benadryl and Triamcinolone.7 (DUF 12-13; FAC ¶ 36.)

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Within a week, on October 8, 2009, plaintiff requested a refill of Triamcinolone cream.

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(DUF 14.) On October 13, 2009, plaintiff renewed his request in a medical request form

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addressed to the “Chief Medical Officer.” In it, plaintiff described “severe itching over 90% of

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my body which has persisted for over 6 weeks. Pharmacy/„C‟ clinic notified by order will not be

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filled till 10/21. By what logic am I to suffer another 2 wks. w/o relief? I am already drawing

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Triamcinolone cream is a steroid indicated for the relief of inflammatory and itchy
manifestations of cortiosteroid-responsive skin conditions such as eczema, dermatitis, rash, insect
bites, poison ivy, allergies, and other irritations. (DUF 45.)

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The parties dispute the amount of medication plaintiff received, or at least how long that amount
would last. Plaintiff alleges that, during the month of October 2009, he “was issued only three 1
ounce tubes of Triamcinolone 0.1 cream . . . on 10/2, 10/16, and 10/27/09. Properly applied with
3 applications daily, a tube would last 2-days.” (FAC ¶ 40.) Defendants assert that plaintiff‟s
prescriptions for Triamcinolone “were to last either thirty or sixty days.” (DUF 47; see DUF 13,
19.)
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blood and bruised from scratching. Provide relief now while needed.” (ECF No. 44-5 at 22.)

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Chief Medical Officer Heatley did not respond to this request. (FAC ¶ 38.)

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Two days later, on October 15, 2009, plaintiff was examined by non-defendant PA Todd,

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who noted a possible diagnosis of dermatitis and ordered a refill of Triamcinolone and a

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prescription for systemic methyl prednisone. (DUF 16-19.) These medications “did nothing for

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the underlying condition „scabies.‟” (FAC ¶ 39.)
On October 19, 2009, plaintiff requested a refill of Triamcinolone cream, stating: “My

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itching continues over my whole body and has now extended to my hands, [n]eck, and into my

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hair line. I DO NOT HAVE ENOUGH CREAM REMAINING TO TAKE ME INTO THE

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WEEKEND.” (ECF No. 44-5 at 25.) A refill was provided four days later, on October 26. (DUF

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20-21.)

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On October 29, plaintiff submitted a medical request for more Triamcinolone cream,
stating:
As I have explained: Intense itching/rash is on my entire body
(body surface approx. 12 sq ft). 30g cream (approx 1 oz) is barely
enough for 4-5 days even used sparingly & diluted. Last tube
issued 10/26 . . . will be totally consumed Sat. 10/31. Please
provide as itching severe causing bleeding and bruising. T.Y.
(ECF No. 44-5 at 28.)
The following day, Goodgame examined plaintiff and noted on the response portion of the
form that plaintiff continued to be diagnosed with
dermatitis sporadically throughout body. Red bumps on bilateral
arms, legs, and front and back upper torso and buttocks. Risk for
impaired skin integrity R/T red itchy bumps. Continue on
Triamcinolone as prescribed also Benadryl for itching. I/M was
advised that MD appointment is pending.
(ECF No. 44-5 at 28.)

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On November 3, plaintiff again spoke to Goodgame “at an RN Medical Line

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appointment.” Plaintiff requested a refill of anti-itch cream, asked for an appointment with a

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dermatologist, and asked that full-body photos be taken of the “wounds, bleeding and bruises all

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over his body.” (FAC ¶ 41.) Goodgame refused these requests and told plaintiff they did not

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have a camera, even though plaintiff knew a camera was kept in the Program Office and “could
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be made available.” (Id.) When plaintiff asked Goodgame why he was not being provided

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sufficient anti-itching medication, Goodgame went into another examination room and, when he

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returned, told plaintiff it was a “Committee decision.”8 (Id.) Plaintiff asked Goodgame why he

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was not being provided relief from itching. Goodgame replied: “Could be your attitude.” (Id.)

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On November 11, plaintiff submitted a medical request form asking for a dermatologist

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appointment. He stated that he was “[s]uffering severe itching/rash resulting in open wounds &

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sleep deprivation since” the first week in September; that Dr. Tseng had refused to address this

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condition at plaintiff‟s September 8 appointment; and that appointments with Nurse Goodgame

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had “proven futile.” The form is marked received on November 12; otherwise, no response is

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noted. (ECF No. 44-5 at 29.)

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On November 16, plaintiff submitted a health care services request form addressed to

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Nurse Goodgame, stating: “Again I am asking that a full body photo be taken to document full

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body rash and open, bleeding sores/wounds. Do not tell me again no camera is available; there is

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a camera in the Program Office used to memorialize such events. Please have photos taken now.”

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Plaintiff “cc‟d” the Chief Medical Officer at MSCP on the form. It is marked received on

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November 17; otherwise, no response is noted. (ECF No. 44-5 at 30.) Chief Medical Officer

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Heatley never reviewed or received the form, and was unaware of it until plaintiff filed this

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action. (DUF 28.)
On November 18, plaintiff submitted a medical request form complaining of “swollen

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ankles” and noting his “full body rash.” The form is marked received on November 19;

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otherwise, no response is noted. (ECF No. 44-5 at 31.) The same day, he submitted a separate

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health services request for a refill of his Triamcinolone cream, noting: “Tube lasts only 3 days[.]

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Full body rash & itching.” The form is marked received on November 19; otherwise, no response

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is noted. (ECF No. 44-5 at 32.)

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Plaintiff alleges that the Medical Authorization Review (“MAR”) Committee is “staffed by
defendants Smith, Heatley, and Heffner and makes ruling on individual healthcare courses of
treatment.” (Id.)
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On November 20, Dr. Tseng evaluated plaintiff, noting in part that plaintiff was “very

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upset, . . . says he‟s been suffering an itchy rash since first week of September. Rash has

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progressed from initial groin area to entire body – torso/arms/legs/back. Cellie has not contracted

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this problem. [Patient] says he has some relief with TAC cream, but he runs out of cream [in] 3-4

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days and he can‟t get a refill until next month.” (ECF No. 44-5 at 33.) Tseng hypothesized that

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the itching was due to a change in soap that occurred around the same time as the rash started.

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Tseng ordered Vitamin A & D ointment, Triamcinolone cream, and a topical anti-fungal cream

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called Clotrimazole. Tseng ordered plaintiff to change back to the soap he was using before the

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itching began and to follow up regarding the rash in 30 days. (Id.; DUF 30-33.)

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Eight days later, on November 28, plaintiff requested a refill of all three medications
prescribed by Tseng on November 20. (ECF No. 44-5 at 35.)9
On March 1, 201010, plaintiff‟s cellmate James Dailey came down with the “identical rash

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plaintiff had now suffered over 6 months.” Dailey submitted a medical request form stating that

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he had a few spots of intense itching, and his cellmate – plaintiff – had been having these

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symptoms for six months or more. (FAC ¶ 48.)

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Also on March 1, plaintiff submitted a medical request stating that his body itching

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continued, though “less severe,” and asking why his February 22 request for a Triamcinolone

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refill had been ignored. (ECF No. 44-5 at 38.)

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On March 6, plaintiff submitted a medical request stating that the itching he had suffered

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since September 2009 continued. Plaintiff stated: “I need anti-itch cream. I still believe this is

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Defendants assert that plaintiff did not submit any healthcare services request forms about his
skin condition between November 28, 2009 and March 1, 2010. (DUF 36-37.) In opposition,
plaintiff offers as evidence several health services request forms that he claims to have submitted
during this period. (ECF 53 at 102-105, 109-111.) Defendants object that these records are
inadmissible because have not been authenticated and plaintiff has altered them with his
handwritten notes, “destroying their authenticity [and] any possible evidentiary value.” (ECF No.
59 at 3.) Plaintiff acknowledges that he made notes on these exhibits (ECF No. 63 at 6), which
appear to document his requests for refills of Triamcinolone and other medications from the
prison pharmacy. As they are cumulative of other evidence and not especially relevant to the
named defendants, the court does not consider them for purposes of summary judgment.
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The following events occurred in 2010.

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scabies. Theory „stress‟ unfounded. Am now in Ad-Seg . . . This is your best chance to treat for

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scabies (in isolation). Error [sic] on side of caution and treat or send me to a dermatologist as I

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requested long ago.” The response portion of the form notes that it was received on March 8 and

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“referred to the RN line” for empiric treatment of scabies. (ECF No. 44-5 at 40.)

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On March 9, plaintiff submitted a health care services request stating that his body itching

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that started in September 2009 continued. “It started dissipating from a severeness of 10++ . . .

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to a 3 in January and February 2010. It is now escalating. My cellie is also itching and

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scratching. Unless stress is contagious . . . You need to guess again; BEFORE it again worsens!”

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This request was also referred to the RN line for treatment of scabies. (ECF No. 44-5 at 42.)

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On March 10, Dr. Tseng examined plaintiff, whose skin exam revealed excoriation and

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scars on both of his legs and his torso. Dr. Tseng diagnosed plaintiff with eczema or neurogenic

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dermatitis. (DUF 40.) Plaintiff and Dr. Tseng also discussed “the possibility that Plaintiff was

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correct, and had suffered scabies for 6 months.” (FAC ¶ 51.) Dr. Tseng instructed plaintiff to

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continue using Triamcinolone cream. He also referred plaintiff to the nurse for empiric treatment

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of scabies and prescribed Eliminite cream, which is used to treat scabies. (DUF 40; ECF No. 44-

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5 at 43.)

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The first treatment for scabies relieved almost all of plaintiff‟s symptoms. On March 25,

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Dr. Tseng ordered a repeat treatment, noting the initial treatment was very effective. (DUF 42.)

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After repeat treatments on March 30 and April 1, 2010, “the infection was 100% gone.” (FAC ¶

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52.) Plaintiff concludes that “a simple, easy treatment could have saved [him] 7 months of

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needless suffering[.]” (Id.)

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2. The “Scabies Outbreak”

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In the complaint, plaintiff alleges that he “had been telling CDCR Medical Staff

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Defendants . . . from the beginning of September 2009 that this is „not‟ stress as they diagnosed. .

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. . [T]his has always been scabies as Plaintiff has said from the beginning. In the previous months

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to Plaintiff‟s outbreak, there have been at least 5-cells in Building 11 [where Plaintiff was

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housed] that had been treated for scabies.” (FAC ¶ 48.) Plaintiff alleges that he “informed

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Defendants Goodgame, et al. that he thought he contracted scabies from the showers” when he
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put on shorts that had fallen into the shower water. A few days later, he broke out in a rash. (Id.)

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In opposition to summary judgment, plaintiff further argues that defendants should have

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known he had scabies because the disease was common at MCSP in 2009 and 2010. In support,

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he attaches several inmates‟ signed statements that they contracted and were treated for scabies at

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MCSP. (ECF No. 53 at 128-140.) One inmate housed in Building 11 was diagnosed in

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November 2009 (id. at 128-131), others in 2009, 2010, or at unspecified times. Certain inmates

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refer to a “scabies outbreak” in Building 11, causing prison staff to give prisoners bleach to wipe

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down their cells. (Id. at 128, 138-139.) Defendants object to these statements as inadmissible

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hearsay that are not “in the form of declarations.” (ECF No. 59 at 3.) However, to the extent the

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statements are based on personal knowledge and set forth facts that would be admissible at trial,

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the court considers them on summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th

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Cir. 2003) (holding that the district court properly considered a diary which defendants moved to

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strike as inadmissible hearsay because “[a]t the summary judgment stage, we do not focus on the

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admissibility of the evidence‟s form. We focus instead on the admissibility of its contents.”).

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3. Defendants‟ Medical Expert

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Defendants have submitted a declaration by a medical expert, Dr. Barnett, who states as
follows11:

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In the medical community, the treatment for skin rash and itching is empiric, that is,

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treatment is initiated by the primary care provider prior to the determination of a firm diagnosis.

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(DUF 44.) Overuse of the steroid Triamcinolone can lead to systemic absorption, which can

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cause a range of adverse side effects including Cushing‟s syndrome, hyperglycemia, and

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glucosuria. (DUF 46.) Although plaintiff‟s prescriptions for Triamcinolone were to last either

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thirty or sixty days, plaintiff requested refills approximately every six to seven days during the

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month of October 2009. (ECF Nos. 47-48.) The pharmacy did not refill plaintiff‟s prescription

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on October 30, 2009 because he was at an increased risk of adverse side effects from overuse of

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the medication. (ECF No. 50; see ECF No. 44-5 at 28.)

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(ECF No. 44-5.)
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Medical practitioners often do not diagnose scabies in its early presentation, despite its

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contagiousness. Most patients with scabies do not display the burrows in the skin that medical

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students are taught to expect with the presentation of scabies. The patient with scabies often

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complains of generalized itching with excoriated skin. Without the presentation of burrows,

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scabies can resemble an allergic reaction, dermatitis, or rash, and many patients with scabies are

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treated as such. (DUF 51.) At times, a diagnosis of scabies is made after the patient‟s rash and

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itching has continued for some months. (DUF 52.) The symptoms described by plaintiff in his

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complaint and in the medical records could have been caused by many conditions, and were not

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clearly attributable to scabies. (DUF 53.)

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In a declaration submitted with defendant‟s motion, defendant Dr. Smith states that he did

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not evaluate or treat plaintiff for any skin condition, and was not aware that plaintiff had any skin

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condition, during the time relevant to the complaint. (DUF 60.)

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Similarly, defendant Dr. Heffner did not evaluate or treat plaintiff for any skin condition,

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and was not aware that plaintiff had any skin condition, during the time relevant to the complaint.

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(DUF 63.)

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Dr. Heatley did not receive or review any requests for health care services submitted by

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plaintiff regarding skin rash, itching, or scabies. He was not aware of such requests until plaintiff

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filed this lawsuit. (DUF 62.) Dr. Heatley did not evaluate or treat plaintiff for any skin condition

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during the time relevant to the complaint. The only health care services Dr. Heatley provided to

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plaintiff during that time were to order an EKG, chest x-ray, and lab tests related to plaintiff‟s

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transurethral resection of his prostate, a condition entirely unrelated to skin rash. (DUF 61.)

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B. Defendants‟ Motion

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Defendants argue that the undisputed facts show that Dr. Tseng and Nurse Goodgame
provided plaintiff medically appropriate treatment.
Denial or delay of medical care for a prisoner‟s serious medical needs may constitute a

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violation of the prisoner‟s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.

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97, 104-05 (1976). An individual is liable for such a violation only when the individual is

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deliberately indifferent to a prisoner‟s serious medical needs. Id.; see Jett v. Penner, 439 F.3d
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1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.

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Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).

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In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439

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F.3d at 1096. First, the plaintiff must show a “serious medical need” by demonstrating that

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“failure to treat a prisoner‟s condition could result in further significant injury or the „unnecessary

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and wanton infliction of pain.‟” Id., citing Estelle, 429 U.S. at 104. For purposes of the motion,

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defendants do not dispute that plaintiff‟s skin rash and itching constituted a serious medical need.

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(ECF No. 44-1 at 11, n.1.)

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Second, the plaintiff must show the defendant‟s response to the need was deliberately

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indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act

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or failure to respond to a prisoner‟s pain or possible medical need and (b) harm caused by the

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indifference. Id. Under this standard, the prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but that person

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“must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective

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approach” focuses only “on what a defendant‟s mental attitude actually was.” Id. at 839. “While

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poor medical treatment will at a certain point rise to the level of constitutional violation, mere

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malpractice, or even gross negligence, does not suffice.” Wood v. Housewright, 900 F.2d 1332,

18

1334 (9th Cir. 1990). On the other hand, deliberate indifference does not require that a physician

19

altogether fail to treat an inmate. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989).

20

Even if some treatment is prescribed, a failure to competently treat a serious medical condition

21

may constitute deliberate indifference in a particular case. Id.

22
23
24

Here, the question is whether Tenore and/or Goodgame were deliberately indifferent in
their response to plaintiff‟s serious medical need.
Defendants argue that there is no “competent evidence” that plaintiff suffered from

25

scabies since the beginning of September 2009, and that plaintiff simply “assumes that, because

26

empirical treatment for scabies appears to have remedied his skin condition,” Goodgame and

27

Tseng were deliberately indifferent. Defendants characterize this as a “mere difference of

28

opinion concerning appropriate treatment” between an inmate and medical staff. (ECF No. 44-1
12

1

at 14.) A difference of opinion about the proper course of treatment is not deliberate indifference,

2

nor does a dispute between a prisoner and prison officials over the necessity for or extent of

3

medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d

4

1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

5

The court finds this argument unpersuasive. On summary judgment, all reasonable

6

inferences that may be drawn from the facts placed before the court must be drawn in favor of the

7

opposing party. See Matsushita, 475 U.S. at 587. From the facts set forth above, it is reasonable

8

to infer that plaintiff‟s use of Eliminite cream in March 2010 promptly relieved his symptoms –

9

which he had been experiencing to a greater or lesser degree since September 2009 – because,

10

unlike previously-prescribed treatments, it addressed the underlying cause of scabies. Put another

11

way, they suggest that plaintiff‟s medical providers did not accurately diagnose his scabies until

12

March 2010. The court declines to adopt the view that the failure to accurately diagnose a

13

patient‟s condition is a “mere difference of opinion concerning appropriate treatment.” See Ortiz,

14

884 F.2d at 1314 (“As this court has stated, „access to medical staff is meaningless unless that

15

staff is competent and can render competent care.‟”), citing Cabrales v. County of Los Angeles,

16

864 F.2d 1454, 1461 (9th Cir. 1988).

17

Moreover, the delay in providing effective medical treatment to plaintiff caused him

18

significant harm. See Hallet, 296 F.3d at 745-46 (where a prisoner alleges that delay of medical

19

treatment constitutes deliberate indifference, the prisoner must show that the delay caused

20

“significant harm and that Defendants should have known this to be the case.”) Between early

21

September and late November 2009, plaintiff submitted numerous medical requests that

22

documented in vivid terms the extent of his suffering and discomfort. His symptoms because less

23

severe in early 2010, but began “escalating” in March 2010. Certainly the sheer length of time

24

that plaintiff was subject to these symptoms without relief is itself a significant harm.

25

Defendants point out that Dr. Tseng and Nurse Goodgame did not disregard plaintiff‟s

26

symptoms, but evaluated and treated them at appointments on November 20, March 10, and

27

March 25 (Tseng); and September 10 and October 30 (Goodgame). As to Tseng, defendants omit

28

the September 8 appointment in which, according to plaintiff, Dr. Tseng declined to address
13

1

plaintiff‟s complaint of severe itching, telling him they were “out of time” and advising him to

2

put in a sick-call form. Otherwise, the evidence shows that, on November 20, Dr. Tseng

3

evaluated plaintiff, prescribed medications to address his rash, and told him to change his soap

4

and follow up in 30 days. On March 10 and 25, Dr. Tseng prescribed anti-scabies medication that

5

proved effective.

6

Defendants also omit plaintiff‟s claimed November 3 meeting with Nurse Goodgame, in

7

which – again, according to plaintiff – plaintiff asked why he was not being provided relief and

8

Goodgame responded: “Could be your attitude.” Otherwise, the evidence shows that September

9

10 and October 30, Nurse Goodgame examined plaintiff, noted his complaints, and prescribed

10
11

medications to treat his itching and rash.
Defendants also present undisputed expert opinion to the effect that, because scabies

12

symptoms often resemble symptoms caused by other conditions, doctors and nurses “often” fail

13

to diagnose scabies early on, “at times” only making an accurate diagnosis “after the patient‟s

14

rash and itching has continued for some months.” (DUF 51-52.) From this unfortunate fact,

15

which the court accepts as true for purposes of the motion, Dr. Barnett concludes that even if

16

Tseng and Goodgame failed to diagnose plaintiff‟s condition for several months, the care they

17

provided did not fall below the level generally accepted in the medical community. (Barnett

18

Decl. ¶¶ 47-48.)

19

Certain other facts in the record complicate this picture, however. Drawing all reasonable

20

inferences in plaintiff‟s favor, the facts before the court suggest that other inmates in Building 11

21

contracted and were treated for scabies during the relevant timeframe, and that – in plaintiff‟s

22

persistent attempts to get relief in 2009 – he raised the possibility with Tseng and/or Goodgame

23

that his symptoms were attributable to scabies. Yet plaintiff was not prescribed Eliminite cream

24

until he specifically asked (again) for scabies treatment in March 2010. These facts go to

25

defendants‟ state of mind in the “deliberate indifference” analysis. In Farmer, the Supreme Court

26

held that a prison official is deliberately indifferent only if “the official knows of and disregards

27

an excessive risk to inmate health and safety; the officials must both be aware of facts from which

28

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
14

1

the inference.” 511 U.S. at 837. To prove knowledge of the risk, the prisoner may rely on

2

circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish

3

knowledge. Id. at 842. Prison officials may not escape liability because they cannot, or did not,

4

identify the specific source of the risk; the serious threat can be one to which all prisoners are

5

exposed. Id. at 843. Prison officials may, however, avoid liability by presenting evidence that

6

they lacked knowledge of the risk. Id. at 844. Moreover, prison officials may avoid liability by

7

presenting evidence of a reasonable, albeit unsuccessful, response to the risk. Id. at 844–45.

8

Here, the court concludes that plaintiff has established a genuine dispute of material fact

9

as to whether defendants Tseng and Goodgame were deliberately indifferent – not because they

10

entirely failed to treat him, but because they (possibly) knew and disregarded plaintiff‟s risk of

11

having scabies when other treatments proved ineffective. In reaching this conclusion, the court

12

notes the following key facts, drawing all reasonable inferences in plaintiff‟s favor:

13

By the time Nurse Goodgame examined plaintiff on October 30, 2009, plaintiff had been

14

applying Triamcinolone cream for twenty-eight days, including multiple refills of his September

15

25 prescription. He had also been prescribed anti-fungal cream, oral Benadryl, and systemic

16

methyl prednisone. Despite these medications, plaintiff continued to complain of “intense” and

17

“severe itching over 90% of my body,” causing him to scratch until he was bruised and

18

bleeding.12 Goodgame‟s examination revealed “red itchy bumps” all over plaintiff‟s body. Other

19

inmates in Building 11 had contracted scabies in 2009, and plaintiff may have verbally raised the

20

possibility that his symptoms were attributable to scabies. Yet Nurse Goodgame directed plaintiff

21

to “[c]ontinue on Triamcinolone” and Benadryl – two medications that, for the past month, had

22

not halted the spread of the rash or relieved plaintiff‟s symptoms. When plaintiff again spoke to

23

Nurse Goodgame on November 3, the latter remarked that plaintiff was not being provided relief

24

because of his “attitude.”

25
26
27
28

By the time Dr. Tseng examined plaintiff on November 20, plaintiff had been applying
Triamcinolone cream for a month and a half, during which time his itchy rash had spread from his
12

The court draws the reasonable inference that this documented information was in plaintiff‟s
medical record, reviewable by Goodgame and Tseng at the time of their examinations.
15

1

groin area to his entire body. Though plaintiff experienced “some relief” from the cream, he had

2

been suffering from the rash since early September and was “very upset.” He had “wounds,

3

bleeding, and bruises” all over his body from scratching. Other inmates in Building 11 had

4

contracted scabies in 2009, and plaintiff may have verbally raised the possibility that his

5

symptoms were attributable to scabies. Yet Dr. Tseng hypothesized that plaintiff‟s full-body rash

6

was due to a change in his soap. He told plaintiff to try a different soap and ordered more

7

Triamcinolone, along with more anti-fungal cream and a Vitamin A & D ointment. Dr. Tseng did

8

not diagnose plaintiff with scabies until March 2010, when plaintiff submitted a medical request

9

form stating that he “still believe[d] this [was] scabies” and asking prison officials to “err[ ] on

10

the side of caution” and treat him for this condition, or send him to a dermatologist “as I

11

requested long ago.” On March 10, plaintiff and Dr. Tseng discussed “the possibility that

12

Plaintiff was correct, and had suffered scabies for 6 months.” Only then did Dr. Tseng prescribe

13

Eliminite cream for treatment of scabies, which promptly cured plaintiff‟s condition.

14

Based on the foregoing, the undersigned will recommend that defendants‟ motion for

15

summary judgment be denied as to defendants Tseng and Goodgame. As to remaining

16

defendants Smith, Heffner, and Heatley, the court finds that they are entitled to summary

17

judgment, as the record does not show a sufficient causal connection between their actions or

18

inactions and plaintiff‟s injury so to make them potentially liable under § 1983. See Monell v.

19

Dep‟t of Soc. Services, 436 U.S. 658, 691–92 (1978).

20

C. Qualified Immunity

21

Defendants argue that, even assuming that Dr. Tseng and Nurse Goodgame violated

22

plaintiff‟s Eighth Amendment right to humane conditions of confinement by failing to timely

23

address his scabies, they are entitled to qualified immunity, as they reasonably believed they were

24

providing him with constitutionally adequate medical care.

25

Government officials enjoy qualified immunity from civil damages unless their conduct

26

violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910

27

(9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is

28

presented with a qualified immunity defense, the central questions for the court are: (1) whether
16

1

the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the

2

defendant‟s conduct violated a statutory or constitutional right; and (2) whether the right at issue

3

was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

4

Here, construing the facts in the light most favorable to plaintiff, Saucier, 533 U.S. at 201,

5

the court must assume that Tseng and Goodgame were deliberately indifferent to plaintiff‟s

6

serious medical need, violating his clearly established Eighth Amendment right to adequate health

7

care while incarcerated. So construed, plaintiff‟s allegations preclude summary judgment on

8

defendants‟ qualified immunity defense. See Nelson v. Runnels, 2010 WL 3238925, *16 (E.D.

9

Cal. Aug. 12, 2010) (defendants not entitled to qualified immunity where “there remain material

10

factual disputes regarding . . . the extent to which defendants knew of and disregarded an

11

excessive risk of harm to plaintiff‟s health”) (collecting cases).

12

Accordingly, IT IS HEREBY RECOMMENDED that defendants‟ motion for summary

13

judgment (ECF No. 44) be DENIED as to defendants Tseng and Goodgame and GRANTED as to

14

defendants Smith, Heffner and Heatley.

15

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

16

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

17

after being served with these findings and recommendations, any party may file written

18

objections with the court and serve a copy on all parties. Such a document should be captioned

19

“Objections to Magistrate Judge‟s Findings and Recommendations.” Any reply to the objections

20

shall be served and filed within fourteen days after service of the objections. The parties are

21

advised that failure to file objections within the specified time may waive the right to appeal the

22

District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

23

Dated: February 6, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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