Klensch v. California Department of Corrections & Rehabilitation, et al

Filing 27

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 04/09/2018. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 4/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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WILLIAM KLENSCH,
Plaintiff,

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v.

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Defendants.

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

ZAHED AHMED, et al.,

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Case No. 16-cv-02876-WHO (PR)

Dkt. No. 26

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INTRODUCTION
Plaintiff William Klensch alleges in this 42 U.S.C. § 1983 suit that medical staff at

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CTF-Soledad provided constitutionally inadequate medical care for his Hepatitis C-

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infected liver. Defendants Zahed Ahmed, plaintiff’s primary doctor; W. Tarrar, a CTF

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physician who was consulted during the treatment decision process; G. Kalisher, a

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physician who interviewed Klensch during his review of plaintiff’s medical grievance; M.

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Bhatti, plaintiff’s psychiatrist; S. Posson, who reviewed plaintiff’s medical grievance; and

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D. Bright, CTF’s chief physician, move for summary judgment, have presented supporting

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evidence, and have provided Klensch with the required warnings under Rand v. Rowland,

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154 F.3d 952, 962-963 (9th Cir. 1998) (en banc). Klensch has not filed an opposition and

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never asked to extend the filing deadline. Because the undisputed material facts show that

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Klensch received timely, appropriate, and successful treatment, defendants’ motion for

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summary judgment is GRANTED.

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DISCUSSION
I.

Background
In 2016, Klensch wanted his doctors at CTF to prescribe the medication Harvoni to

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treat his Hepatitis C-infected liver. (First Am. Compl. at 6.)1 He also alleges that there

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were unacceptable delays in his treatment from 2015 to 2016.
Klensch’s 2015 blood tests showed that he was ineligible for Hepatitis C treatment.

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The Medical Progress Note on May 28, 2015 includes this assessment: “Hepatitis C. No

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clinical evidence of cirrhosis. FIB-4 score is 1.6, not eligible for treatment.” (Mot. for

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Summ. J. (“MSJ”), Medical Progress Note, Dkt. No. 26-3 at 3.)

United States District Court
Northern District of California

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In March 2016, Klensch saw Dr. Ahmed about his condition. Ahmed then

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submitted a hepatitis treatment request that included a recommendation for Harvoni. (Id.,

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Bright Decl., Dkt. No. 26-2 at 4-5.)
There are two issues concerning Ahmed’s treatment request. First, authority to

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decide on a course of treatment for HIV-infected inmates rests with the Hepatitis C

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Oversight Committee at the CDCR headquarters, not Ahmed. (Id., Kalisher Decl., Dkt.

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No. 26-7 at 2.) Second, Ahmed had erroneously determined that Klensch had never been

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treated before, when in fact he had been treated for hepatitis in 2012; that treatment was

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not successful. (Id. at 5.)
At the First Level review of Ahmed’s treatment request in May, 2016, Dr. Kalisher

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interviewed Klensch, noted Ahmed’s errors, and created a revised treatment request,

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letting Klensch know that the Oversight Committee would determine his treatment. The

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revised request was approved that same month. (Id., Bright Decl., Dkt. No. 26-2 at 5.) A

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short delay occurred in June because Klensch’s doctors were concerned that his use of

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Depakote, which had been prescribed by his psychiatrist, Dr. Bhatti, might interfere with

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his hepatitis treatment. (Id.) But later that same month, Bhatti cleared Klensch for

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The Court cites to the page numbers generated by the electronic filing system.
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treatment. (Id.) In July 2016, the hepatitis treatment started. (Id. at 5-6.)

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According to the Oversight Committee, Harvoni was not an appropriate medication

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for Klensch’s type of hepatitis and, apart from this, CTF medical staff lacked the authority

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to prescribe it. (MSJ, Gieschen Decl., Dkt. No. 26-6 at 2; Bright Decl. at 4.) Klensch’s

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doctors settled on a different course of treatment that appears to have been successful. (Id.,

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Bright Decl., Dkt. No. 26-2 at 6.) At the end of Klensch’s 12-week treatment, tests

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showed that he had no Hepatitis C viral RNA count. (Id.) This result was thought to be

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“excellent” (MSJ, Dkt. No. 26 at 19) because 99% of people in whom the virus is not

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detected after the 12-week treatment remain free of the virus for the rest of their lives. (Id.,
Bright Decl., Dkt. No. 26-2 at 6.) Before further testing could be done, Klensch was

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United States District Court
Northern District of California

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paroled. (Id. at 7.) No further medical evidence is part of this record.
Klensch also claims his jailors failed to respond to (i) his 2015 request for hepatitis

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treatment; (ii) his request for treatment for his left ear pain; and (iii) his complaints that the

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Depakote prescribed by Bhatti was damaging his liver and was causing dramatic side

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effects. He also claims (iv) his grievance reviewers are liable for failing to act on his

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complaints about his 2016 hepatitis treatment.
Klensch did not exhaust his administrative remedies regarding these claims. His

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grievance regarding Claims (i) and (ii) was cancelled, a result he did not seek to overturn.

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(Id., Lewis Decl., Dkt. No. 26-8 at 3-4.) There is no record that he filed any other

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grievance about those claims. There is also no record he filed any grievances regarding

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Claims (iii) and (iv).

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II.

Standard of Review

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Summary judgment is proper where the pleadings, discovery and affidavits

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demonstrate that there is “no genuine dispute as to any material fact and [that] the movant

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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those

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which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

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reasonable jury to return a verdict for the nonmoving party. Id.
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The party moving for summary judgment bears the initial burden of identifying

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those portions of the pleadings, discovery and affidavits which demonstrate the absence of

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a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Where the moving party will have the burden of proof on an issue at trial, it must

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affirmatively demonstrate that no reasonable trier of fact could find other than for the

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moving party. On an issue for which the opposing party by contrast will have the burden

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of proof at trial, as is the case here, the moving party need only point out “that there is an

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absence of evidence to support the nonmoving party’s case.” Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go

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United States District Court
Northern District of California

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beyond the pleadings and, by its own affidavits or discovery, set forth specific facts

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showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is

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concerned only with disputes over material facts and “[f]actual disputes that are irrelevant

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or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the

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court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91

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F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with

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reasonable particularity, the evidence that precludes summary judgment. Id. If the

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nonmoving party fails to make this showing, “the moving party is entitled to a judgment as

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a matter of law.” Celotex, 477 U.S. at 323 (internal quotations omitted).

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III.

Claims

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Defendants move for summary judgment on grounds that Klensch received

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constitutionally adequate medical care and that his other claims were not administratively

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exhausted.

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Klensch did not oppose the motion for summary judgment. That does not end the

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matter because a district court may not grant a motion for summary judgment solely

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because the opposing party has failed to file an opposition. See Cristobal v. Siegel, 26

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F.3d 1488, 1494-95 & n.4 (9th Cir. 1994) (unopposed motion may be granted only after

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court determines that there are no material issues of fact). This is so even if the failure to
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oppose violates a local rule. See Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir.

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2003). The Court may, however, grant an unopposed motion for summary judgment if the

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movant’s papers are themselves sufficient to support the motion and do not on their face

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reveal a genuine issue of material fact. See United States v. Real Property at Incline

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Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic entry of

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judgment for moving party without consideration of whether motion and supporting papers

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satisfy Fed. R. Civ. P. 56), rev’d on other grounds sub nom. Degen v. United States, 517

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U.S. 820 (1996); Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993) (same).
The evidence presented by defendants supports their motion for summary judgment.

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Klensch received constitutionally adequate medical care. At the end of his 12-week

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United States District Court
Northern District of California

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treatment, tests showed that he had no viral load. That his preferred treatment (Harvoni)

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was not used is immaterial. A difference of opinion between a prisoner patient and a

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medical doctor is not enough to make out a violation of the Eighth Amendment. Toguchi

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v. Chung, 391 F3d 1051, 1058-1050 (9th Cir. 2004). Rather, a plaintiff must establish that

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his doctors or nurses embarked on a course of “medically unacceptable” treatment in

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“conscious disregard of an excessive risk to [his] health.” Id. There has been no such

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showing, despite his complaints about the side effects of the treatment.2
Klensch also alleges that the delays in his treatment were constitutionally

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unacceptable. This contention is not supported by the evidence, as a review of the

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documents submitted by plaintiff and defendants show. Klensch was ineligible for

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treatment in 2015 given his blood tests. In March 2016, he saw Ahmed about his condition

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and started receiving treatment in July 2016. Klensch has not shown that his condition

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worsened or that the subsequent treatment was unsuccessful or hampered because of any

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delays.
His other claims are doomed by his failure to exhaust his administrative remedies.

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The side effects could have been avoided if he had received Harvoni instead, Klensch
asserts. He has offered no evidence to support this.
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Prisoners must properly exhaust their administrative remedies properly before filing suit in

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federal court, as mandated by the Prison Litigation Reform Act (“PLRA”). Woodford v.

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Ngo, 548 U.S. 81, 93 (2006). The PLRA’s exhaustion requirement is mandatory and a

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prisoner’s failure to comply with this requirement cannot be excused by the courts. Ross v.

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Blake, 136 S. Ct. 1850, 1856-1858 (2016).

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Klensch’s grievance about Claims (i) and (ii) was cancelled before it reached the
final level of review. He did not seek to overturn the cancellation, nor did he file any other

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grievance regarding these claims. There is no record that Klensch ever filed a grievance

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regarding his Depakote prescription or against the persons who reviewed his Hepatitis C

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grievances. Any claim against the reviewers, even if properly exhausted, would fail. As

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Northern District of California

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explained above, the record shows that Klensch received timely, appropriate, and

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successful treatment.

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In sum, the movants’ papers are sufficient to support the motion and do not on their

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face reveal a genuine issue of material fact. Accordingly, defendants’ motion for summary

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judgment is GRANTED in favor of all defendants as to all claims.

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CONCLUSION

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Defendants’ motion for summary judgment, Dkt. No. 26, is GRANTED in

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favor of all defendants as to all claims. The Clerk shall enter judgment in favor of Zahed

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Ahmed, W. Tarrar, G. Kalisher, M. Bhatti, S. Posson, and D. Bright, terminate Dkt. No.

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26, and close the file.

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IT IS SO ORDERED.
Dated: April 9, 2018
_________________________
WILLIAM H. ORRICK
United States District Judge

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