Opinion
3:16-CV-05993-BHS-DWC
04-16-2021
CHARLES V. REED, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS et al., Defendants.
NOTED FOR: May 7, 2021
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge
The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Presently pending before the Court is Defendants' Third Motion for Summary Judgment (the “Motion”). Dkt. 160.
Plaintiff filed this civil rights action in 2016 and alleges Defendants delayed providing medically necessary treatment for his Hepatitis C (“HCV”) amounting to deliberate indifference to his medical needs in violation of the Eighth Amendment. See Dkt. 96. In the Motion, Defendants Dr. Sara (Smith) Kariko, Dr. Lara B. Strick, Dr. G. Steven Hammond, and Mr. Robert Weber assert they are entitled to qualified immunity as to both federal and state law claims. Dkt. 160. Defendants are proceeding primarily under the “first prong” of the qualified immunity analysis, arguing there is not a disputed issue of fact as to a constitutional violation, pointing to a lack of personal participation. See Id. Defendants also argue Plaintiff failed to exhaust several of his claims. See id.
Defendant Smith is now Sarah (Smith) Kariko. See Dkt. 99. The Court will refer to her as Defendant (Smith) Kariko throughout the Report and Recommendation for consistency with prior orders and reports in this case, as well as consistency with the parties' briefing.
Defendants' briefly argue the law was not clearly established. See Dkt. 160. Plaintiff requested the opportunity to provide supplemental briefing on the second prong of the qualified immunity analysis, whether the law was clearly established, if the Court finds it necessary. See Dkt. 162.
The undersigned concludes Plaintiff exhausted his claims and therefore recommends denying Defendants' Motion on the issue of exhaustion. However, Plaintiff has failed to sufficiently rebut Defendants' summary judgment showing as to the deliberate indifference claims alleged against Defendants Hammond, (Smith) Kariko, and Strick. Therefore, the undersigned recommends the deliberate indifference claims against Defendants Hammond, Strick, and (Smith) Kariko be dismissed with prejudice, Defendant Weber be dismissed with prejudice as Plaintiff no longer pursues any claims against him, and Plaintiff's state law claims be dismissed without prejudice. The undersigned further recommends granting Defendants' request to strike the newly submitted evidence contained in Plaintiff's Supplemental Response and the undersigned has not considered the new evidence in this Report and Recommendation (“R&R”).
Factual Background
The following was adapted from Judge Settle's Order Adopting the Report and Recommendation which outlined the procedural history of this case. See Dkt. 147 at 6-8.
On September 25, 2017, Defendants moved for summary judgment for the first time on Plaintiff's Eighth Amendment claim for deliberate indifference to a serious medical need. Dkt. 40. Defendants argued Plaintiff had failed to establish the violation of a constitutional right and, even if he had established a violation, Defendants were entitled to qualified immunity because the law was not sufficiently clear. Id. at 13-24. On January 30, 2018, the undersigned issued a R&R recommending the Honorable Benjamin H. Settle, the District Judge assigned to this case, grant the Motion for Summary Judgment because Plaintiff failed to establish the violation of a constitutional right. Dkt. 57. On April 19, 2018, Judge Settle declined to adopt the R&R. Dkt. 62. Judge Settle concluded Defendants had failed to establish an absence of material questions of fact regarding the violation of Plaintiff's constitutional rights. Id. at 4-9. Judge Settle then referred the matter to the undersigned to address Defendants' other bases for summary judgment such as lack of personal participation and whether the law was clearly established. Id. at 9-11. Judge Settle also appointed counsel for Plaintiff. Id. In appointing counsel, Judge Settle stated:
[T]he Court is satisfied that a constitutional violation has occurred if the intentional delay in treating Plaintiff's HCV was prolonged for an extra year because Defendants failed to properly provide an annual evaluation in 2016, as demanded by the [Department of Corrections] DOC's own triage protocol, which would have revealed that Plaintiff's severe liver damage qualified him for treatment.
Dkt. 62 at 9-10.
On August 9, 2018, the undersigned issued a second R&R recommending Judge Settle grant Defendants' Motion for Summary Judgment on the issue of qualified immunity. Dkt. 87. On November 11, 2019, Judge Settle adopted the R&R in part and declined to adopt it in part. Dkt. 90. First, Judge Settle agreed with the conclusion there was no clearly established law on the issue of whether the DOC's HCV policy was unconstitutional on its face. Id. at 2. Judge Settle concluded the key distinction was the policy included exceptions to the categorical denial of treatment and the exceptions were based on an individual's objective symptoms. Id. Regarding Plaintiff's objective symptoms, Judge Settle found the R&R did not accurately reflect the record. Id. at 3-6. Judge Settle concluded Plaintiff should be given an opportunity to discover evidence to counter Defendants' medical expert evidence and it was possible questions of fact could exist whether Defendants were negligent or deliberately indifferent. Id. Thus, Judge Settle declined to adopt the R&R on all other issues and referred the matter for further consideration of Plaintiff's Motion to Amend the Complaint and reopen discovery. Id. at 7.
With respect to Plaintiff's objective symptoms, Judge Settle held: “[T]here appears to be a question of fact whether Defendants knew of Reed's worsening symptoms and denied treatment despite this knowledge.” Dkt. 90 at 5. Judge Settle cited to evidence submitted by Defendants, declaration of Defendant Strick. Dkt. 90 at 5 (citing Dkt. 70). In her declaration, Defendant Strick addresses Plaintiff's alleged symptoms and concludes each symptom either does not relate to HCV or is a non-specific symptom which could be associated with many other conditions. Dkt. 70, Strick Declaration, at 3-4. Plaintiff countered he required additional discovery to counter Defendant Strick's expert opinion and conclusions. Dkt. 78 at 11-15.
Further, Judge Settle found:
Finally, Defendants assert that at most Reed has submitted evidence to create a dispute between him and Dr. Strick as to medical opinion testimony. Dkt. 89 at 4-5.
Defendants argue that this is an insufficient factual showing to overcome summary judgment. Id. at 4 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). The Court agrees with Defendants that if this ultimately boils down to a difference of medical opinion, then Reed has failed to meet his burden. The Court, however, recognizes that some evidence suggests that Defendants ignored Reed's extrahepatic symptoms and proceeded with the general HCV protocol. See, e.g., Dkt. 8 at 11 (“The standard DOC protocol for management of hepatitis C has been followed in your case and treatment has been withheld at this point because the degree of your liver disease does not make treatment medically necessary at this time.”). The Court also notes that the Care Review Committee rejected Reed's request for treatment by concluding in part that Reed is fortunate that his infection has not caused more harm to his body considering the length of the infection and, at this point, it is more likely that he would die of other causes. Dkt. 42-1 at 67 (“The patient should be reassured that he only has F2 fibrosis after ~35 years of the disease. Given he is 61 [years old], there is a high likelihood he will die of an alternative process.”). A reasonable juror could possibly conclude that such an explicit statement establishes deliberate indifference to Reed's serious medical needs if legitimate extrahepatic symptoms were presented to the committee and subsequently ignored.
Dkt. 90 at 6.
On January 14, 2019, the undersigned entered an Order granting the Motion for Leave to Amend (Dkt. 74) and the Motion for Limited Discovery (Dkt. 75) and entered a R&R recommending the Motion for Summary Judgment (Dkt. 40) be denied as moot. Dkt. 94, 95. On January 25, 2019, Plaintiff filed an Amended Complaint. Dkt. 96. Plaintiff asserts one claim for violation of his Eighth Amendment rights and one claim for medical malpractice under Washington law. Id. ¶¶ 32-50. On February 14, 2019, Judge Settle adopted the undersigned's R&R recommending Defendants' original Motion for Summary Judgment (Dkt. 40) be denied as moot in light of the Amended Complaint. Dkt. 101. On February 22, 2019, the undersigned issued a scheduling order setting August 22, 2019 as the deadline for completion of discovery.
On March 20, 2019, Defendants filed another Motion for Summary Judgment on qualified immunity while discovery was still pending. Dkt. 108. On April 9, 2019, Defendants filed a Motion for a Protective Order requesting all discovery be stayed pending determination of their Motion for Summary Judgment. Dkt. 113. In other words, Defendants sought a determination there are no disputes of material fact and an order precluding Plaintiff from propounding discovery to gather relevant facts. On May 8, 2019, the undersigned denied both the Motion for Summary Judgment (Dkt. 108) and the Motion for Protective Order (Dkt. 113) without prejudice. Dkt. 120. On May 22, 2019, Defendants filed objections. Dkt. 121. On June 18, 2019, Judge Settle denied Defendants' objections agreeing with the undersigned that Defendants' Motion for Summary Judgment was premature. Dkt. 127. Judge Settle stated nothing precluded Defendants from filing a motion for judgment on the pleadings based on qualified immunity. Id. at 2-3.
On July 9, 2019, Defendants filed a Motion for Judgment on the Pleadings. Dkt. 132. On August 29, 2019, the undersigned issued an R&R recommending in part that Judge Settle deny the Motion for Judgment on the Pleadings because additional discovery is necessary and “qualified immunity cannot be resolved on the pleadings in this case . . . .” Dkt. 137 at 6-9. On September 12, 2019, Defendants filed objections. Dkt. 138. Judge Settle adopted the R&R on Defendants' Motion for Judgment on the Pleadings, dismissing the state law certificate of merit issue and finding that as to qualified immunity, Defendants' Motion for Judgment on the Pleadings improperly requests relief as to individual allegations within Plaintiff's Eighth Amendment claim. Dkt. 147 at 9-10.
In September 2020, Defendants filed the Motion. Dkt. 160. The undersigned deferred ruling on the Motion until the issue of consolidation with 20-5580-BHS-DWC was resolved. Dkt. 166, 168. The undersigned heard Oral Argument on January 14, 2021. See Dkt. 172. On January 26, 2021, the undersigned entered an Order Directing Supplemental Briefing in which the Court re-noted Defendants' Motion for March 12, 2021 and limited briefing to specific questions identified by the Court. Dkt. 173. The parties subsequently filed their supplemental briefs. Dkt. 175, 176, 178.
SUPPLEMENTAL REPLY/MOTION TO STRIKE
In the Supplemental Reply, Defendants argue Plaintiff's supplemental briefing and submissions provided numerous documents which were not previously part of the record and object to the submission of this new evidence. Dkt. 178. Defendants move to strike the following evidence submitted with Plaintiff's Supplemental Response and citations in the briefing thereto:
A. Exhibit E, Complete Deposition of Dr. Chad Zawitz, (Dkt. #177-5 at 1-79); Plaintiff's Supplemental Brief, (Dkt. #176 at 11, ll. 2-4, 16-17, 26, at 12, ll. 1-3);
B. Exhibit F, January 7, 2016 email, (Dkt. #177-6 at 1-2); Plaintiff's Supplemental Brief, (Dkt. #176, at 13, ll. lines 5-6, at 6, line 26, at 7, ll. 1-2, at 13, ll. 5-6);
C. Exhibit G, Care Review Committee Roster, (Dkt. #177-7 at 1-4); Plaintiff's Supplemental Brief, (Dkt. #176 at 6, line 26, at 7, ll. 1-2, at 13, ll. 5-6);
D. Exhibit H, January 13, 2016 email, (Dkt. #177-8 at 1-2); Plaintiff's Supplemental Brief, (Dkt. #176 at 6, line 26, at 7, ll. 1-2, at 13, ll. 5-6);
E. Exhibit I, Care Review Committee Roster, (Dkt. #177-9 at 1-4); Plaintiff's Supplemental Brief, (Dkt. #176 at 6, line 26, at 7, ll. 1-2, at 13, ll. 3-6, 7-13);
F. Exhibit J, [Smith] Kariko discovery responses, (Dkt. #177-10 at 1-17); Plaintiff's Supplemental Brief, (Dkt. #176 at 13, ll. 19-24);
G. Exhibit K, February 24, 2016 email, (Dkt. #177-11 at 1-5); Plaintiff's Supplemental Briefing, (Dkt. #176 at 8, ll. 7-12, at 14, ll. 17-23);
H. Exhibit L, October 19, 2017 email, (Dkt. #177-12 at 1-2); Plaintiff's Supplemental Brief, (Dkt. #176 at 8, ll. 12-15, at 14, ll. 23-26);
I. Exhibit N, February 23, 2016 email, (Dkt. #177-14 at 1-2); Plaintiff's Supplemental Brief, (Dkt. #176 at 13, line 26, at 14, line 1); and
J. Exhibit O, Presentation, (Dkt. #177-15 at 1-50); Plaintiff's Supplemental Brief, Dkt. #176 at 9, ll. 11-20).
Defendants do not dispute the submission of Exhibits A, B, C, D, see Dkt. 177, 178. Thus, the Court will consider Exhibits A, B, C, and D (Dkt. 177) in this Report and Recommendation.
Dkt. 178 at 2-3; See also Local Civil Rule 7(g) (“Requests to strike material contained in or attached to submissions of opposing parties shall not be presented in a separate motion to strike, but shall instead be included in the responsive brief, and will be considered with the underlying motion.”).
Defendants argue the undersigned specifically instructed the parties to search through the existing record for evidence regarding each question on supplemental briefing, and the undersigned told the parties it was not seeking additional evidence not already submitted. Dkt. 178 at 1-2. Defendants argue they did not submit any new evidence in support of their supplemental briefing and cited only to evidence already of record in this case. Id. Defendants contend allowing Plaintiff to file additional evidence at this stage is unfair and should not be permitted, at it leaves them without an opportunity to respond to new evidence. Id. (citing Federal Rules of Civil Procedure 1, 6(b), and 56(d)).
The broad purpose of the Federal Rules of Civil Procedure is to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. Federal Rule of Civil Procedure 16 is the central pretrial rule which authorizes courts to manage their cases “so that disposition is expedited, wasteful pretrial activities are discouraged, the quality of the trial is improved, and settlement is facilitated.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (citing Fed.R.Civ.P. 16). “Orderly and expeditious resolution of disputes” is of utmost importance in the rule of law. Phenylpropanolamine, 460 F.3d at 1227. “[D]elay in reaching the merits, whether by way of settlement or adjudication, is costly in money, memory, manageability, and confidence in the process.” Id. “A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990).
Here, Plaintiff did not move to modify the scheduling order or seek permission to delay his original or Supplemental Response by way of a Federal Rule of Civil Procedure 56(d) continuance. Dkt. 176, 177. The newly submitted evidence was not previously submitted in opposition to Defendants' Motion. See Dkt. The undersigned's Order Directing Supplemental Briefing states in relevant part, “[a]ll briefing should include a thorough citation to relevant law and evidence in the record.” Dkt. 173 (emphasis added). The undersigned's Order did not permit the parties to bring new evidence, not previously cited in the record, before the Court. See id.
Moreover, at the time Plaintiff filed his original Response to Defendants' Motion, he was on notice of the matters of material dispute and at that point Plaintiff had fair opportunity to introduce any evidence he considered relevant in opposition to Defendants' Motion. The undersigned's direction for supplemental briefing was not an invitation for Plaintiff to have a second opportunity to bring new evidence to the Court's attention which could and should have been brought in the original briefing and submissions. To permit plaintiff to introduce additional evidence at this time would be prejudicial to Defendants as well as contradictory to the underlying principles of Federal Rules of Civil Procedure. Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990); Fed.R.Civ.P. 1 and 16. Thus, to avoid significant prejudice to Defendants and to achieve the orderly and expeditious resolution of disputes, the undersigned recommends granting Defendants' Motion to Strike. The undersigned will not consider any new evidence filed in support of the Plaintiff's Supplemental Response or citations to the new evidence therein as identified below:
A. Exhibit E, Complete Deposition of Dr. Chad Zawitz, (Dkt. #177-5 at 1-79);
B. Exhibit F, January 7, 2016 email, (Dkt. #177-6 at 1-2);
C. Exhibit G, Care Review Committee Roster, (Dkt. #177-7 at 1-4);
D. Exhibit H, January 13, 2016 email, (Dkt. #177-8 at 1-2);
E. Exhibit I, Care Review Committee Roster, (Dkt. #177-9 at 1-4);
F. Exhibit J, [Smith] Kariko discovery responses, (Dkt. #177-10 at 1-17);
G. Exhibit K, February 24, 2016 email, (Dkt. #177-11 at 1-5);
H. Exhibit L, October 19, 2017 email, (Dkt. #177-12 at 1-2);
I. Exhibit N, February 23, 2016 email, (Dkt. #177-14 at 1-2); and
J. Exhibit O, Presentation, (Dkt. #177-15 at 1-50).
DEFENDANT WEBER
In the Supplemental Response, Plaintiff states he is no longer pursuing a claim against Defendant Weber, and Defendants indicated they have no objection to this. Dkt. 176, 178. Therefore, the undersigned recommends dismissing Defendant Weber with prejudice.
STANDARD OF REVIEW
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A party asserting a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (citing Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir. 1997).
The party moving for summary judgment has the initial burden to demonstrate no genuine issue of material fact remains in this case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, ” and identifying those portions of the record, including pleadings, discovery materials, and affidavits, “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. At 323. Mere disagreement or the bald assertion stating a genuine issue of material fact exists does not preclude summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). A “material” fact is one which is “relevant to an element of a claim or defense and whose existence might affect the outcome of the suit, ” and the materiality of which is “determined by the substantive law governing the claim.” T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Mere “[d]isputes over irrelevant or unnecessary facts, ” therefore, “will not preclude a grant of summary judgment.” Id. Rather, the nonmoving party “must produce at least some ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 290); see also California Architectural Building Products, Inc., 818 F.2d at 1468 (“No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.”). In other words, the purpose of summary judgment “is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it[.]” Fed.R.Civ.P. 56(e)(3).
DEFENDANTS' MOTION (DKT. 160)
Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs when they denied him access to adequate medical treatment for his HCV. Dkt. 96. In the Motion, Defendants contend they are entitled to qualified immunity with respect to Plaintiff's federal and state law claims, and Plaintiff failed to exhaust his administrative remedies as to several of his federal claims. See Dkt. 160. Defendants also argue Plaintiff has failed to allege Defendants actions amount to personal participation in the alleged constitutional violations. See id.
Plaintiff submitted the following evidence in his Response (Dkt. 164; Dkt. 164-1): (1) transcript of the deposition of Defendant Hammond (Dkt. 164); (2) transcript of the deposition of Defendant Strick (Dkt. 164); (3) transcript of the deposition of non-party Elizabeth Eschbach (Dkt. 164); (4) transcript of the deposition of Defendant (Smith) Kariko (Dkt. 164) (5) transcript of the deposition of Dr. Gish (Dkt. 164); (6) copy of the expert report of Cloie Johnson (Dkt. 164); (7) copies of Plaintiff's 2016 grievances (Dkt. 164); (8) declaration of Plaintiff (Dkt. 163); and (9) declaration of Dr. Gish (Dkt. 165). Plaintiff also previously submitted another declaration (Dkt. 51, 78 and attached exhibits). The following is taken largely from Defendants' Motion as the majority of the factual basis for Plaintiff's medical history is not disputed among the parties. See Dkt. 160, 162. In support of their Motion, Defendants refer to the following evidence: (1) Declaration of Defendant Hammond and attached exhibits (Dkt. 109); (2) Declaration of Defendant (Smith) Kariko (Dkt. 110); (3) Declaration of Weber (Dkt. 111); (4) Declaration of Elizabeth Eschbach and attached exhibits (Dkt. 71); (5) Declarations of Lara Strick, M.D. and attached exhibits (Dkt. 43, 43-1, 70); (6) Declaration of Dr. Chad Zawitz, M.D. (Dkt. 156); (7) copy of excerpts from Plaintiff's deposition (Dkt. 156); and (8) copy of excerpts from Dr. Robert Gish's deposition (Dkt. 162). Plaintiff previously submitted Declarations of Ryan Herrington, Defendant Strick, Dale Caldwell, Andrea Slemp, Elizabeth Eschbach, and Kevin Bovenkamp. See Dkts. 42-45, 55-56, 69-71.
HCV is a viral infection which can slowly damage the liver over time. Dkt. 43, Strick Decl., at 4. After the initial infection, HCV can cause progressive “fibrosis” or scarring of the liver; the most advanced stage being “cirrhosis.” Id. Serious clinical consequences of HCV, such as symptoms of liver dysfunction, overt liver failure, liver cancer, and death can occur in patients with cirrhosis. Id. The progression to cirrhosis is a variable process, with 20-30% of people with HCV progressing to cirrhosis over a 20-year period. Dkt. 43, Strick Decl., at 4-5. Some persons, despite HCV, never develop any scarring of the liver. Id.
In HCV patients, a liver biopsy, a procedure using a needle to obtain several small pieces of liver for microscopic examination, is the “gold standard” for assessing the degree of fibrosis. Id. Liver fibrosis is graded on a scale from F0 to F4 on a METAVIR fibrosis level (hereinafter “fibrosis”): “F0” means no scarring; “F1” means mild scarring; “F2” means moderate scarring; “F3” means severe scarring; and “F4” means very severe scarring/cirrhosis. Dkt. 43, Strick Decl., at 5-6, Table 1.
The DOC Offender Health Plan (“OHP”) defines the level and scope of medical care provided to individuals in DOC custody. Dkt. 109 at 2-3; Dkt. 109-1. The OHP defines three Levels of Care: Level 1 - medically necessary; Level 2 - medically necessary in some instances and must be reviewed and approved by a Care Review Committee (CRC); and Level 3 - not medically necessary and not authorized. Id. The OHP lists HCV as subject to Level 1 treated “under DOC [HCV] protocol.” Dkt. 109 at 3; Dkt. 109-1 at 21. DOC Policy 670.000, Communicable Disease, Infection Prevention, and Immunization and the DOC HCV protocol are documents that guide decision-making for HCV within DOC. Dkt. 43, Strick Decl., at 2; Dkt. 43-1 at 2-9; Dkt. 43-1 at 11-31.
Plaintiff was diagnosed with HCV in 2012 while he was incarcerated at Airway Heights Correctional Center. Dkt. 163, Reed Declaration, at 7. Prior to Plaintiff's arrival at Stafford Creek Correctional Center (“SCCC”) in August 2014, he had a liver biopsy on June 10, 2014. Dkt. 96 at 3; Dkt. 71 at 2. The liver biopsy showed Plaintiff's fibrosis score was an F2. Id.
Plaintiff disputes whether the assessment at stage F2 was correct. Dkt. 165, Gish Decl., at 20-21; Dkt. 96, at 3, ¶ 11. However, Plaintiff does not set forth any of the named Defendants participated in this assessment or biopsy. See Id. Thus, the Court does not find this is a disputed issue of material fact.
After being transferred to SCCC in August 2014, Plaintiff began seeking treatment for his HCV. Id. at 13. On June 5, 2015, Ms. Elizabeth Eschbach (a non-party nurse) evaluated Plaintiff for HCV treatment. Dkt. 71; Dkt. 163, Reed Decl., at 13-14. Ms. Eschbach also monitored Plaintiff in accordance with the HCV protocol. Dkt. 71 at 3. The HCV protocol calls for, in part, annual blood tests designed to predict the fibrosis level of patients without the need for an invasive liver biopsy. Id. at 2-3. These blood tests are used to calculate an AST to Platelet Ratio Index (“APRI”) score, which provides a non-invasive way to predict fibrosis and cirrhosis in HCV patients without imaging or biopsy. Id. at 2-3.
Plaintiff disputes whether Ms. Eschbach properly assessed whether Plaintiff had extrahepatic symptoms warranting treatment. See Id. However, Ms. Eschbach is not a named Defendant in this matter, so this dispute is not related to a material fact at issue in this case. To the extent Plaintiff alleges the named Defendants knew or should have known of his extrahepatic symptoms, the Court addresses this argument with respect to Defendants Hammond, Strick, and (Smith) Kariko, below.
Ms. Eschbach testified because Plaintiff's APRI scores were relatively low compared to others with higher levels of fibrosis, nothing in her evaluations indicated his disease had progressed to an F3 or F4 score and his symptoms were inconsistent with the HCV extrahepatic manifestations. Dkt. 71 at 3. During a chronic HCV infection, “extrahepatic manifestations, ” are physical symptoms of HCV which occur in some patients Dkt. 71 at 2. Thus, Ms. Eschbach did not see an indication for immediate treatment with Direct Acting Anti-virals (“DAAs”). Id. at 3.Ms. Eschbach testified Plaintiff's complaints of arthritis, Barrett's esophagus, and migraine headaches were not symptoms normally associated with HCV. Dkt. 71 at 4. Nevertheless, on Plaintiff's request, Ms. Eschbach reported Plaintiff's case to the HCV CRC. Id. at 4.
The fibrosis score was left blank on the HCV Treatment Eligibility Evaluation Form. Dkt. 51-1 at 46-51.
On October 1, 2015, Defendant (Smith) Kariko evaluated Plaintiff and also referred his case to the HCV CRC. Dkt. 163, Reed Decl., at 14. Defendant (Smith) Kariko noted the following symptoms: “Fatigue, Visual Changes, Cough, Shortness of Breath, Palpitations, Hemorrhoids with Bright Red Blood Per Rectum, Constipation, Nausea, Muscle/Joints Aches, Easy Bruising, and Anxiety.” Dkt. 42-1 at 63; Dkt. 163, Reed Decl., at 14. Defendant (Smith) Kariko also reported Plaintiff had Barrett's esophagus and recommended an endoscopic surveillance every three to five years. Dkt. 42-1 at 63-64. She further recommended an optometry consult and neurology evaluation for headaches. Dkt. 42-1 at 63-64. In December 2015, Plaintiff received APRI testing. Dkt. 70, Strick Decl., at 5-6; Dkt. 71 at 3.
In order to apply the HCV protocol, a specific HCV CRC (hereinafter “CRC”) was created. Dkt. 109 at 3. The CRC is composed of practitioners presenting or discussing care of patients with HCV. Id. Defendants Hammond and Strick are voting CRC members. Id. At CRC meetings, the patient's provider summarizes the patient's history, diagnosis, exam findings, symptoms, and other information relevant to the use of DAAs per the HCV protocol. Dkt. 109 at 3. The CRC then discusses each case presented and determines by a majority vote whether to defer or prioritize treatment with DAAs. Id.
On January 7, 2016, the CRC determined treatment was not warranted because Plaintiff was assessed with an F2 fibrosis score, his APRI was relatively low and had not significantly changed over the time period since his most recent biopsy. Dkt. 42-1 at 67. The CRC found the risks of a repeat liver biopsy outweighed the benefits, since it was unlikely to be significantly different form the last one. Id. The CRC concluded Plaintiff did not meet the DOC Criteria for HCV treatment given his low-moderate fibrosis and no co-morbidity putting him in a high risk category. Id. The CRC recommended Plaintiff be monitored every year and he be reassessed for treatment eligibility “per the HCV protocol.” Id. When initial treatment decisions were made in Plaintiff's case, treatment with DAAs was deferred for patients with lower levels of fibrosis, prioritizing treatment with DAAs for patients with more severe fibrosis. Dkt. 109 at 3.
In October 2016, the DOC's HCV protocol changed. Dkt. 163, Reed Decl., at 23. Under the new protocol, patients with a fibrosis score of F2 or higher were to be given the highest treatment priority for DAAs. Dkt. 71 at 4-5. However, according to Ms. Eschbach, it was not possible for all patients with F2 scores to be treated with DAAs at once. Dkt. 71 at 4. In addition, because the population with the SCCC is consistently changing, e.g. new inmates come into the system which must be screened and evaluated for HCV, some already have F3 or F4 scores which make them a priority. Dkt. 71 at 4. Under this new protocol, Plaintiff was eligible for the highest treatment priority based on his previously established fibrosis score of F2. Id. After the change in protocol to include patients with F2 fibrosis scores, the DOC developed a system to prioritize treatment with DAAs within that population based on APRI scores. Dkt. 71 at 5.
In January 2017, Plaintiff received another APRI test. Dkt. 70, Strick Decl., at 5-6; Dkt. 71 at 3. Plaintiff was evaluated by Ms. Eschbach in April 2017 after other patients with F2 fibrosis scores with APRI scores indicating more advanced scarring. Dkt. 71 at 5. On June 20, 2017, Plaintiff received a Fibroscan, a less invasive diagnostic technique than a liver biopsy used to evaluate HCV patients for fibrosis. Dkt. 70, Strick Decl., at 5-6; Dkt. 71 at 5. The Fibroscan showed his HCV infection may have progressed to the equivalent of an F4, making him a high priority for treatment. Dkt. 71 at 5. In October 2017, the CRC approved Plaintiff for treatment with DAAs which Plaintiff received in November 2017. Dkt. 71-1 at 5-6; Dkt. 163, Reed Decl., at 23.
B. Exhaustion
Defendants argue Plaintiff failed to exhaust his administrative remedies as to the following claims: (1) use of a Fibroscan to monitor his condition; (2) failure to monitor his condition in 2016; and (3) failure to initiate a review of HCV treatment priorities following the protocol change in October 2016 (hereinafter “use of Fibroscan, failure to monitor, and failure to review treatment priorities”). Dkt. 160 at 7, 17-18. Plaintiff argues none of the issues related to use of a Fibroscan, monitoring, or a review of treatment priorities, were apparent at the time Plaintiff filed his Grievance 16602604 (defined infra). Dkt. 162 at 19. Plaintiff argues these are not standalone claims, but rather, “pieces of evidence he will use to support his Eighth Amendment and medical negligence claims.” Id.
i. Evidence
The Washington Offender Grievance Program (“OGP”) allows inmates to file grievances on a wide range of issues related to their incarceration. Dkt. 44 at 1, ¶ 3, at 2, ¶ 5. Each facility manages its grievance program in accordance with DOC 550.100, OGP, and the OGP Manual, Dkt. 44 at 1, ¶ 3; Dkt. 44-1, at 2-5, 8-40, copies of which are available to inmates for review in the library or law library. Dkt. 44 at 2, ¶ 4. Since March 2005, offenders have 20 working days from the date of an incident to file a grievance. Dkt. 44 at 3-4, ¶ 9. The OGP Manual requires offenders to identify the names of all individuals involved in the incidents described in their grievances and make a simple, straightforward statement about what happened and what they are grieving. Dkt. 44-1 at 21.
Plaintiff listed Grievance Log Id. 16602604 (hereinafter “Grievance 16602604”) as the grievance resolution for any grievances concerning facts relating to this case in Appendix 2 to his Amended Complaint. See Dkt. 8; Dkt. 51 at 76-80 (Attachment 5); Dkt. 163, Reed Decl., at 18. On January 21, 2016, Plaintiff appealed the CRC's treatment decision and filed a Level I grievance against Defendant (Smith) Kariko, the members of the CRC, the Director of Health Services, and the DOC arguing he should receive treatment for HCV. Dkt. 163, Reed Decl., at 18-19. In Grievance 16602604, Plaintiff states:
I want to grieve Dr. Smith [Kariko], members of the [CRC], the Director of Health Services and the [DOC] because I am being denied treatment to a known medical condition classified as a Level 1 “necessary” (Hepatitis C) infectious disease….This disease is contagious and can potentially turn into cancer causing further injury to my liver of which DOC and its agents may be liable. When I accepted and was treated for Hepatitis B, the condition required continuing treatments to include treatment for Hepatitis C.
Dkt. 51 at 76 (Attachment 5).
The grievance was disapproved, and Plaintiff appealed to Level II. Id. at 77. In the Level II grievance, Plaintiff named Defendants Hammond, Strick, (Smith) Kariko and members of the CRC. Id. The Level II appeal states:
[The CRC members] that voted to deny proposed care on 1-7-16, exposing me to substantial risk of serious harm leading to arbitrary, unsound & counter-therapeutic clinical decisions….With[out] treatment, the disease will inevitably result in further injury & potentially turn into cancer. I'm suffering 80% loss of energy & have excruciating pain from increasing headaches, fatigue, dizziness, forgetfulness affecting my ability to concentrate & my behavior has dramatically changed, with having unexplained episodes of violence. The symptoms are evidence in my medical file & are listed as warning signs in the HCV Support Project.
Dkt. 51 at 77. This grievance was also disapproved. Id.
In Plaintiff's appeal to Level III, he states in relevant part:
[T]he named employees and contract staff over whom the facility or supervising office has jurisdiction are deliberately denying me available treatment to an infectious disease known as Hepatitis Type C. The continuance of monitoring the disease, doesn't cure the disease, the unnecessary delay in treatment will ultimately result in acceleration to a Level III or Level IV liver disease causing long-term liver damage, increasingly progressing to fibrosis, cirrhosis, or hepatocellular carcinoma (liver cancer) of which the physicians will be liable because they failed to take action to a known medical condition.
Dkt. 51 at 78. Plaintiff's final Level III appeal was denied. Id.
ii. Law and Analysis
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). The requirement's underlying premise is to “reduce the quantity and improve the quality of prisoner suits” by affording prison officials the “time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25.
The PLRA requires “proper exhaustion” of an inmate's claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands compliance with an agency's deadlines and other critical procedural rules because no adjudication system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). The defendant bears the burden of proving that an available administrative remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172.
Plaintiff does not dispute he did not separately grieve his complaints as to the use of a Fibroscan, failure to monitor, or failure to review treatment priorities. Dkt. 162, 176. However, Plaintiff alleges these claims are not standalone claims but rather factual allegations which support his Eighth Amendment claim. See Id. Defendants exhaustion argument rests primarily upon their assertion that Plaintiff's inadequate medical treatment claim contains not one claim, but rather several distinct claims, which Plaintiff did not separately exhaust. Dkt. 160, 175.
A district court in California addressed a similar argument related to the divisibility of an inadequate medical treatment claim. In Gomez v. Winslow, 177 F.Supp.2d 977, 978-82 (N.D. Cal. 2001), the plaintiff filed an administrative appeal alleging “[i]nadequate medical attention to a serious medical need” and explained that he had not received treatment for his HCV despite his “numerous requests to the medical staff.” Id. at 979. In his subsequent lawsuit, the plaintiff asserted an Eighth Amendment claim of deliberate indifference to his serious medical needs. Id. He alleged the prison medical staff had failed to inform him of his HCV diagnosis for years, delayed his treatment, and failed to respond to his requests for information. Id. at 980. Though the Gomez plaintiff only detailed one of these claims in his administrative appeal, the district court rejected the defendants' exhaustion argument and concluded the other allegations were “simply aspects” of the inadequate-medical-treatment problem, because “all of the elements of [the plaintiff's] claim relate to his dissatisfaction with the treatment he received for his hepatitis.” Id. at 983. See also Barrett v. Cate, 2011 WL 6753993, at *5 (E.D. Cal. Dec. 23, 2011).
Although Gomez is not binding on this Court, it is persuasive. Similar to the plaintiff in Gomez, Plaintiff's Grievance 16602604 raised concerns over the alleged inadequate treatment for his HCV. Dkt. 51 at 76-80. Throughout the grievance process, Plaintiff repeated his claim he was not receiving adequate treatment for HCV. See Id. All elements of Plaintiff's inadequate medical treatment claim in this lawsuit relate to his dissatisfaction with the treatment he received for HCV. See Dkt. 96. See Dkt. 51-1 at 76-80; Gomez, 177 F.Supp.2d at 979; See also Mehari v. Cox, 2009 WL 1405019, at *4 (E.D. Cal. May 19, 2009) (citing Gomez, 177 F.Supp.2d at 982); Torrence v. Pelkey, 164 F.Supp.2d 264, 278-79 (D. Conn. 2001) (declining to require exhaustion of new issues in medical care that arose from the “same series of events” concerning medical care that had already been exhausted).
Similarly, Plaintiff argues his allegations related to the use of a Fibroscan, failure to monitor, and failure to review treatment priorities are encompassed within Grievance 16602604 based on an application of the continuing violations doctrine. Dkt. 176 at 1-2. The Second, Fifth, Seventh, Tenth, and Eleventh Circuits have applied the theory of the continuing violations doctrine to exhaustion in prisoner civil rights cases. See Turley v. Rednour, 729 F.3d 645, 649-50 (7th Cir. 2013) (“In order to exhaust their remedies, prisoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.”); Johnson v. Killian, 680 F.3d 234 (2d Cir. 2012) (per curiam) (holding that a prisoner's 2005 exhausted grievance was sufficient to exhaust his 2007 claims based on a continuing violation when the 2005 grievance raised the identical issue); Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (holding that a prisoner was “not required to initiate another round of the administrative grievance process on the exact same issue each time” an alleged deprivation of rights occurred”); Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008) (after plaintiff had exhausted a grievance regarding harassment and threats, he was not required to file a separate grievance for the same risks identified in the first grievance); Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (stating the plaintiff was not required to file separate grievances to “exhaust claims that arose from the same continuing failure to protect him from sexual assault.”).
While the Ninth Circuit has yet to apply the continuing violations doctrine to exhaustion in prisoner cases, numerous district courts in the Ninth Circuit have. See Becker v. Sherman, 2018 WL 4616281, at *5 (E.D. Cal. Sept. 25, 2018); Saif'ullah v. Albritton, 2017 WL 2834119, at *9 (N.D. Cal. June 30, 2017) (quoting Turley, 729 F.3d at 650); Holmes v. Estock, 2021 WL 568790, at *16 (S.D. Cal. Feb. 16, 2021); Bryant v. Fed. Bureau of Prisons, 2014 WL 2472255, at *6 (C.D. Cal. June 2, 2014). In addressing the continuing violations doctrine in a statute of limitations context, the Ninth Circuit held that if the claim involves a “delayed, but inevitable, consequence” of a previously-uncorrected wrong, it is part of a continuing violation. Pouncil v. Tilton, 704 F.3d 568, 581 (9th Cir. 2012). Only if the more-recent incident involves an “independently wrongful, discrete act” should it be treated as a separate, stand-alone claim. Id. Applying this principle to exhaustion in prisoner civil rights cases, when a prisoner-plaintiff grieves a continuing violation, the plaintiff is not required to file multiple, successive grievances raising the same issue, but rather, the plaintiff can satisfy the exhaustion requirement once the prison has received notice of and an opportunity to correct the problem. Saif'ullah v. Albritton, 2017 WL 2834119, at *9 (N.D. Cal. June 30, 2017) (quoting Turley, 729 F.3d at 650).
Here, it is undisputed in Grievance 16602604, Plaintiff complained he was not receiving adequate treatment for HCV. See Dkt. 51 at 76-80. Thus, Plaintiff's claims related to the use of a Fibroscan, failure to monitor, and a review of treatment priorities are ongoing problems related to the inadequate treatment for HCV raised in Grievance 16602604. See Turley, 729 F.3d at 650; Holmes v. Estock, 2021 WL 568790, at *17 (S.D. Cal. Feb. 16, 2021).
In the Supplemental Brief, Defendants cite to Morton v. Hall, 599 F.3d 942 (9th Cir. 2010). In Morton, the plaintiff's complaint alleged prison officials denied him visitation rights and the officials failed to protect him from a violent assault. Id. The plaintiff filed a grievance related to the denial of his visitation rights but presented no evidence he grieved the assault. Id. at 944. The Ninth Circuit held the plaintiff had not properly exhausted his claim related to the assault because the two incidents (assault and visitation) were disconnected and discrete. See Id. In contrast the facts in Morton, all elements of Plaintiff's Eighth Amendment claim relate to his dissatisfaction with the treatment he received for HCV. See Dkt. 96. This is not a case where Plaintiff has filed a lawsuit alleging several unrelated claims (e.g. lawsuit based on inadequate medical treatment and retaliation, which would require separate exhaustion through the prison's grievance process). Cf. Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001) (claim was not exhausted because it was “a separate claim, against a separate individual, premised on a separate and independent legal theory”). Thus, the undersigned does not find Defendants' citation to Morton persuasive. See also Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001) (claim was not exhausted because it was “a separate claim, against a separate individual, premised on a separate and independent legal theory”).
Defendants also argue a “claim” involves specific allegations about the acts or omissions of a specific defendant, and thus, Plaintiff is advocating for an impermissible aggregation of everything he alleges as evidence of a single claim regardless of whether he sought administrative remedies for the multiple acts or omissions which occurred at multiple times and are attributed to multiple individuals irrespective of whether each defendant personally participated. Dkt. 175 at 2-3. However, while this argument may be persuasive in determining personal participation or liability, Defendants conflate the issue of personal participation with exhaustion. Dkt. 175 at 2. Whether Plaintiff's claim is exhausted is a separate issue from whether Defendants personally participated or caused the alleged constitutional violations, and a finding on exhaustion is not removing individual liability or permitting Defendants to be liable on a claim even if they had no role in the alleged constitutional violation. Compare Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (to hold a defendant liable for damages, the wrongdoer must personally cause a constitutional violation) with Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (The underlying premise of exhaustion is to “reduce the quantity and improve the quality of prisoner suits” by affording prison officials the “time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation.”).
Rather, under the well-developed persuasive authority on this issue “when a prisoner plaintiff grieves a continuing violation, he need not file ‘multiple, successive grievances raising the same issue,' and can therefore satisfy his exhaustion requirement ‘once the prison has received notice of, and an opportunity to correct the problem.'” Saif'ullah v. Albritton, 2017 WL 2834119, at *9 (N.D. Cal. June 30, 2017) (quoting Turley, 729 F.3d at 650). Therefore, the undersigned agrees with the Second, Fifth, Seventh, Tenth, and Eleventh Circuits and district courts in the Ninth Circuit and finds the “continuing violation doctrine” applies to Plaintiff's claims and as such, he “need not file multiple, success grievances raising the same issue ... if the objectionable condition is continuing.” Turley, 729 F.3d at 650.
Based on the foregoing, Defendants have not met their burden to prove the affirmative defense of failure to exhaust administrative remedies. See Jones, 549 U.S. 216; Wyatt, 315 F.3d at 1117-19. Therefore, Defendants' Motion should be denied as to Plaintiff's failure to exhaust administrative remedies as to Plaintiff's use of a Fibroscan, failure to monitor, and failure to review treatment priorities claims. Thus, the Court proceeds to consideration of the merits of Plaintiff's Eighth Amendment claims.
C. Eighth Amendment and Deliberate Indifference
Defendants argue they are entitled to qualified immunity because Plaintiff cannot show the deprivation of a constitutional right, framing their Motion under the first prong of the qualified immunity analysis. Dkt. 160 at 8-10 (citing Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per curium) (internal quotation marks omitted) (“The Defendants are all entitled to qualified immunity because Reed cannot show, “first, [that he] suffered a deprivation of a constitutional or statutory right; and second [that such] right was ‘clearly established' at the time of the alleged misconduct.”). Specifically, Defendants argue: (1) there is no evidence Plaintiff's HCV was rapidly progressing; (2) there was no constitutional violation based solely on any Defendants' involvement in the grievance process; (3) none of the Defendants were responsible for monitoring Plaintiff's condition or reviewing treatment priorities; and (4) Plaintiff's Fibroscan claim fails because a medical decision not to order an x-ray or like measures does not violate the Eighth Amendment. Dkt. 160 at 8-16.
In response, Plaintiff argues: (1) this case is not a “difference of medical opinion”; (2) Defendants knew there was an excessive risk to Plaintiff's health; (3) the grievance process arguments are irrelevant; (4) Defendants cannot use negligence as a shield; (5) specific claims should not be dismissed; and (6) reliance on a policy does not provide a defense. Plaintiff argues there are genuine disputes of material fact. Dkt. 162 at 6-19.
1. Personal Participation and Deliberate Indifference Standard
A plaintiff must prove that the particular defendant has caused or personally participated in causing the deprivation of a particular protected constitutional right. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977). To be liable for “causing” the deprivation of a constitutional right, the particular defendant must commit an affirmative act, or omit to perform an act, that he or she is legally required to do, and which causes the plaintiff's deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. The plaintiff must set forth specific facts showing a causal connection between each defendant's actions and the harm allegedly suffered by plaintiff. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Rizzo v. Goode, 423 U.S. 362, 371 (1976).
Supervisory officials cannot be held liable under a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Personal participation is an essential element of a § 1983 claim. Johnson, 588 F.2d at 743-44. Prison officials who are not medical providers are not deliberately indifferent when they defer to the judgment of treating medical providers. See Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004); Hayes v. Snyder, 546 F.3d 516, 526-28 (7th Cir. 2008); cf. Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014) (non-specialist doctor was not deliberately indifferent when he deferred to specialist).
Deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). To establish an Eighth Amendment claim based on a condition of confinement, such as medical care, a prisoner-plaintiff must show: (1) an objectively, sufficiently serious, deprivation, and (2) the official was, subjectively, deliberately indifferent to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). These two requirements are known as the objective and subjective prongs of an Eighth Amendment deliberate indifference claim.
Objective Prong: To satisfy the objective prong, there must be a deprivation of a “serious” medical need. A serious medical need exists if the failure to treat an inmate's condition “could result in further significant injury” or the “ ‘unnecessary and wanton infliction of pain.' ” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
The parties do not dispute whether Plaintiff suffered from a serious medical need. Even if they had, the undisputed evidence shows HCV is an infectious disease affecting one of the human body's essential organs, which presents a serious medical need. See Andrews v. Cervantes, 493 F.3d 1047, 1055 & n.8 (9th Cir. 2007) (HCV is a chronic disease that “quite obviously cause[s] serious health problems[] and can result in death”).
Subjective Prong: For the subjective prong, there must be deliberate indifference. A defendant is deliberately indifferent if he knows that an inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 837. The defendant must not only “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, ” but he “must also draw the inference.” Id. Deliberate indifference may be demonstrated when prison officials deny, delay or intentionally interfere with medical treatment, or it may be inferred from the way in which prison officials provide medical care. See McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992) (finding that a delay of seven months in providing medical care during which a medical condition was left virtually untreated and plaintiff was forced to endure “unnecessary pain” sufficient to present colorable § 1983 claim), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc ). There must be “harm caused by the indifference, ” although the harm does not need to be substantial. See Jett, 439 F.3d at 1096.
As an initial matter, the parties generally disagree on whether Plaintiff is raising a broad and general inadequate medical treatment claim, or whether each claim should be addressed separately. Dkt. 160, 162, 175, 176. In his original Response, Plaintiff argued that he did not have a separate “Fibroscan claim, ” “monitoring claim” or a “review of treatment priorities claim, ” nor are these elements of his claims. Rather, he alleges these are allegations that will be presented to the jury in the form of evidence. Dkt. 162 at 13-14.
When challenged by Defendants, in his Supplemental Response, Plaintiff modified his argument, contending “each claim is supported by individual conduct that violated the Constitution and caused harm to Mr. Reed.” Dkt. 176 at 3-6.
The problem with Plaintiff's contention is that by not raising individual claims and arguing an overall deliberate indifference theory, he fails to account for the requirement that each Defendant personally participate in each constitutional violation. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). Plaintiff is suing each Defendant individually, and as a result, he must show that each Defendant was deliberately indifferent. See Id. His argument that his “claims” are evidence does not change the nature of this lawsuit or the law. Rather, each Defendant had varying degrees of involvement, or lack thereof, with Plaintiff's medical treatment and so the acts of each Defendant must be analyzed separately as they relate to each instance of contact with Plaintiff in determining whether summary judgment is appropriate.
Because subjective knowledge is inherently a person-by-person determination, the Court cannot adopt Plaintiff's en masse approach. Thus, despite Plaintiff's argument to construe his “claims” as “evidence, ” the Court considers Plaintiff's Third Amended Complaint to raise claims of deliberate indifference which fall into four categories of allegedly inadequate medical treatment: (1) Defendant (Smith) Kariko's October 2015 clinical examination; (2) the 2016 CRC decision (Defendants Hammond and Strick were voting members); (3) Defendant Hammond's review of and response to Plaintiff's 2016 grievances/letters; and (4) the failure to use a Fibroscan, monitor, and review treatment priorities. See Dkt. 96.
The Court proceeds to determine whether a factual question exists that each individual Defendant knew of a serious medical need and failed to adequately respond based on an examination of the subjective awareness of each individual Defendant.
After oral argument, the undersigned asked the parties to submit supplemental briefing. Dkt. 173. With respect to Plaintiff's Eighth Amendment claim, the undersigned asked the parties to address whether there was any evidence of personal participation in the alleged constitutional violations. Dkt. 173. Specifically, the undersigned stated:
This briefing should address whether there is any admissible evidence that each Defendant committed an affirmative act (or omitted to perform an act) which caused the alleged constitutional violation and whether there is a causal connection between each Defendant and the harm allegedly suffered by Plaintiff. The parties should specifically address each Defendant's job description and responsibilities, actions taken through the relevant time period (including specific dates on which any actions were taken), and responses to grievances and/or letters. The parties should also address whether the decisions by the Hepatitis C Care Review Committee (“HCV CRC”) reflect an individual opinion by each Defendant.Dkt. 173 at 2.
2. October 2015 Clinical Examination - Defendant (Smith) Kariko
Defendants argue Defendant (Smith) Kariko did not personally participate in any alleged violation of Plaintiff's constitutional rights. Dkt. 160; Dkt. 175 at 11-12. Plaintiff contends Defendant (Smith) Kariko's failed to adequately examine Plaintiff and failed to recommend treatment which caused his HCV treatment to be delayed. Dkt. 176 at 7.
It is undisputed on October 1, 2015, Defendant (Smith) Kariko examined Plaintiff. Dkt. 42-1 at 62-65. At or around the time of the examination, Defendant (Smith) Kariko filled out a form titled “Hepatitis C Treatment History and Physical.” Id. On page three of the form, titled “Plan, ” Defendant (Smith) Kariko did not check the box “Recommend treatment now.” Id. Defendant (Smith) Kariko did check a box labeled “Refer to Hepatitis CRC.” Id. The undisputed evidence reflects Defendant (Smith) Kariko was not Plaintiff's primary care provider. See Dkt. 42-1 at 62-65; Dkt. 110 at 2.
Even assuming Defendant (Smith) Kariko's one-time examination of Plaintiff and referral to the CRC is found to be personal participation, the undisputed evidence reflects Defendant (Smith) Kariko did not act with deliberate indifference. For example, nothing in the record demonstrates Defendant (Smith) Kariko recommended Plaintiff's case not be referred to the CRC, or that she recommended the CRC not pursue further treatment. The undisputed fact that Defendant (Smith) Kariko initiated the CRC evaluation process hardly demonstrates an attitude of deliberate indifference, but rather reflects the opposite.
The fact that Defendant (Smith) Kariko did not check the box “Recommend treatment now” does not change this analysis because the record does not reflect what “treatment” Plaintiff would have received. Plaintiff does not present any evidence Defendant (Smith) Kariko had the authority to provide any immediate treatment with DAAs for HCV, rather that decision was left to the CRC. See Hamby, 2015 WL 1263253 (no showing was made that the defendant believed a referral for surgical evaluation necessarily would result in a recommendation for surgery to be performed, even if he believed surgery would relieve all of plaintiff's pain, thus, there was no Eighth Amendment violation). The record is undisputed Defendant (Smith) Kariko did not participate in the CRC decision.
And even if Defendant (Smith) Kariko acted erroneously by failing to recommend treatment or failing to recognize signs of extrahepatic symptoms, a merely negligent interpretation of symptoms is not enough to show deliberate indifference absent some other evidence of Defendant (Smith) Kariko's subjective intent. See Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (finding no deliberate indifference but merely a “negligent misdiagnosis” by defendant-doctor who decided not to operate because he thought plaintiff was not suffering from a hernia). The deliberate indifference doctrine is limited in scope. “[A]n inadvertent failure to provide adequate medical care” does not, by itself, state a deliberate indifference claim for § 1983 purposes. McGuckin, 974 F.2d at 1060 (“[a] defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need”; Hutchinson, 838 F.2d at 394 (“[m]ere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights”).
In his opposition, Plaintiff points to evidence regarding Defendant (Smith) Kariko's position as the Facility Medical Director (“FMD”) at SCCC, and she had responsibility to “provide medical care and oversee the medical care that the advanced practitioners were providing.” Dkt. 176 at 7 (citing Dkt. 110 at 1; Dkt. 164, Exhibit D, (Smith) Kariko Dep. at 13-14). However, even assuming Defendant (Smith) Kariko had the responsibility to supervise other providers which gave care to Plaintiff, that is nothing more than a theory of vicarious liability, which is an insufficient basis for liability under § 1983. See Hansen v. Black, 885 F.2d 42, 645-646 (9th Cir. 1989).
Accordingly, considering the evidence in the light most favorable to Plaintiff, no reasonable fact finder could conclude that Defendant (Smith) Kariko was deliberately indifferent with respect to her October 1, 2015 examination. Therefore, the undersigned recommends granting Defendants' Motion as to this claim.
3. 2016 CRC Decision - Defendants Hammond and Strick
Defendants argue they have presented evidence that at the time of the CRC's decision, nothing indicated Plaintiff's HCV infection was progressing rapidly and Defendants Hammond and Strick did not personally participate in any alleged constitutional violations. Dkt. 160 at 5-7; Dkt. 175 at 9-10. Plaintiff argues Defendants Hammond and Strick's failure to act and failure to properly supervise delayed Plaintiff's treatment and their decision was medically unacceptable. Dkt. 162; Dkt. 176 at 5-7.
It is undisputed Ms. Eschbach presented Plaintiff's case to the CRC on January 7, 2016. Dkt. 71 at 3-4. Ms. Eschbach did not believe Plaintiff warranted immediate treatment with DAAs, but on Plaintiff's request, she presented his case to the CRC for review. Id. at 3-4. Ms. Eschbach testified Plaintiff's symptoms at the time his case was presented to the CRC were attributed to arthritis, Barrett's esophagus, and migraine headaches, but these are not symptoms typically associated with HCV. Dkt. 71 at 4.
It is also undisputed Defendants Strick and Hammond were voting members of the CRC on January 7, 2016 at which time the CRC voted to defer Plaintiff's treatment with DAAs. Dkt. 70, Strick Decl., at 1-2; Dkt. 109 at 3. Members of the CRC are not provided with a prisoner's medical file, but rather they receive a synopsis thereof. Dkt. 42-1 at 66-68. Defendant Hammond testified he does not recall how he or other members of the CRC voted at the meeting. Dkt. 164-1, Hammond Deposition at 86. It is undisputed that neither Defendant Hammond nor Strick personally treated Plaintiff. See id.; Dkt. 70, Strick Decl. The examination findings reported to the CRC did not include any findings of liver disease such as “jaundice, ascites, encephalopathy, spider angiomata, palmar erythema, arthritis, vasculitic rash, etc.” Dkt. 42-1 at 67. The committee report the CRC released with its determination reads:
61yo M with HCV GT 1a x ~35 yrs. Liver bx F2 6/2014. Current APRI 0.69. Pt does not meet criteria for tx per protocol. Pt requested presented at Hep C CRC for further evaluation. PMHx of arthritis, Barrett's esophagus (being monitored) and migraines. He just had a liver biopsy last year. His APRI is relatively low and has not significantly changed over the time period since biopsy to suspect that there has been unusually rapid progression of his fibrosis. The risks of a repeat liver biopsy outweigh the benefits, since it is unlikely to be significantly different from the last one. The patient should be reassured that he only has F2 fibrosis after ~35 years of the disease. Given he is 61 yo, there is a high likelihood he will die of an alternative process. At this point in time, he does not meet DOC criteria for Hep C treatment given his low-moderate fibrosis and no co-morbidity putting him at a high risk category. Would continue to monitor the patient every year and reassess eligibility for tx as per protocol.
Plaintiff also cites to Judge Settle's prior order wherein Judge Settle stated: “In other words, notwithstanding that Defendants knew Plaintiff had been suffering symptoms for years and knew both the cause of the symptoms and the course of treatment required to effectively treat HCV, Defendants intentionally delayed such treatment until Plaintiff's liver damage grew so severe that treatment could no longer be delayed without risk of dangerous complications and death.” Dkt. 62 at 6. But the context in which this statement was made was in finding that the CRC categorically denied treatment because Plaintiff's F2 fibrosis score was not sufficiently severe to warrant treatment. See Id. at 5-6. As discussed herein, the record before the Court has been developed and now reflects Defendants' decision was not made solely based on a categorial denial. See Dkt. 90 (Judge Settle later found there was no clearly established law on the issue of whether the DOC's HCV policy was unconstitutional on its face.).
Plaintiff has not identified, and the Court has not found any reference in the record to reflect whether Defendant Hammond or Defendant Strick voted for or against deferring Plaintiff's treatment. Aside from the CRC's written decision, Plaintiff has not presented evidence as to what was discussed during the CRC's evaluation which would indicate a specific level of involvement by Defendant Hammond or Defendant Strick. While Plaintiff attempts to address Defendant Hammond and Defendant Strick's actions collectively as members of the CRC and argue this shows personal participation and ultimately deliberate indifference, the Court must individually address each individual Defendant's subjective knowledge. The Court must consider the evidence presented concerning each Defendant individually. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). The decision to defer Plaintiff's treatment was made by all of the members of the CRC functioning as a committee, not Defendants Hammond and Strick acting as individuals. Because the decision was made by the CRC as a whole, the evidence does not reflect Defendant Hammond or Defendant Strick had any authority, acting as individuals, to decide whether Plaintiff would receive treatment and what treatment that would be. Plaintiff has not cited to any authority that a vote as part of a committee or the CRC is sufficient for personal participation. But see Hamby v. Hammond, 2015 WL 1263253, at *21 (W.D. Wash. Mar. 19, 2015), aff'd, 821 F.3d 1085 (9th Cir. 2016) (the defendant, the same Dr. Hammond as this case, presided over a CRC meeting but “there was no indication as to the level or extent of his participation in that meeting, what specifically was discussed there concerning plaintiff's hernia condition and/or treatment therefore, or how defendant Hammond voted” and thus, no showing that Defendant Hammond was sufficiently aware of a significant risk of harm to the plaintiff.)
Plaintiff asserts Defendant Hammond was not an “ordinary” CRC participant, but rather his role on the CRC was due, at least in part, to the cost of new drugs and the Assistant Secretary for Health Services thought it was important for the CMO to be on the CRC. Dkt. 176 at 4-5 (citing Dkt. 164-1, Exhibit A, Hammond Dep. at 73-75). However, the Court does not find this evidence shows that Defendant Hammond had a controlling role in his participation in the January 2016 CRC decision, nor does it show deliberate indifference. For example, Plaintiff does not provide evidence to show Defendant Hammond took any action or made any statements which influenced the CRC to vote in such a way to achieve a cost-savings objective.
In sum, the evidence does not show the decisions by the CRC reflect an individual action by Defendant Hammond or Defendant Strick. While the Court acknowledges Plaintiff's frustration in the CRC/committee based approach to medical treatment decisions and care in prisons, Plaintiff has not presented facts to demonstrate deliberate indifference based on Defendant Hammond or Defendant Strick's participation in the 2016 CRC decision. See Downing v. Clinton, 2006 WL 3054314, at *20 (E.D. Wash. Oct. 26, 2006) (“The undersigned is sympathetic with and shares in Plaintiff's frustration with the chain-of-command and/or committee approach to the delivery of medical care. Indeed, most can agree that it is, or should be, a national embarrassment and sorrow that despite the wealth of this nation, there remain questions of adequacy of health care for poor persons and for institutionalized persons. However, under the facts of record in the captioned case, these issues are not federal constitutional matters addressable by federal courts. Rather, improvement of the OHP process must be addressed through the legislature.”).
Even assuming Defendants Hammond and Strick voted in favor of the decision to defer treatment, and that they could be held personally and individually responsible for the CRC's decision, the examination findings reported to the CRC did not include any findings of liver disease or symptoms which the CRC attributed to liver disease or a rapid progression of Plaintiff's HCV See Dkt. 42-1 at 67. Defendant Hammond testified the symptoms Plaintiff claimed to have at the time of the CRC's decision did not indicate his disease was progressing rapidly, such that treatment with DAAs was medically necessary at that time. Dkt. 70, Strick Decl., at 1-3; Dkt. 109 at 4; Dkt. 109-1 at 50-51. Defendant Strick also testified the symptoms Plaintiff claimed to have did not, in their medical opinion, indicate his HCV was progressing rapidly. See Dkt. 70, Strick Decl., at 7 (“the CRC considered the individual facts and circumstances of his case in order to determine whether treatment with DAAs was medically necessary given the information known by the CRC at the time.”). The CRC relied on information they received from other medical staff, which they did not attribute to an immediate need for treatment with DAAs. See Gibson v. Vanjani, 2018 WL 4053458, at *7 (N.D. Cal. Aug. 24, 2018), aff'd, 790 Fed.Appx. 116 (9th Cir. 2020) (granting summary judgment in favor of prison physicians when they deferred Plaintiff's treatment and continued to monitor the plaintiff for HCV based on recent test results indicating treatment was not needed and deferring treatment was in line with applicable guidelines).
Judge Settle previously held there was no clearly established law on the issue of whether the DOC's HCV policy was unconstitutional on its face. Dkt. 90 at 2. Judge Settle concluded that the key distinction was that the policy included exceptions to the categorical denial of treatment and the exceptions were based on an individual's objective symptoms. See Id. Thus, to the extent Plaintiff's claims continue to challenge Defendants actions pursuant to DOC policy, Defendants are entitled to qualified immunity. To the extent Plaintiff argues that Defendants either failed to follow the DOC policy or that he had extrahepatic symptoms, see Dkt. 162 at 16, the Court has addressed these arguments in conjunction with the individual Defendants, see supra.
Plaintiff disputes their involvement, arguing Defendants Hammond and Strick should have investigated Plaintiff's medical treatment, and they knew it was not medically acceptable to deny treatment. See Dkt. 176 at 5-6. However, aside from arguing supervisory liability, Plaintiff has not pointed to any evidence indicating either Defendant Hammond or Defendant Strick were aware of information, which should have made them aware of a significant risk of substantial harm to Plaintiff's health or safety that immediate treatment with DAAs was necessary. See Hamby v. Hammond, 2015 WL 1263253, at *21 (W.D. Wash. Mar. 19, 2015), aff'd, 821 F.3d 1085 (9th Cir. 2016). And even if Defendants Hammond and Strick and the CRC erroneously attributed Plaintiff's symptoms presented to the CRC as not related to HCV or not indicative of a rapid progression of Plaintiff's HCV requiring immediate treatment with DAAs, a merely negligent interpretation of symptoms is not enough to show deliberate indifference absent some other evidence of Defendant Hammond or Defendant Strick's subjective intent. Toguchi, 391 F.3d at 1060; Wilhelm, 680 F.3d at 1122-23; Farmer, 511 U.S. at 835.
To the extent Plaintiff argues Defendants Hammond and Strick and the CRC members were generally familiar and relied on the AASLD/IDSA Guidelines related to HCV treatment, and in light of his training and familiarity, a reasonable jury could infer Defendants knew HCV at the F2 level presented a serious medical need and excessive risk to Plaintiff, this argument reflects a difference of opinion which the Court below with respect to Dr. Gish and Dr. Zawitz's expert opinions, see supra.
To support his claim that Defendants Hammond and Strick acted with deliberate indifference, Plaintiff points to a statement from the CRC that Plaintiff would likely die of an alternative process. Dkt. 162; Dkt. 176. Plaintiff interprets this statement as expressing a belief that the CRC had no obligation to provide Plaintiff with medical treatment. Dkt. 176 at 13. Judge Settle previously indicated “[a] reasonable juror could conclude that such an explicit statement establishes deliberate indifferent to Reed's serious medical needs if legitimate extrahepatic symptoms were presented to the [CRC] and subsequently ignored.” Dkt. 90 at 6. After further development of the record, Defendants have presented evidence explaining the statement. In his deposition, Defendant Hammond explained the statement, providing:
[A] person who's 61, who has an F-2 level of Fibrosis, and presumably has had the hepatitis C infection for decades, was having slow advancement of the fibrosis, that statistically would not be expected to develop clinical cirrhosis or hepatic insufficiency that would lead to death.
…
Meaning there's a low likelihood he would die of hepatic insufficiency or cirrhosis and therefore he would die of some other common disease such as heart disease or cancer.
Dkt. 164, Exhibit A, Hammond Dep. at 89-90.When asked about the importance of treating symptoms from a condition, Defendant Hammond responded:
If a person were experiencing significant symptoms that were thought to be related to a disease process and an ongoing disease process, that in my mind would be a clinical factor in favor of the urgency of treatment.
Dkt. 164, Exhibit A, Hammond Dep. at 89-90.
When the CRC's statement is read in the context in which it arose, along with Defendant Hammond's deposition testimony, it is insufficient, without more, to infer the CRC intended to deny Plaintiff treatment because of his age or because Plaintiff would likely die of an alternative process. Rather, the evidence reflects the totality of the CRC's decision struck a balance between Plaintiff's recent biopsy and test results, lack of extrahepatic symptoms, his lack of co-morbidities, and his age. Thus, the evidence does not establish an issue of fact as to whether the CRC's statement constitutes a pretextual reason for deferring treatment.
Further, Judge Settle's prior conclusion that “[a] reasonable juror could conclude that such an explicit statement establishes deliberate indifferent to Reed's serious medical needs” requires the conditional premise “if legitimate extrahepatic symptoms were presented to the [CRC] and subsequently ignored” to be correct. But, as discussed above, Defendants Hammond and Strick and the CRC did not attribute any of Plaintiff's symptoms as presented to the CRC as indicating a rapid progression of his HCV warranting immediate treatment with DAAs. See Dkt. 70, Strick Decl., at 1-2, 7; Dkt. 109 at 4, Dkt. 109-1 at 50-51. See Gibson v. Vanjani, 2018 WL 4053458, at *11-12 (N.D. Cal. Aug. 24, 2018) (granting summary judgment to prison doctors when “[t]here was no evidence that a doctor ever attributed any of the [medical symptoms] to HCV.”). As a result, because the record shows there were no symptoms presented to the CRC which Defendant Strick, Defendant Hammond or the CRC attributed to a rapid progression of Plaintiff's HCV and ignored, there is no evidence in the record to support the conditional premise. Thus, the Court does not find a factual question as to whether they were deliberately indifferent.
Dr. Gish testified Plaintiff showed signs extrahepatic that were not adequately evaluated by his medical providers and it was “likely” he had extrahepatic symptoms that were not identified by Plaintiff's providers. See Id. at 21-22. However, Dr. Gish testified the extrahepatic symptoms Plaintiff may have had were “subtle markers” and it was “highly variable” whether another medical provider would be able to identify those markers. Dkt. 161, Gish Dep., at 7-8. In addition, Dr. Gish did not have any specific opinion as to the named Defendants, rather he generally opined “all providers that were involved in denying care and treatment for Mr. Reed fell below the standard of care….” See Dkt. 161, Gish Dep., at 9-10 (Defendant Hammond); 10-12 (Defendant Strick); 12-13 (Defendant (Smith) Kariko). Thus, although Plaintiff contends Dr. Gish's opinion presents an issue of material fact, the Court finds this evidence does not demonstrate Defendants Hammond or Strick attributed Plaintiff's symptoms which were presented to the CRC to his HCV. Dr. Gish's opinion is also discussed in more detail below, see supra.
Plaintiff argues there is a factual dispute regarding whether the medical opinions relied upon are medically acceptable. Dkt. 162 at 6-8. Plaintiff points to the opinion of his expert, Dr. Gish, which provides:
The decision to delay Mr. Reed's treatment based on his fibrosis score cannot be fairly considered a ‘difference of medical opinion' compared to the decision to treat him. It was not medically acceptable to delay treatment, so there was not a sound ‘medical opinion' not to treat him at that time. The decision to delay treatment was an incorrect and unsound medical decision that fell below the established standard of care. Treating Mr. Reed would have been a sound and correct medical decision. Immediate treatment was an overwhelmingly better option.
Dkt. 165, Gish Declaration, at 21; see also Gish Decl., at pages 4-5 (no medical justification for delaying treatment based on fibrosis score).
Plaintiff also points to another treating physician who recommended treatment in 2012, Dkt. 162 at 7 (citing Dkt. 51-1 at 44) (the citation actually refers to a form dated May 2014). However, there is no indication as to what treatment the physician recommended, rather the “Recommend treatment now” box is checked. Further, this form was completed before Plaintiff's liver biopsy in June 2014 which indicated a F2 fibrosis score. See Dkt. 96 at 3; Dkt. 71 at 2. Thus, the Court concludes this evidence is not sufficient to establish another provider recommended Plaintiff be treated with DAAs immediately or that the CRC's decision was medically unacceptable. In addition, Plaintiff points to testimony from Ms. Eschbach wherein she stated “they all should get treated … Yeah. I'm a liberal. I believe that.” Dkt. 164, Exhibit C, Eschbach Dep. at 52. She further clarified, “But I'm in no way an expert[, ]” and that she was not qualified to make a “treatment call.” Id. at 59-60. Based on Ms. Eschbach's testimony she is not an expert and not qualified to make a treatment decision, the Court does not find this citation to the record persuasive to establish an issue of fact.
On the other hand, according to Defendants' expert, Dr. Chad Zawitz, M.D., Defendants' deferral of treatment for early stage fibrosis with ongoing interval monitoring was consistent with the general practice in the community at large at that time. Dkt. 156-1 at 25-26, 29. Dr. Zawitz opined Plaintiff's symptoms were not of the nature outlined or implied in the DOC HCV protocol and are not the type of extrahepatic symptoms which indicate a rapid progression. Id. at 26. Dr. Zawitz opined the CRC's 2016 decision was consistent with their active protocol as well as the current standard of care at that time. Dkt. 156-1 at 26.
A mere difference of opinion as to which medically acceptable course of treatment should be followed does not establish deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (summary judgment for defendants was properly granted because plaintiff's evidence that a doctor told him surgery was necessary to treat his recurring abscesses showed only a difference of opinion as to proper course of care where prison medical staff treated his recurring abscesses with medicines and hot packs). In the context of HCV treatment, several district courts have found a prisoner's disagreement with a course of treatment amounts only to a difference of medical opinion. See Dotson v. Wilkinson, 477 F.Supp.2d 838, 849 (N.D. Ohio 2007) (“[Plaintiff's] difference in opinion with prison medical personnel regarding the appropriate diagnoses and treatment for his Hepatitis C are not enough to state a deliberate indifference Claim.”); Clarke v. Blais, 473 F.Supp.2d 124, 125-26 & n. 4 (D. Me. 2007) (inmate's claims against jail's medical services provider for failure to treat inmate's hepatitis C with anti-viral therapy “boil down to [a] disagreement with the chosen course of treatment, and that is not the basis for a constitutional claim”); Hollis v. Dir. of Corr., 560 F.Supp.2d 920, 926-27 (C.D. Cal. 2008) (physicians failure to authorize a liver biopsy for a prisoner-plaintiff and failure to provide him with pegylated interferon and ribavirin treatment constituted nothing more than “[a] difference of opinion” about his medical treatment that “does not amount to a deliberate indifference to [plaintiff's] serious medical needs.”) (internal citations omitted); Woods v. Harrington, 2010 WL 4624125, at *3 (E.D. Cal. Nov. 4, 2010) (denying treatment for hepatitis C to a prisoner because he does not meet the treatment program requirements does not amount to deliberate indifference); Edrosa v. Chau, 2020 WL 5500217, at *4 (S.D. Cal. Sept. 11, 2020) (allegations a prison's criteria for HCV treatment was defective because they did not comport with a renowned hepatologist amounted to a difference of medical opinion and failed to state a claim for relief).
“[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk to [the prisoner's] health.' ” Toguchi, 391 F.3d at 1058 (second alteration in original). However, it is not enough to simply point to Dr. Gish's contrary opinion to demonstrate the CRC's decision was medically unacceptable.
The First, Fifth, and Ninth Circuits have analyzed the meaning of “medically unacceptable under the circumstances, ” in the context of gender reassignment surgery for prisoners. See Kosilek v. Spencer, 774 F.3d 63, 91-92 (1st Cir. 2014) (The First Circuit held “[t]he choice of a medical option that, although disfavored by some in the field, is presented by competent professionals does not exhibit a level of inattention or callousness to a prisoner's needs rising to a constitutional violation.”); Gibson v. Collier, 920 F.3d 212, 220 (5th Cir. 2019) (the standard for determining that treatment is medically unacceptable requires “universal acceptance” in the medical community that a particular course of treatment is necessary. Where “there is robust and substantial good faith disagreement dividing respected members of the expert medical community, there can be no claim under the Eighth Amendment.”).
The Ninth Circuit addressed the issue in the context of gender dysphoria in Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019). The Ninth Circuit applied the law of Kosilek and Gibson but disagreed with those cases on the facts. See Id. The Ninth Circuit found the facts were different than Kosilek, as it was not presented with the case of “dueling experts” but rather the district court had permissibly credited the opinions of the plaintiff's expert that surgery was necessary because the experts were well-qualified to render such opinions and the state's treating physician and medical experts lacked expertise and either incredibly applied (or did not apply) the appropriate standards of care. Edmo, 935 F.3d at 787-88.
Here, the medical evidence differs from Edmo. Rather, similar to Kosilek, the Court is presented with qualified and credited experts disagreeing about whether Plaintiff should have received immediate treatment with DAAs. Thus, on the record before it, the Court concludes either of two courses of treatment (immediate treatment with DAAs v. deferring treatment and monitoring) were medically acceptable. Kosilek, 774 F.3d at 90. In light of those medically acceptable alternatives, it is not the place of the Court to “second guess medical judgments or to require that the DOC adopt the more compassionate of two adequate options.” Id. (quotation omitted). See Campbell v. Kallas, 936 F.3d 536, 549 (7th Cir. 2019) (“[A] factfinder may infer deliberate indifference only where a prison medical professional makes ‘a medical decision that has no support in the medical community' and provides ‘a suspect rational … for making it.' … Prison healthcare providers necessarily exercise medical judgment-and thus by definition do not act with deliberate indifference-when they base treatment decisions on accepted national standards and the advice of an expert.”).
Thus, even if Plaintiff had demonstrated personal participation on behalf of Defendants Hammond and Strick, he has not presented evidence that the CRC's decision to defer treatment was medically unacceptable under the circumstances or in conscious disregard of an excessive risk to Plaintiff's health. Thus, the Court recommends Defendants' Motion be granted as to this claim.
4. Plaintiff's Grievances and Letters - Defendant Hammond
Defendants argue although Defendant Hammond reviewed Plaintiff's letters claiming he was being denied medical care, the symptoms Plaintiff claimed to have were not related to HCV or were non-specific such that they could be associated with other conditions. Dkt. 160 at 5-7. Plaintiff argues Defendant Hammond's role in the grievance process should have triggered him to intervene or investigate Plaintiff's HCV treatment. Dkt. 176 at 5-6.
Plaintiff does not argue Defendant Strick's receipt of Plaintiff's grievances or letters establishes any personal participation. See Dkt. 176 at 6-7.
It is undisputed Defendant Hammond reviewed Plaintiff's grievances after the January 2016 CRC decision and Plaintiff's letters dated February 2, 2016 and February 5, 2016. Dkt. 51 at 76-78; Dkt. 109 at 3, 4-5; Dkt. 164-1, Hammond Dep at 36-38. In responding to Plaintiff's Level II grievance, Defendant Hammond provided the following:
I received your Level I and Level II grievance, the investigation, and the responses and find them to be adequately investigated. I have read your Level III appeal. You grieve not being provided treatment for Hepatitis C.
As explained in the [L]evel I and II grievance responses your expressed understanding of the reasoning behind the decision in your case not to provide hepatitis C treatment at this time demonstrates misunderstanding of the clinical decision making in your case. The standard DOC protocol for management of hepatitis C has been followed in your case and treatment has been withheld at this point because the degree of your liver disease does not make treatment medically necessary at this time. You are welcome to discuss further the reasoning behind your decision making in your case with the SCCC Infection Prevention Nurse or your primary care provider. Your condition will be monitored to assess if and when treatment might become medically necessary.
Your grievance is not supported and I concur with level I and II grievance responses. I encourage you to work collaboratively with your health care providers to attain the best medically necessary care for your health conditions.
You remain free to pursue additional care under the terms of DOC Policy 600.020, Offender Paid Health Care.
Dkt. 51 at 78.
In his initial response to Defendants' Motion, Plaintiff argues involvement in the grievance process provides a “fuller context for the events as they unfolded” but concedes none of his claims are based solely on involvement in the grievance process. Dkt. 162 at 11. Arguing a different theory in his Supplemental Response, Plaintiff argues Defendant Hammond played a “central” role in the grievance process as Defendant Hammond was repeatedly named regarding inadequate treatment. Dkt 176 at 5 (citing Dkt. 51 at 76-78). Plaintiff argues Defendant Hammond failed to conduct any sort of reasonable investigation into the response to Plaintiff's grievances despite his knowledge that it was not medically acceptable to deny treatment. Dkt. 176 at 5. Plaintiff now argues Defendant Hammond was notified, through Plaintiff's grievances, of his extrahepatic symptoms. Dkt. 176 at 11 (citing Dkt. 51 at 77 (“I'm suffering 80% loss of energy & have excruciating pain from increasing headaches, fatigue, dizziness, forgetfulness affecting my ability to concentrate & my behavior has dramatically changed, with having unexplained episodes of violence. The symptoms are evident in my medical file & are listed as warning signs in the HCV Support Project.”)).
Allegations arising from a defendant's actions in reviewing and/or denying administrative appeals typically do not constitute constitutional violations. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“Inmates lack a separate constitutional entitlement to a specific prison grievance procedure.”). However, allegations that a defendant failed to adequately respond to a prisoner's serious medical needs, after being made aware of them through the administrative appeals process, may state a cognizable Eighth Amendment claim. See Jett, 439 F.3d at 1097-98 (“prison administrators are liable for deliberate indifference when they knowingly fail to respond to an inmates requests for help”). If the administrative or supervisory defendant “knew of an ongoing constitutional violation and ... had the authority and opportunity to prevent the ongoing violation, ” yet failed to act to remedy the violation, then the defendant may be held liable under § 1983. Herrera v. Hall, 2010 WL 2791586 at *4 (E.D. Cal. July 14, 2010) (unpublished) (citing Taylor, 880 F.2d at 1045), report and recommendation adopted, 2010 WL 3430412 (E.D. Cal. Aug. 30, 2010).
Even assuming Defendant Hammond's role in the grievance process and responding to Plaintiff's letters could demonstrate personal participation in denying Plaintiff adequate medical treatment, there is no evidence in the record Defendant Hammond attributed the symptoms reported in Plaintiff's grievances or letters to a rapid progression of Plaintiff's HCV which would warrant immediate treatment with DAAs. Defendant Hammond testified loss of energy and fatigue can be associated with chronic HCV infection, but Defendant Hammond did not attribute Plaintiff's “rendition of symptoms” to indicate a rapid progression of the disease as the “symptoms he described are either not common extrahepatic symptoms or they are so nonspecific (such as fatigue and loss of energy ….) that they could be associated with many conditions or they are listed as symptoms that Mr. Reed speculated might occur at some unknown point in the future.” Dkt. 109 at 5-6. See Vanjani, 2018 WL 4053458 at *11-12. And even if Defendant Hammond erroneously attributed Plaintiff's complaints as not related to HCV or non-specific and associated with other conditions, a merely negligent interpretation of symptoms is not enough to show deliberate indifference absent some other evidence of Defendant's subjective intent. Toguchi, 391 F.3d at 1060; Wilhelm, 680 F.3d at 1122-23; See Estelle, 429 U.S. at 106.
Further, even considering Dr. Gish's expert testimony, which Plaintiff argues shows Defendant Hammond's actions were medically unacceptable, the interpretation of these symptoms of fatigue, pain, headaches, dizziness, forgetfulness, and episodes of violence, is not clear in Dr. Gish's expert report. Dr. Gish does not reference Defendant Hammond's role in the grievance process or Plaintiff's complaints of fatigue, pain, headaches, dizziness, forgetfulness, and episodes of violence, or state an opinion as to these symptoms. See Dkt. 165, Gish Decl. at 20-23. Rather, Dr. Gish opined Plaintiff presented “subtle markers” based on Plaintiff's chemistry and laboratory tests and it would be “highly variable” as to whether another medical provider would attribute those indications to a rapid progression of Plaintiff's HCV infection. Dkt. 161, Gish Dep. at 7-8.
Plaintiff does not set forth evidence to suggest Defendant Hammond had subjective knowledge of any risk based on Plaintiff's complaints through the grievance process or that he consciously disregarded that risk. A mere mistaken diagnosis does not give rise to a constitutional claim. Therefore, the Court concludes Plaintiff has failed to demonstrate a genuine issue of material fact and recommends Defendants' Motion be granted as to this claim.
5. Failure to use a Fibroscan
Defendants argue the failure to use a Fibroscan to detect the progression of Plaintiff's HCV fails in light of Supreme Court precedent. Dkt. 160 at 15-16. Plaintiff argues he does not have a “Fibroscan” claim, but rather these are allegations which will be presented to the jury in the form of evidence and are not standalone claims. Dkt. 162 at 13-15.
To the extent this allegation is merely “evidence” and not a standalone claim, the Court has extensively discussed Defendants' participation, or lack thereof, in making treatment decisions related to Plaintiff's HCV. To the extent the failure to use a Fibroscan can be read as separate basis for liability, the failure to order a specific test is at least a difference of medical opinion and at most, negligent. See Estelle, 429 U.S.at 107 (“[b]ut the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.”).
Therefore, the Court recommends Defendants' Motion be granted as to this claim.
6. Failure to Monitor, Failure to Review Treatment Priorities - Defendants Hammond, Strick, and (Smith) Kariko
Defendants argue they were not personally responsible for monitoring Plaintiff's condition in 2016 or failing to conduct a review of treatment priorities. Dkt. 160 at 13-15. In his original response, as with the failure to use a Fibroscan, Plaintiff argues the failure to monitor and failure to review treatment priorities are not standalone claims, but rather evidence which will be presented to the jury. Dkt. 162 at 13-14. In his Supplemental Response, Plaintiff argues Defendants' job descriptions required them to review Plaintiff's medical history and current treatment plan. Dkt. 176 at 14.Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002). Each government official, regardless of his or her title, is only liable for his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Ashcroft v. Iqbal, 566 U.S. 662, 676 (2009).
It is undisputed Defendant Hammond was the CMO at the DOC from 2008 to July 2017. Dkt. 109 at 2. Defendant Hammond's position was not clinical but administrative, and he was tasked with the responsibility “to oversee the quality and safety and appropriateness of healthcare delivered in the Washington State Prison System.” Dkt. 164-1, Exhibit A, Hammond Dep. at 16. He was the clinical supervisor for Defendant (Smith) Kariko, Defendant Strick, and Ms. Eschbach. Id. at 17, 44. Defendant Hammond did not work at SCCC, where Plaintiff was housed during the relevant time at issue in this case. Dkt. 109 at 6. Defendant Hammond worked at DOC headquarters in Tumwater, Washington. Dkt. 109 at 6. All monitoring is performed at the patient's facility. Dkt. 109 at 6. It is further undisputed Defendant (Smith) Kariko was the FMD at SCCC. Dkt. 110 at 1. Defendant (Smith) Kariko was not Plaintiff's primary care provider, but authorized various diagnostic tests and consultations in her position as FMD. Dkt. 110 at 2. Defendant Strick is the Washington DOC's s Infectious Disease Physician and was not Plaintiff's primary care provider. Dkt. 51-3 at 25. Defendant Strick testified “[m]onitoring of HCV patients was and is accomplished by having an infection prevention nurse and/or the primary provider at the patient's facility use the HCV treatment eligibility evaluation form to re-evaluate annually.” Dkt. 70, Strick Decl., at 4.
Plaintiff refers to Defendants' job responsibilities as evidence of personal participation, but such general allegations of supervisory responsibility do not establish a constitutional violation. Rather, in a § 1983 action, “supervisory officials are not liable for actions of subordinates on any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). A supervisor may only be liable “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Id. at 646 (citation omitted); Ashcroft v. Iqbal, 566 U.S. 662, 676 (2009) (Government officials, however, “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. ”).
Plaintiff asserts Defendant Hammond was responsible for all aspects of Plaintiff's care by virtue of his position, but the evidence demonstrates Defendant Hammond's role was administrative and was not involved in, and had no casual connection to, the treatment provided to Plaintiff by SCCC staff after the January 2016 CRC decision and responding to Plaintiff's letters and grievances. Similarly, Plaintiff fails to identify any medical decision by Defendant Strick indicating she was responsible for care and treatment of Plaintiff's HCV after the January 2016 CRC decision. To the extent Defendant Strick's job description is to help supervise the infection control nurses and act as a medical consultant if an issue arises, there is no evidence in the record Defendant Strick was required to monitor all HCV patients, particularly those not directly under her care. Dkt. 51-3 at 26. Prison officials who are not medical providers are not deliberately indifferent when they defer to the judgment of treating medical providers. See Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004); Hayes v. Snyder, 546 F.3d 516, 526-28 (7th Cir. 2008); cf. Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014) (non-specialist doctor was not deliberately indifferent when he deferred to specialist).
With respect to Defendant (Smith) Kariko, there is no evidence she participated in the 2016 CRC decision or any future treatment recommendations. See Id. Defendant (Smith) Kariko testified it was not within her role as the FMD to monitor the progression of Plaintiff's HCV. Id. at 3. Defendant (Smith) Kariko testified she was not aware in 2016 Plaintiff's condition was worsening or progressing rapidly and conducting a review upon the protocol change “did not occur to her” because HCV is typically a slow to progress disease. Id. at 3. Rather, the evidence reflects Ms. Eschbach was responsible for monitoring Plaintiff's condition in accordance with the DOC HCV protocol. Dkt. 71 at 2. Thus, “[b]ecause vicarious liability is inapplicable to” suits brought pursuant to 42 U.S.C. § 1983, and Plaintiff has not set forth evidence each Defendant, through their own individual actions, failed to monitor Plaintiff or failed to review treatment priorities, he has not established an Eighth Amendment violation.
To the extent Plaintiff argues the HCV Policy changed in 2016, and Defendants should have done more to ensure Plaintiff received treatment sooner, this does not establish Defendants had subjective knowledge that Plaintiff faced a substantial risk due to a lack of additional monitoring or reviewing treatment priorities. Plaintiff has not cited to any evidence Defendants Hammond, Strick, or (Smith) Kariko drew an inference that a substantial risk of harm existed if Plaintiff did not receive treatment with DAAs immediately. Accordingly, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official ... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d 236; see also Hayes, 546 F.3d at 527-28 (“Because the non-medical defendants were entitled to rely on the professional judgment of medical prison officials, and because nothing in [the prison medical provider's] reports made it obvious that [the inmate] might not be receiving adequate care, the district court correctly granted summary judgment in favor of the non-medical defendants.”). Rather, Plaintiff attempts to sidestep the subjective knowledge requirement by arguing individual Defendants were liable solely based on their job description and supervisory liability, which is unavailing.
Therefore, the Court finds Plaintiff has failed to defeat summary judgment on as to his failure to monitor and failure to review treatment priorities the basis of the individual Defendants' job descriptions or awareness of a policy change alone.
The Court notes Judge Settle previously found, “the Court is satisfied that a constitutional violation has occurred if the intentional delay in treating Plaintiff's HCV was prolonged for an extra year because Defendants failed to properly provide an annual evaluation in 2016 . . ., ” Dkt. 62, at 11. However, as discussed herein, none of the named Defendants were responsible for the failure to monitor or provide an annual evaluation in 2016.
D. Qualified Immunity
Because the undersigned has recommended granting summary judgment in favor of all Defendants as to all remaining claims, it need not reach additional qualified immunity arguments advanced by the defense.
E. State Law Claims
On January 13, 2020, the Court allowed Plaintiff's medical negligence claims under Washington law to go forward. Dkt. 147. Defendants make the same argument as to whether the law should be applied prospectively in order to preserve it for appeal. Dkt. 160 at 19. Next, Defendants argue they are entitled to qualified immunity under Washington law, and Plaintiff's medical negligence claims fail as a matter of law because Plaintiff cannot establish proximate cause linking any Defendant's care to an injury. Dkt. 160 at 21-24. Plaintiff argues state law qualified immunity does not apply to medical providers and the evidence of medical negligence is sufficient to defeat summary judgment. Dkt. 162 at 23.
Where there are pendent state claims remaining after federal claims have been dismissed, this court has the discretion to decline jurisdiction. 28 U.S.C. § 1367(c)(3). As the 42 U.S.C. § 1983 claims have been dismissed, no federal claims remain. The negligence claims are clearly state law claims, governed by RCW 7.70, et seq. Matters of negligence under state law are more properly decided by the state courts. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Therefore, the Court declines supplemental jurisdiction. The Court recommends dismissing Plaintiff's state law claims without prejudice to proceeding against Defendants in state court. See Downing v. Clinton, 2006 WL 3054314, at *20 (E.D. Wash. Oct. 26, 2006).
CONCLUSION
The undersigned recommends granting Defendants' request to strike the new evidence contained in Plaintiff's Supplemental Response, and the undersigned has not considered the new evidence in this Report and Recommendation. The undersigned further recommends Defendants' Third Motion for Summary Judgment be denied on the issue of exhaustion but granted as to Plaintiff's Eighth Amendment deliberate indifference claims against Defendants Hammond, Strick, and (Smith) Kariko. Plaintiff's claims against Defendants Hammond, Strick, and (Smith) Kariko should be dismissed with prejudice. The undersigned recommends Defendant Weber be dismissed with prejudice as Plaintiff no longer pursues any claims against him. The undersigned recommends dismissing Plaintiff's state law claims without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on May 7, 2021, as noted in the caption.