Rosado v. Alameida

• Decision Date: 14 June 2007
• Docket Number: No. CIV.03CV1110J(LSP).,CIV.03CV1110J(LSP).
• Citation: 497 F.Supp.2d 1179
• Court: U.S. District Court — Southern District of California
• Parties: Carlos ROSADO, Plaintiff, v. Edward ALAMEIDA, Jr., et al., Defendants.

Page 1179

497 F.Supp.2d 1179

Carlos ROSADO, Plaintiff, v. Edward ALAMEIDA, Jr., et al., Defendants.

No. CIV.03CV1110J(LSP).

United States District Court, S.D. California.

June 14, 2007.

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Aaron P. Arnzen and Darcie A. Tilly, Cooley Godward Kronish LLP, San Diego, CA, for Plaintiff.

Karen Walter, General's Office, San Diego, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Doc. No. 165.]

JONES, District Judge.

Before the Court is Defendants' Motion for Summary Judgment ("Motion") as to all claims in Plaintiff Olga Rosado's ("Plaintiff") Complaint. [Doc. No. 165.] Plaintiff filed an Opposition to the Motion for Summary Judgment ("Opposition"), and Defendants filed a Reply to the Opposition ("Reply"). [Doc. Nos. 175, 181.] Pursuant to Civil Local Rule 7.1(d)(1), the Court decides the matter on the pleadings submitted and without oral argument. See S.D. Cal. Civ. Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.

Background Facts

The following facts are either stipulated, supported by affidavit or deposition testimony, uncontroverted, or viewed in the light most favorable to Plaintiff, the non-moving party. The Court excludes factual assertions that are immaterial or that are conclusions of law rather than statements of fact.

Carlos Rosado ("Rosado") was an inmate committed to the custody of the California Department of Corrections ("CDC"), and the events giving rise to the causes of action herein occurred when Rosado was housed at Centinela State Prison ("Centinela"). (See Compl. at ¶ 6.) Rosado was received at Centinela on March 20, 2000. (See Ex. D, C. Pickett Decl. at ¶ 6.) At that time, Defendant Charles Pickett, D.O. ("C.Pickett") was the Chief Medical Officer and Health Care Manager at Centinela, where his duties consisted of coordinating health care needs for the inmates, including reviewing requests for various consultants to provide medical care to Rosado. (See Ex. D, C. Pickett Decl. at ¶¶ 5, 8.) Defendant John Parsons, M.D. ("Parsons") was the Chief Physician at Centinela and provided regular medical care and treatment to Rosado from September 2000 to August 2004. (See Ex. F, Parsons Decl. at ¶¶ 3, 5, 10, 15, 23, 29, 46, 85.) Defendant D. Thornton, M.D. ("Thornton") was a Staff Physician at Centinela and provided medical care and treatment to Rosado on several occasions. (See Ex. G, Thornton Decl. at ¶¶ 4, 6, 8.) From July 1, 2000 to the present, Defendant Ragheb Sawires, M.D. ("Sawires") has been the Utilization Management Physician Consultant to the CDC and Rehabilitation Health Care Services Committee. (See Ex. H, Sawires Decl. at ¶ 3.) As a member of the Health Care Review Committee ("HCRC"), which was responsible for approving transplant evaluation requests, he reviewed documents provided by Parsons regarding Rosado's request for liver transplant evaluation. (See id. at ¶¶ 4, 7.) Plaintiff also alleges that Defendant William Smith, M.D. had responsibility for the medical care of Rosado. (See Compl. at ¶ 12.) However, on July 10, 2006, Defendants filed a Statement of Fact of Death of Defendant Smith, and to date, Plaintiff has not filed a motion to substitute. [Doc. No. 163.]

Defendant Edward Alameida, Jr. ("Alameida") was the Director of CDC from June 2002 to January 5, 2004 and did not have input into or review medical decisions regarding inmates in the custody of the CDC. (See Ex. A, Alameida Decl. at ¶¶ 1-2.) Defendant George Giurbino ("Giurbino") was the Warden at Centinela and did not participate in the medical care and treatment of Rosado. (See Ex. I, Giurbino Decl. at ¶ 4.) From December 2001 to February 2003, Defendant Michael Pickett ("M.Pickett") was the Deputy Director, Health Care Services Division ("HCSD"), of the CDC and was not involved in the evaluation of Rosado's transplant request. (See Ex. B, M. Pickett Decl. at ¶¶ 1, 7.) From December 1997 through October 26, 2001, Defendant Susan Steinberg, M.D. ("Steinberg") was the Deputy Director of HCSD and from October 26, 2001, to February 28, 2002, she was the Chief Medical Officer of Medical/Dental. (See Ex. C, Steinberg Decl. at ¶¶ 4-5.)

Soon after his transfer to Centinela, Rosado began complaining of abdominal pain and on June 7, 2000, Rosado informed physicians at Centinela that he had a "bad liver." (See Compl. ¶ 17; Pl.'s Ex. B at AGO-107.) On August 16, 2000, Rosado was diagnosed as having "advanced liver disease," likely arising from Hepatitis C and a past drinking problem. (See Pl.'s Ex. B at AGO-261, 138.) On September 7, 2000, Centinela medical records indicate Rosado received treatment at the Centinela Gastroenterology Clinic by Mostafa Hamdy, M.D. ("Hamdy"), who confirmed that Rosado had "chronic Hepatitis C[and] liver cirrhosis." (See Pl.'s Ex. 3 at AGO-098.) Rosado received several other examinations over the course of the subsequent few months, including a urology consultation, sonogram, endoscopy, esophagogastroduodenoscopy with biopsy, CT scan, physicals, and numerous blood tests. (See, e.g., Pl.'s Ex. B at AGO-093, 221-22, 244 45, 282, 299-300, 372, 383-84.) Rosado's condition was labeled as "end-stage liver disease" on or about November 15, 2000. (See Pl.'s Ex. B at AGO-027, 091, 093.)

Rosado's treating physicians concluded that he needed a liver transplant in order to survive. On August 16, 2001, Hamdy noted in Rosado's medical records that Rosado had "about a 50% chance of dying in the next 5 years" and that "advanced liver cirrhosis is non-curable without a liver transplant." (Pl.'s Ex. B at AGO-1587, 005) (Parsons noted that Rosaclo's condition, advanced liver cirrhosis, would prove fatal.) After his physicians informed Rosado about his condition, he began requesting a transplant. (See, e.g., Pl.'s Ex. B at AGO-065.) Plaintiff alleges that his repeated requests were consistently rejected by Pickett, usually through Parsons, because Pickett was of the view that inmates do not qualify for transplants. (See Pl.'s Opp'n at 4.)

On January 28, 2002, Parsons noted in Rosado's medical records that he should be evaluated by the Utilization Review Committee at HCSD as a potential candidate for a liver transplant. (See Ex. F, Parsons Decl. at ¶ 27; Pl.'s Ex. B at AGO-518.) On July 16, 2002, Parsons wrote to C. Pickett and requested permission to forward Rosado's transplant request to HCRC. (See Pl.'s Ex. F, Sawires Dep., Ex. 2 at 2.) C. Pickett approved Parsons' request to forward the July 16th transplant request memorandum to the Utilization Management Review Committee at HCSD. (See Ex. F, Parsons Decl. at ¶ 31.) However, Plaintiff alleges that the documents were not forwarded to HCSD at that time, and that, upon discovering this, Parsons himself forwarded the documents several months later. (See id.; Pl.'s Ex. F, Sawires Dep., Ex. 2 at 1.) HCRC approved the request on January 28, 2003. (See Ex. H, Sawires Decl. at ¶ 8; Ex. F, Parsons Decl. at ¶ 44.) On April 4, 2003, Rosado was evaluated for a liver transplant at UCLA Medical Center by Sammy Saab, M.D. ("Saab"). (See Ex. F, Parsons Decl. at 1150; Pl.'s Ex. B at AGO-1611-12.) In a letter to Parsons dated September 29, 2003, Saab wrote that UCLA did not have the facilities to care for an inmate at the moment and that Parsons should consider an alternate liver transplant center that might have the proper security. (Pl.'s Ex. B at AGO-1647.)

On January 13, 2004, Rosado was evaluated at UCSF for liver transplant candidacy. (See Parsons Decl. at ¶ 75; Pl.'s Ex. B at AGO-1652.) Medical reports prepared by the UCSF transplant doctors indicate that toxicology screens performed on August 16, 2002, September 27, 2002, and January 12, 2004 were each positive for THC. (See Pl.'s Ex. B at AGO-1654). In a letter to Parsons dated January 13, 2004, the UCSF doctors agreed by consensus to defer consideration of Rosado for listing at this institution. (Id.) The UCSF doctor recommended that Rosado discontinue use of illicit drugs, including THC, and stated that Nathan M. Bass, M.D. ("Bass"), Medical Director of Liver Transplantation at UCSF, would send a separate letter to the medical officer in charge at Centinela with regard to the "specific request from this institution to determine whether an incarcerated individual ... could potentially become a candidate for liver transplantation at UCSF." (Id. at 1654-55.)

On September 3, 2004, Rosado moved for a preliminary injunction ordering Defendants to take specific and tangible steps toward getting Rosado a fair transplant evaluation. [Doc. No. 57.] On December 8, 2004, this Court granted the motion in part, and ordered Defendants to contact ten transplant centers in California to determine if they would accept prisoners, and arrange for Rosado to receive transplant evaluations at two facilities. (See Order Granting in Part Pl.'s Mot. for Prelim. Inj. at 13.) Twenty-two days later, on December 30, 2004, C. Pickett instructed Centinela Utilization Management Nurse, Nirvana Esqueda ("Esqueda"), to send letters to ten California medical centers via certified mail requesting that each medical center respond in writing by January 7, 2005 as to whether each institution would consider Rosado as a liver transplant candidate. (See Ex. D, C. Pickett Decl. at ¶ 25.) Esqueda continued to contact the ten medical centers until March 25, 2005, when Rosado passed away at Corcoran State Prison Hospital. (Id. at ¶ 26.)

In her Complaint, Plaintiff alleges that Defendants were deliberately indifferent to Rosado's serious medical needs in violation of the Eighth Amendment. (See Compl. at 2.) Plaintiff also alleges that Defendants were negligent in administering Rosado's medical care and are also liable for negligent infliction of emotional distress. (See id.) Before the Court is Defendants' Motion for Summary Judgment as to Plaintiffs' Eighth Amendment...