Rosado v. Alameida

• Decision Date: 08 December 2004
• Docket Number: No. 03 CV 1110 J(LSP).,03 CV 1110 J(LSP).
• Citation: Rosado v. Alameida, 349 F.Supp.2d 1340 (S.D. Cal. 2004)
• Court: U.S. District Court — Southern District of California
• Parties: Carlos ROSADO, Plaintiff, v. Edward ALAMEIDA, Jr., et al., Defendants.

349 F.Supp.2d 1340

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

No. 03 CV 1110 J(LSP).

United States District Court, S.D. California.

December 8, 2004.

COPYRIGHT MATERIAL OMITTED

Aaron P. Arnzen, Byron Y. Yafuso, Cooley Godward, LLP, San Diego, CA, for Plaintiff.

Attorney General, State of California Office of the Attorney General, San Diego, CA, for Defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION IN PART AND DENYING IN PART

JONES, District Judge.

Before the Court is PlaintiffCarlos Rosado's ("Plaintiff")September 3, 2004 Motion for Preliminary Injunction.On July 23, 2003, Plaintiff, an inmate currently incarcerated at Centinela State Prison("CSP") filed a civil rights action under 42 U.S.C. § 1983 alleging that various CSP and California Department of Corrections("CDC") officials violated his Eighth and Fourteenth Amendment rights by failing to place his name on a liver transplant list and provide other necessary care for his life-threatening liver condition.(Com pl.¶¶ 50-97.)By order dated September 3, 2004, this Court granted in part Plaintiff's ex parte Application for Temporary Restraining Order("TRO"), requiring Defendants to provide Plaintiff with immediate medical attention.[Doc. No. 54.]Subsequently the parties stipulated to the TRO's conversion to a preliminary injunction.Plaintiff now requests that the Court issue another preliminary injunction ordering DefendantEdward Alameida, Jr. et al. ("Defendants") to ensure that Plaintiff receives evaluations at all liver transplant centers in California.Defendants oppose.An evidentiary hearing was held on October 4, 2004 at 10:30 a.m., at which time the Court requested supplemental briefing on various issues.On October 8, 2004, Plaintiff filed a First Amended Complaint ("FAC"), removing certain Defendants and adding CDC as a Defendant.[Doc. No. 82.]

All parties are represented by counsel.The Court has determined the issues presented herein are appropriate for decision without oral argument.SeeCiv. L.R. 7.1.d.1.For the reasons addressed below, this CourtGRANTS the preliminary injunction IN PART.

Background

The relevant facts as alleged by the parties are numerous and involve many dates.Defendants have lodged more than 1,800 pages of Plaintiff's Department of Corrections medical files.What follows is a general overview of the case's factual and procedural background.

Plaintiff was received at CSP in March 2000.(Opp'nat 2;Ex A, AGO927, 525-526.)A couple of months later, he began to experience severe abdominal pain.(Compl.¶ 18.)Soon thereafter, Plaintiff was diagnosed with hepatitis C and cirrhosis.(Pl.'s Mem. of P. & A.at 2, 4)On September 7, 2000, CSP Medical Records show, Plaintiff received treatment at the CSP Gastroenterology Clinic.(Opp'nat 2, Ex A, AGO-98)

The parties disagree on the events occurring between September 2000 and January 2001.Plaintiff claims that he made several requests for treatment and all were ignored by Defendants.(Compl.¶ 23.)Meanwhile, Defendants counter that Plaintiff repeatedly refused to be admitted to the CSP infirmary and refused to be transferred to the Corcoran correctional facility.(Opp'nat 3; Ex A, AGO-88.)Seeking to be transferred to an outside medical facility and placed on a liver transplant list, Plaintiff appealed CSP's denial to the third and final level.(Opp'nat 3; Ex A, AGO-29-30, 42-43, 88.)By February 2003, Plaintiff had achieved administrative exhaustion.(Pl.'s Mem. of P. & A. Ex.A)

Two months later, on April 4, 2003, CSP approved and Plaintiff received a partial transplant evaluation by Dr. Sammy Saab at the University of California at Los Angeles ("UCLA") School of Medicine.(Pl.'s Mem. of P. & A.at 5.)Dr. Saab reported that Dr. John Parsons at CSP had "done a very good job in terms of screening and providing [Plaintiff] medical care" and agreed to discuss Plaintiff's evaluation with the UCLA transplant committee.(Opp'nat 4;Ex. A, AGO-644-646) Ultimately, Plaintiff was not placed on the UCLA transplant list, because the institution had concerns about security issues associated with treating an inmate.(Arnzen'sDecl. Ex. 10.)

On June 2, 2003, Plaintiff, proceeding pro se, filed his Complaint with this Court.The Complaint includes the following claims: (1) that denying Plaintiff medical care violates his Eighth Amendment rights; (2) due process and liberty violation under the 14th Amendment;(3) negligence; (4) intentional and negligent infliction of emotional distress; and (5) torts in essence.Cooley Godward was approved as pro bono counsel for Plaintiff on July 7, 2004.[Doc. No. 42.]

Plaintiff received a second transplant evaluation at the University of California at San Francisco ("UCSF") Medical Center on January 13, 2004, by Dr. Raphael Merriman, a hepatologist.(Replyat 4.)While there, Plaintiff's urine tested positive for marijuana.(Id.)After Plaintiff's case was discussed by the liver transplant committee, there was consensus that consideration of Plaintiff's transplant would be deferred.(Opp'nat 6.)Specifically, the committee noted that Plaintiff had not been entirely compliant with past physician recommendations to accept transfer to alternate medical facilities.(Opp'nEx. A, AGO-1655.)Additionally, Dr. Merriman recommended that Plaintiff participate in a local rehabilitation program, cease smoking cigarettes, and discontinue his use of marijuana, alcohol and other substances.(Id. at AGO-1655-56.)Plaintiff argues that his rejection was at least in part motivated by security concerns, which Defendants did nothing to allay.(Pl's Mem. of P. & A.at 6.)

Since the visit to UCSF, Plaintiff has not been evaluated again for a transplant.However, Defendants have taken steps to arrange for a third evaluation at University of California at San Diego ("UCSD").Plaintiff now seeks a preliminary injunction including the following instructions:

(1) Centinela staff physician will examine Plaintiff at least twice per month;

(2) treatment recommendations of staff physicians will be carried out unless unreasonable, unnecessary or refused by Plaintiff;

(3) all medications and dietary supplements prescribed by Plaintiff's treating physicians will be promptly and reliably provided to Plaintiff(4)Plaintiff receives complete evaluations at all California liver transplant centers, transportation to and from these centers, and illicit substance screening;

(5)Defendants will work with each liver transplant center to develop a security plan and provide security arrangements; and

(6) in accordance with the evaluations, Plaintiff will be placed on the liver transplant at those facilities, unless denied placement.

Legal Standard

The Ninth Circuit recognizes two tests for determining whether a district court should grant a preliminary injunction.Under the traditional standard, a plaintiff must show: (1) a strong likelihood of success on the merits; (2) a possibility of irreparable injury should the injunction not be granted; (3) that the balance of hardships tips in his or her favor; and in some cases(4) that an injunction advances the public interest.SeeSave Our Sonoran, Inc. v. Flowers,381 F.3d 905, 911-12(2004)(citingJohnson v. Cal. State Bd. of Accountancy,72 F.3d 1427, 1430(9th Cir.1995)).Alternatively, the plaintiff may show "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor."Id.

It is well established that the two formulations both operate as a sliding scale, whereby a stronger showing of irreparable harm risk can compensate for a weaker likelihood of success.SeeBaby Tam & Co., Inc. v. City of Las Vegas,154 F.3d 1097, 1100(9th Cir.1998).Moreover, they are not considered separate tests; rather they are viewed as "outer reaches of a single continuum."Id.Under either test, the moving party bears the burden of persuasion.Mattel, Inc. v. Greiner & Hausser GmbH,354 F.3d 857, 869(2003).

Discussion

A.Likelihood of Success on the Merits

The Eighth Amendment applies to medical treatment in prison.Estelle v. Gamble,429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251(1976)(holding that prison officials have a constitutional duty to provide prisoners with necessary medical treatment).However, the Eighth Amendment does not protect prisoners from medical malpractice.SeeMcGuckin v. Smith,974 F.2d 1050, 1059-60(9th Cir.1992)(overruled on other grounds byWMX Tech. v. Miller,104 F.3d 1133(9th Cir.1997)).Nor does the mere failure to provide medical care give rise to a constitutional violation.To recover for denial of medical treatment, the prisoner must prove: (1) the prisoner suffered from a serious medical condition; and (2) the prison officials were "deliberately indifferent" to the prisoner's medical needs.Wilson v. Seiter,501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271(1991).In other words, the relevant inquiry involves both an objective and a subjective component.In the present matter, it is undisputed that Plaintiff's medical condition is serious.Therefore, this Court's analysis proceeds on the "deliberate indifference" factor.

"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 deliberate indifference claim."Franklin v. Oregon,662 F.2d 1337, 1344(9th Cir.1981).Similarly, a showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference.Sanchez v. Vild,891 F.2d 240, 242(9th Cir.1989).In order to prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of treatment the doctors chose was medically unacceptable in light of the circumstances and...