Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Doyle Burns, ) ) ) ) ) ) ) ) ) ) No. CV 03-2273-PHX-JWS (MS) ORDER

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Plaintiff,
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vs.
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Charles L. Ryan, et al.,
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Defendants.
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Plaintiff Doyle Burns, proceeding pro se,1 filed a civil rights action alleging deliberate indifference to his medical needs pursuant to 42 U.S.C. § 1983. (Doc. # 37). Now pending before this Court is Defendants' motion for summary judgment. (Doc. #70). This Court will grant the Defendants' motion for summary judgment and dismiss Plaintiff's action. A. Amended Complaint. Plaintiff filed an Amended Complaint naming as Defendants: (1) Charles Ryan, acting director of the Lewis-Buckley facility, an Arizona Prison Complex; (2) Dr. Jim Taylor; (3) Dr. Don Sloan; (4) Dr. Bruce Kanter; and (5) Dr. John Lockhart, physicians employed by the Arizona Department of Corrections.2 In his Amended Complaint, Plaintiff alleged that Defendants were deliberately indifferent to his medical needs, pursuant to 42 U.S.C. § 1983,

Plaintiff's Amended Complaint was filed by counsel, who subsequently withdrew from the case. (Docs. ##37, 46-47) Plaintiff also named as a Defendant was the Arizona Department of Corrections (ADOC). (Doc. #37). However, because the state law claims against the ADOC were dismissed pursuant to a motion for partial summary judgment, ADOC is no longer a party to the action. (Docs. ##40, 52). Document 98 Filed 03/29/2006 Page 1 of 10
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and conspired to deprive him of his civil rights, pursuant to 42 U.S.C. § 1985.3 (Doc. # 37). In his Amended Complaint, filed October 2004, Plaintiff alleged the following facts. In 2000, Defendant Kanter prescribed Benedryl, which Plaintiff took on a regular basis until January 1, 2001, when Defendant Lockhart cancelled it. (Doc. #37 at ¶¶ 16-18). Defendant Lockhart also informed Plaintiff that Benedryl should not have been prescribed in conjunction with Albuterol due to side effects. (Id. ¶ 18). Plaintiff was next seen in December 2001, when he submitted a health needs request due to severe bladder pains and painful urination. (Id. ¶ 19). Two weeks later, Defendant Kanter performed a prostate examination and diagnosed Plaintiff with an enlarged prostate and prescribed medication for pain. (Id. ¶ 20). In January 2002, Plaintiff again submitted a health needs request complaining about painful urination and severe bladder pain. (Id. ¶ 21). Approximately one week later, Defendant Lockhart performed a prostate examination, informed Plaintiff that there was no sign of prostate cancer, discontinued the medication prescribed by Defendant Kanter, and gave Plaintiff another prescription. (Id. ¶ 22). Plaintiff submitted another health needs request in February 2002, asking for the results of blood tests taken earlier that month. (Id. ¶ 23). In March 2002, Plaintiff submitted an emergency health needs request complaining of severe bladder pain and painful urination. (Id. ¶ 24). Plaintiff was examined by Dr. Whitney, who discontinued the medication prescribed by Defendant Lockhart, issued a new prescription, and scheduled a CAT scan. (Id. ¶ 25). Later that month, Plaintiff underwent an ultrasound and CAT scan, but was not immediately informed of the results. (Id. ¶ 26). Subsequently, Dr. Williams informed Plaintiff that the tests "showed high levels of prostate cancer" and he recommended surgery for the urination problems and "follow-up treatment for prostate cancer." (Id. ¶ 27). Plaintiff did not receive further treatment until,

Plaintiff also raised state law claims of medical malpractice and intentional infliction of emotional harm. (Doc. #37). These claims were dismissed pursuant to a motion for partial summary judgment. (Docs. ## 40, 52). -2Document 98 Filed 03/29/2006 Page 2 of 10

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approximately eight months later in March 2003, he underwent surgery to relieve the painful urination and "a biopsy was taken to determine the levels of cancer." (Id. ¶ 29). Plaintiff alleged that he has received no further medical treatment. (Id. ¶ 30). Plaintiff alleged that Defendants were deliberately indifferent to his medical needs because, in March 2003, a biopsy reveled that Plaintiff was suffering from a "high level of cancer," which Defendants knew or should have known. (Id. ¶¶ 43-45). Despite that knowledge, Defendants failed to provide adequate medical treatment, in violation of 42 U.S.C. § 1983. (Id. ¶ 46). Plaintiff also alleged that Defendants conspired to deprive him of his civil rights, in violation of 42 U.S.C. § 1985. (Id. ¶ 52). B. Motion for Summary Judgment. 1. Defendants' Motion for Summary Judgment

Defendants filed a motion for summary judgment, arguing that Plaintiff's Amended Complaint was based on his misunderstanding of his medical condition and treatment. (Doc. # 70 at 18-19). Defendants asserted that due to Plaintiff's poor recollection, the dates he set forth regarding when he was diagnosed with cancer are incorrect. (Id. at 19). Defendants argued that Plaintiff received timely and appropriate treatment, and he thus cannot demonstrate that Defendants were deliberately indifferent to serious medical needs. (Id. at 18-19). Defendants then argued that Plaintiff's § 1985 claim must fail because: (1) he failed to allege an agreement; (2) he failed to set forth each Defendant's acts which would lead Plaintiff to believe that there was a conspiracy; (3) he failed to allege that he was a member of a protected class and deprived of a legally protected right based on racial or other class-based animus; and (4) state prisoners do not constitute a protected class. (Id. at 20). Attached to the motion for summary judgment was: (1) Dr. Jerry M. Greenberg's, an expert in urology, affidavit and curriculum vitae; (2) Plaintiff's medical records; (3) a copy of Plaintiff's Amended Complaint; and (4) Plaintiff's deposition. (Doc. #71). Dr. Greenberg attested that he reviewed Plaintiff's medical file and deposition. (Id., Exh. A at ¶ 2). Dr. Greenberg opined that Defendants "neither fell below the standard of care in treating

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[Plaintiff's] urological condition, nor demonstrated deliberate indifference to his serious medical needs in the health care they provided to him." (Id. ¶ 3). Based on the medical records attached to Dr. Greenberg's affidavit, Plaintiff complained about back pain and difficulty with urinating in December 2001. (Id., Exh. 2 at 1-2). Plaintiff was seen again in January 2002 complaining about problems with urination, at which time he was diagnosed with benign prostatic hypertrophy (BPH) and his prescription for antihistamine was discontinued. (Id. at 3-4). Dr. Greenberg attested that BPH is a common problem among older men, and at times requires some form of medical or surgical treatment. (Id., Exh. A ¶ 5). Dr. Greenberg opined that BPH is not diagnostic for prostate cancer, but "bears watching for signs of cancer." (Id., Exh. A ¶ 5). According to Dr. Greenberg, "[s]ome common methods of monitoring an enlarged prostate for possible cancer are digital rectal examination, a blood test known as PSA, which detects the presence of a prostate-specific antigen which may signal the presence of cancer, and a biopsy of prostate tissue. Where treatment is indicated, it is also common to prescribe medication to shrink the prostate and thereby alleviate some symptoms associated with BPH." (Id., Exh. A ¶ 5). Plaintiff's medical records indicate that in January 2002, it was recommended that Plaintiff undergo an annual prostate examination. (Id., Exh. 2 at 3-4). That same month, Plaintiff first submitted a request to see a doctor "concerning prostate cancer." (Id. at 5). Plaintiff was then seen at least once a month for the following several months complaining about prostate problems, and expressing a concern about prostate cancer. (Id. at 7-28). In February, Dr. Lockhart informed Plaintiff that the prostate exam did not show evidence of cancer. (Id. at 9). Plaintiff was also prescribed various medications, including Prazonsin, which is used to treat BPH and to increase urinary flow. (Id. at 11). In addition, an ultrasound of the abdomen performed in May demonstrated a large cyst in the upper quadrant, which was unrelated to the prostate issues. (Id. at 18). In October 2002, Dr. William Kuo, Plaintiff's treating physician, opined that Plaintiff would benefit from a transurethal resection of the prostate (TURP) to address the urinary symptoms and a prostate biopsy. (Id. at 26). In December 2002, Dr. Kuo performed the
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TURP and biopsy, which was negative. (Id. at 29-30). However, but due to atypical cells, the biopsy was deemed "suspicious" for cancer. (Id.). At this time, Dr. Kuo sought a second opinion from Dr. David Bostwick. (Id. at 31). Dr. Bostwick opined that there was a suspicion of malignancy, but that an unequivocal diagnosis could not be rendered. (Id. at 32). A second biopsy was conducted in April 2003, at which time Plaintiff was diagnosed with cancer. (Id. at 34-37). In May 2003, Plaintiff was informed of his diagnosis and given "options of considering a radical prostatectomy versus external beam radiation versus brachytherapy." (Id. at 37). Plaintiff decided not to pursue therapy at that time, despite the fact that "watchful waiting or hormonal ablation" was not recommended. (Id.). Plaintiff's options were again discussed with him twice in May, once in June, and twice in July. (Id. at 38-48). In June, Plaintiff specifically refused to decide on a course of treatment. (Id. at 38). In July Plaintiff was advised not to wait too long before making a decision, at which time Plaintiff stated that he wished to ask additional questions of Dr. Kuo. (Id. at 46). In August, Plaintiff decided to undergo seed implantation, or brachytherapy. (Id. at 49-50). Plaintiff was referred to an oncologist for consultation, and in February 2004 it was determined that he was not a seed candidate. (Id. at 51-55). In particular, Plaintiff was advised that due to a large surgical defect from the TURP, it was impossible to place the seeds accurately and to determine the placement of the seeds. (Id. at 55). Plaintiff informed the oncologist that he was not interested in a surgical alternative. (Id.). A total bone scan and CT scan was performed in May 2004, which demonstrated no evidence of metastatic disease. (Id. at 56). In June 2004, an abdominal sonography was performed, which was unremarkable. (Id. at 57). Later that month, Plaintiff saw another oncologist who

recommended a radical prostatectomy. (Id. at 58-59). However, Plaintiff elected to proceed with radiation, which he began in August 2004. (Id. at 60). Defendants also attached Plaintiff's deposition. Plaintiff testified that the medical records were inaccurate because they did not reflect what he told Defendants and his various physicians. (Id., Exh. C at 29). However, Plaintiff acknowledged that his Amended
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Complaint contained incorrect dates. (Id. at 41). Plaintiff also stated that he only considered the radiation "treatment." (Id. at 50). Plaintiff appeared to be confused as to when he was informed he had cancer. Plaintiff testified that he was first told he had cancer after the second biopsy. (Id. at 63-64, 69-70, 78-79). Plaintiff was unaware that Dr. Kuo performed the first biopsy when he performed the TURP. (Id. at 78-79). Plaintiff then testified that between the TURP and immediately before the second biopsy, Dr. Kuo stated that according to his PSA, Plaintiff had high levels of cancer. (Id. at 82). Plaintiff also denied being undecided about the treatment he wished to pursue. (Id. at 96-97). Plaintiff testified that Dr. Kuo was strongly recommending prostate removal while Defendant Lockhart was recommending seed implantation. (Id. at 104-05). 2. Plaintiff's Opposition

Plaintiff filed an opposition to Defendants' motion for summary judgment, arguing that the medication he received prior to the diagnosis caused him to suffer pain and adverse reactions. (Doc. #91 at 6). Plaintiff argues that the adverse reactions caused urinary retention and an enlarged prostate gland, which resulted in him developing cancer. (Id. at 8). Plaintiff maintains that despite the treatment, he continues to suffer pain and urinary retention. (Id. at 9). Further, he was not a candidate for seed implantation because he was misled into undergoing the TURP, which did not alleviate the pain in his lower back, hips, and urinary tract. (Id. at 12-13). Plaintiff alleges that Defendants misled him and refused to discuss his enlarged prostate gland, cancer, or treatment options. (Id. at 13). As a result, he had to request information from the National Cancer Institution. (Id.). Plaintiff also argues that he has a cyst which is causing pain and which Defendants refuse to treat until the prostate cancer is resolved. (Id. at 15). Plaintiff maintains that the delay in treatment was not the result of his indecision, but Defendants' attempt to reduce the enlarged prostate. (Id. at 22). Attached to his response was a memorandum from Dr. Stan Ashbury, who was apparently hired by Plaintiff's counsel in order to determine if Plaintiff had a viable medical malpractice claim. (Id., Exh.) Dr. Ashbury stated that Plaintiff did not have such a claim
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because, inter alia, prostate cancer "moves very slow and treatment (radiation) could have waited until 2006 without a change in the outcome," in particular because the cancer has not spread outside the prostate (Id.). Dr. Ashbury noted that Plaintiff refused to undergo surgery and delayed his decision as to treatment options. (Id.). Dr. Ashbury informed Plaintiff that the delay did not impact his prognosis. (Id.). Defendants filed a reply, reasserting their prior arguments. (Doc. #92). C. Applicable Law and Analysis. "Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. 1. Deliberate Indifference to Medical Needs

"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "To demonstrate that a prison official was deliberately indifferent to an inmate's serious . . . health needs, the prisoner must show that `the official [knew] of and disregard[ed] an excessive risk to inmate health.'" Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citing to Farmer v. Brennan, 511 U.S. 825, 838 (1994)).
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"Further, the deliberate
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indifference must be both `purposeful,' and `substantial' in nature.'" Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 525 (9th Cir. 1999) (internal citations omitted). "Prison officials are deliberately indifferent to a prisoner' serious medical needs when they `deny, delay, or intentionally interfere with medical treatment. . . . Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.'" Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (citations omitted). Further, "a mere `difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citations omitted). Defendants are entitled to summary judgment as to Plaintiff's allegation of deliberate indifference to his medical needs. According to the summary judgment evidence, Plaintiff was treated for asthma and prescribed Benedryl. Plaintiff then complained about problems with urination and was diagnosed with BPH. At that time, he was removed from Benedryl and informed that he should have never received that prescription. Plaintiff was continually monitored due to his concern that he had prostate cancer and severe pain in his back and during urination. Plaintiff was informed that he did not have prostate cancer, and was prescribed medication for BPH. Plaintiff saw some relief, but due to continued problems, in December 2002, he underwent a TURP and biopsy. Because atypical cells and a suspicion of cancer were found in the first biopsy, a second biopsy was performed in April 2003. Plaintiff maintains that immediately before that biopsy he was informed he had prostate cancer. The medical records indicate that Plaintiff was not informed that he had cancer until May 2003, at which time he was advised of his options. Plaintiff refused to opt into a treatment regiment at that time, and his options were again discussed with him, without his prompting, several times over the next two months. The medical records indicate that Plaintiff decided to undergo seed implantation in August 2004; Plaintiff maintains he made that decision earlier. Plaintiff underwent a consultation in December, and in February 2004, it was determined that he was not a candidate for seed implantation. Plaintiff again delayed in opting into a treatment regime, but began radiation in August 2004. Plaintiff's own evidence, however, demonstrates that
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the delay did not harm him because prostate cancer is slow moving and the cancer had not moved into other parts of the body. Accordingly, Plaintiff's prognosis was not impacted by any delay. There is a disputed fact as to when Plaintiff was informed that he had cancer. There is also a dispute as to how much of the delay in treatment was caused by Plaintiff's reticence in choosing a treatment option or by the delay in scheduling Plaintiff appointments. However, these disputes are not material. It is undisputed that Plaintiff was diagnosed with cancer only after the second biopsy. Although Dr. Kuo may have informed Plaintiff that he had cancer prior to this biopsy, this diagnosis would have been based on Dr. Kuo's belief unsupported by medical tests. Consequently, Plaintiff could not have undergone treatment prior to the diagnosis. As to the delay in treatment thereafter, it is undisputed that Plaintiff did not immediately choose a treatment option and he had to undergo consultation prior to undergoing seed implantation. Further, the fact that Plaintiff was not a candidate for seed implantation was unknown to Defendants prior to the consultation, and thus the fact that the treatment option ended up being unavailable did not demonstrate that they were deliberately indifferent for advising him as to that option. Further, the fact that he was not a candidate as a result of the TURP was not the result of deliberate indifference to his medical needs, and at most may have represented malpractice or negligence. The record also shows that Plaintiff was seen by physicians on a regular basis for consultation, monitoring, and adjusting of prescription medication in an attempt to treat Plaintiff's enlarged prostate. Moreover, Plaintiff's own evidence from Dr. Ashbury demonstrates that any delay in treatment did not result in a different prognosis. Finally, Plaintiff's allegation that Defendants "caused" the cancer by prescribing him Benedryl is unsupported. In sum, based on the evidence, Plaintiff was treated for an enlarged prostate and when he was diagnosed with prostate cancer, he received frequent treatment. Although the treatment may not have been the type Plaintiff desired, this disagreement in treatment does not result in deliberate indifference to his medical needs. See Toguchi, 391 F.3d at 1058.
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Accordingly, based on the summary judgment evidence, there is no genuine issue as to any material fact and Defendants are entitled to a judgment as a matter of law as to Plaintiff's claim that they were deliberately indifferent to his medical needs. 2. Conspiracy

"Section 1985 creates a civil action for damages caused by two or more persons who `conspire . . . for the purpose of depriving' the injured person of `the equal protection of the laws, or of equal privileges and immunities under the laws' and take or cause to be taken `any act in furtherance of the object of such conspiracy.'" Thorton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). "`[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.'" Id. Because Plaintiff cannot demonstrate that Defendants were deliberately indifferent to his medical needs, he also cannot demonstrate that Defendants conspired against him based on the same allegations. Accordingly, Defendants are entitled to summary judgment as to Plaintiff's § 1985 claim. IT IS THEREFORE ORDERED that: (1) The Defendants' motion for summary judgment (Doc. #70) is granted. (2) Plaintiff's action is dismissed with prejudice.
(3) The Clerk of Court is directed to enter judgment in favor of the Defendants. DATED this 23rd day of March 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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