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

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WO JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Felipe J. Martinez, Plaintiff, vs. James W. Baird, et al., Defendants.

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No. CV 03-1729-PHX-RCB (LOA) ORDER

Plaintiff Felipe J. Martinez, an inmate in the custody of the Arizona Department of Corrections (ADC), filed this civil rights action pursuant to 42 U.S.C. § 1983 against the following Defendants: (1) James W. Baird, M.D., who is employed by ADC as the Medical Program Manager; (2) Robert D. Jones, M.D., Deputy Director of ADC Health Services from August 2001 to December 20031; (3) Ronolfo Macabuhay, M.D., an ADC physician, who cares for inmates and has been the Key Contact Physician from 2003 to the present; and (4) Wade Seirs, who was a Medical Investigator for ADC from April 2003 to August 2003. Before the Court are the parties' cross-motions for summary judgment and Plaintiff's unopposed motion to strike the affidavit of Zachary Johnson, which Plaintiff filed in support

Defendants represent that Dr. Jones was on active military duty from July 2002 to January 2003 (Doc. #82 at 2).
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of his motion as exhibit 472 (Doc. ##82, 104, 106). The Court will grant Plaintiff's motion to strike Johnson's affidavit to the extent that the Court will disregard the affidavit, but will otherwise deny the motion (Doc. #106). The Court will grant Defendants' summary judgment motion, except as to Dr. Macabuhay regarding Count I, and deny Plaintiff's Motion for Summary Judgment. I. Background The following facts, except as otherwise noted, are undisputed. In May 1998, Plaintiff was diagnosed with Hepatitis C Virus (HCV). HCV is a viral infection transmitted through exposure to blood or fluids (Defs.' Statement of Facts (DSOF) ¶14; Pl.'s Statement of Disputed Facts (PSDF) ¶ 1). HCV progresses slowly with slightly less than 20% of infected individuals developing cirrhosis within 10-30 years (DSOF ¶ 18; PSDF ¶ 7). HCV is sometimes treated by administering Rebetron (a combination of Interferon and Ribavirin), which can cause serious side effects (DSOF ¶ 19; PSDF ¶ 9). ADC does not exclude inmates with a past history of illicit IV drug use from eligibility for Rebetron treatment (DSOF ¶ 83; PSDF ¶ 100). When he was diagnosed in 1998, Plaintiff's liver function or ALT enzymes measured 86; normal ALT enzyme levels are 0-40 (DSOF ¶¶ 28, 29; Pl's Statement of Undisputed Facts (PSUF) ¶ 2). By January 1999, Plaintiff's ALT was 105 (DSOF ¶ 33; PSDF ¶ 19; PSUF ¶ 4). In February 1999, Plaintiff requested Rebetron treatment for his HCV3 (PSUD ¶ 5, ex. 6). In March 1999, Plaintiff's ALT was 65 (DSOF ¶ 39; PSDF ¶ 22). In June 1999, his ALT was 119 (DSOF ¶ 45; PSUF ¶ 12). On November 19, 1999, Plaintiff was transferred from ASPCWinslow to ASPC-Lewis in Buckeye, Arizona (DSOF ¶ 47; PSDF ¶ 28).

Plaintiff also contends that Defendants failed to file a separate statement of facts in opposition his summary judgment motion (Pl.'s Reply in Support of Mot. for Summ. J., Doc. #120). However, Defendants filed a separate Statement of Facts with their summary judgment motion and refer to these facts in their opposition motion (Doc. #123). This is sufficient to comply with Rule 56.1. Defendants dispute Plaintiff's characterization of this request as "formal" (Defs.' Objections (DO) at 8, Doc. #111).
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In July 2002, Plaintiff submitted a health needs request (HNR) asking to begin Rebetron treatment (DSOF ¶ 48; PSDF ¶ 32). In August 2002, Dr. Macabuhay examined Plaintiff and Plaintiff told him that he wished to be treated with Rebetron (DSOF ¶ 49, ex. 16; PSDF ¶ 33 (in part)). Plaintiff also informed Dr. Macabuhay that he had completed the protocol for treatment with Rebetron, but had not been started on it (Id.). At that time, Plaintiff's ALT was 109 (DSOF ¶ 50; PDSF ¶ 34; PSUF ¶ 20). Lab results dated August 28, 2002 reflected that Plaintiff's HCV viral load, the amount of virus in the blood, was 789,000 (PSUF ¶ 21, Ex. 19). Dr. Hurowitz, another ADC physician, noted in September 2002, that Plaintiff appeared to meet the criteria for Rebetron and ordered Plaintiff to be scheduled for a visit (DSOF ¶ 51; PSDF ¶ 35; PSUF ¶ 21). In October 2002, Plaintiff submitted an HNR asking why he had not had blood tests performed in almost two months when he was undergoing evaluation for Rebetron treatment. (DSOF ¶ 52; PSDF ¶ 36; PSUD ¶ 22). A response dated October 24, 2002, stated that blood tests were performed every three months and his last test had been performed on August 20, 2002 (Id.). Also, on October 24, 2002, Plaintiff was examined by Dr. Macabuhay (DSOF ¶ 53, Ex. 19). The next day, Dr. Macabuhay submitted a Consultation Request to the Central Office for ultrasound and genotyping of Plaintiff, stating that Plaintiff "meets criteria for Rx [treatment] per protocol, persistently elevated LFT's, HCV viral load 785,000" (Id.). On October 31, 2002, Plaintiff's HCV viral load was 3,200,000 (PSUF ¶ 26, Ex. 24). On January 7, 2003, Plaintiff submitted an HNR asking for follow-up regarding his HCV (Pl.'s Mot. For Summ. J. (PMSJ), Ex. 25). The same day, he filed an inmate letter seeking an informal resolution of his request for Rebetron treatment, explaining that he had not been examined for more than six months (PMSJ, Ex. 26).4 Corrections Officer III Wood responded the same day telling Plaintiff that he would have to prove that he had contacted Medical and that Wood wanted to see Medical's response before answering the request for informal resolution (Id.). Also in January 2003, Dr. Macabuhay again examined Plaintiff and
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In fact, the record reflects that Plaintiff had been examined approximately three months before.
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noted that he was waiting for approval from Central Office for a drug screen and genotyping (DSOF ¶ 55, Ex. 21; PSDF ¶ 45 (in part)). He further noted that Plaintiff reported last using illicit IV drugs about a year before, i.e., January 2002, and that Plaintiff had completed a drug awareness program (DSOF ¶ 55, Ex. 21). On April 11, 2003, Plaintiff submitted another HNR stating that he had been told in January that paperwork authorizing Rebetron treatment had been sent to the Central Office for approval (PMSJ, Ex. 28). Plaintiff asked to be seen and informed of the status regarding Rebetron treatment (Id.). On April 17, 2003, Plaintiff submitted another inmate letter seeking informal resolution of the delay in obtaining approval for Rebetron treatment (PSUF ¶ 32, Ex. 29). On May 2, 2003, Plaintiff received a response to his inmate letter informing him that his medical records had been reviewed by the health care provider, that a referral for genotyping had been submitted to the Central Office where it was pending decision, and that pursuant to ADC guidelines for HCV treatment, Plaintiff would have blood drawn after genotyping was approved by the Central Office (PSUF ¶ 32, Ex. 29). On May 9, 2003, Plaintiff filed an inmate grievance regarding the four-month delay in resolution of the referral to the Central Office and again asked to be approved for Rebetron treatment (PSUF ¶ 33, Ex. 30). The response to the grievance, dated May 20, 2003, stated that Plaintiff's medical records had been reviewed and that after genotyping, documents would be submitted to Central Office for consideration of the treatment (Id.). On May 20, 2003, lab tests were ordered for genotyping and blood screens of Plaintiff (DSOF ¶ 56; PSDF ¶¶ 47, 48). The results of those tests, received in June 2003, reflected that Plaintiff's ALT was 66 and that he had a genotype of 1A, the most common in the United States (Id.). Meanwhile, on May 29, 2003, Plaintiff filed an inmate grievance appeal stating that he had still not received a response regarding the referral made in January 2003 (PMSJ, Exs. 31, 32). He stated that he had stopped engaging in risky behaviors, completed alcohol/substance abuse awareness courses and educated himself about HCV (Id.). The response, dated June 19, 2003, discussed important lifestyle habits, mentioned that the guidelines for treating HCV were continually being revised, and advised that ADC was
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committed to providing appropriate health care to inmates (Id.). This response was identical to a response made to another inmate's grievance concerning HCV treatment (Id.).5 On July 9, 2003, Plaintiff submitted an HNR requesting vaccination for Hepatitis A and B as part of the protocol that had not yet been ordered (PMSJ, Ex. 34). On September 2, 2003, Plaintiff submitted another HNR seeking vaccination for Hepatitis A and B (PMSJ, Ex. 35). On September 23, 2003, and October 24, 2003, Plaintiff received the first two vaccinations for Hepatitis A and B (DSOF ¶ 57; PSUD ¶ 41).6 On September 29, 2003, Plaintiff submitted another HNR asking to be seen for his HCV, stating that he had lost 30 pounds in the previous few months, suffered almost constant fatigue, sleeplessness, and occasional pain in his right abdomen (PSUF ¶ 42, Ex. 36). Dr. Macabuhay examined Plaintiff on October 1, 2003 (DSOF ¶ 60, Macabuhay Decl. ¶ 37; PMSJ, Ex. 37). Plaintiff repeated his symptoms, i.e., his weight loss, fatigue, night sweats, and abdominal pain, and again requested Rebetron treatment (Id.). Dr. Macabuhay noted in Plaintiff's medical records that he planned to complete papers for submission for Rebetron treatment (Id.). However, Dr. Macabuhay never submitted a request for Rebetron treatment for Plaintiff (PSUF ¶ 43, Exs. 45 at #4, 44 at #6). On November 3, 2003, Plaintiff submitted an inmate letter to Medical Investigator Siers asking why he was not receiving Rebetron treatment inasmuch as his medical records reflected that he met the criteria and that he was eligible under ADC protocols7 (PSDF ¶¶ 65, 66; DSOF, Exs. 5, 6 attached to Siers Affidavit (Ex. D)). Medical Investigator Sherry Mullen responded that Plaintiff's medical records had been reviewed and his questions

Defendants object to Exhibit 31 as inadmissible hearsay (DO at 5.). This objection will be overruled. Exhibit 31 is not submitted to prove the truth of the matter asserted therein. Defendants object to Plaintiff's Exhibit 41 to the extent that Plaintiff relies on a CDC report regarding vaccinations for HCV patients (DO at 11). Exhibit 41 is Dr. Jones' responses to Plaintiff's request for admissions, question 1 of which refers to a CDC report dated January 24, 2003. This objection will be overruled.
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According to Defendants, Siers Left ADC in August 2003 (Siers Decl. ¶ 1).
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answered in the June 19, 2003 response to his appeal (Id.). She further stated the issue was considered resolved and that there was no indication that Plaintiff had been recommended for Rebetron treatment (Id.). On April 5, 2004, Plaintiff received the third Hepatitis A and B vaccinations (DSOF ¶ 61). On April 14, 2004, Plaintiff's ALT was 72 (DSOF ¶ 62). On April 21, 2004, Plaintiff was examined by ADC physician, Dr. Vinluan, who noted that the HCV checklist was complete (DSOF ¶ 63, Macabuhay Decl. ¶ 40). Plaintiff repeated his desire to receive Rebetron treatment and told Dr. Vinluan that Dr. Macabuhay had submitted a request for Rebetron treatment (Id.). In October 2004, Dr. Vinluan provided HCV counseling to Plaintiff (DSOF ¶ 66). On December 22, 2004, Plaintiff filed his Second Amended Complaint in this action (Doc. #53). Plaintiff alleges that Defendants have acted with deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights and that Defendants have violated his Fifth and Fourteenth Amendment rights to equal protection by denying and delaying Rebetron treatment to him, while providing such treatment to other similarly situated inmates. II. Standard for Summary Judgment A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion, and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. If the moving party meets its initial responsibility the burden then shifts to the opposing party who must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the
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evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Finally, when considering a summary judgment motion, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. III. Count I: Deliberate Indifference to a Serious Medical Need Defendants seek summary judgment on the basis that Plaintiff does not have a serious medical need for Rebetron treatment, i.e., that his eligibility therefor is disputed among the physicians, and that even if he has a serious medical need, they have not acted with deliberate indifference to that need (Doc. #82 at 8, 11-12). Defendants further argue that even if factual disputes exist regarding this claim, they are entitled to summary judgment based on qualified immunity and that an award of damages is precluded by the Eleventh Amendment (Id. at 1617). Plaintiff argues that genuine issues of material fact preclude summary judgment on either of his claims and that Defendants' inaction and failure to provide appropriate medical care defeat any claim to qualified immunity (Doc.# 107). He also seeks summary judgment on the ground that ADC's HCV treatment policy does not conform to the CDC's recommendations and, therefore, does not conform to the community standard (Doc. #104). States are prohibited by the Eighth Amendment from incarcerating inmates in conditions that constitute cruel and unusual punishment of confinement. Pursuant to this obligation, state officials who act with deliberate indifference to an inmate's serious medical needs are liable in a § 1983 action. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment also prohibits deliberate indifference that subjects an inmate to an excessive risk of future harm. Helling v. McKinney, 509 U.S. 25, 33 (1993). "[D]eliberate indifference to a prisoner's serious medical needs is the `unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104-05. A state prison official is deliberately indifferent if he both
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knows of and disregards an excessive risk to an inmate's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, to establish deliberate indifference, a plaintiff must establish that the alleged harm was "sufficiently serious" and that the official acted with a "sufficiently culpable state of mind." Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298, 302-3 (1991)). Mere negligence or medical malpractice does not establish a sufficiently culpable state of mind. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9 th Cir. 1980). However, a prisoner does not have to prove that he was completely denied medical care in order to demonstrate deliberate indifference. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000). Deliberate indifference may be shown when an official denies, delays, or

intentionally interferes with treatment or by the way that a medical professional provided the care. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). "[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). 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 that it was chosen in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). A. Serious Medical Need To meet their burden on summary judgment, Defendants must come forward with the lack of a triable issue of fact; namely, evidence that Plaintiff either did not have a serious medical need for Rebetron treatment and/or that Defendants did not act with deliberate indifference to that need. "A `serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (quoting Estelle, 429 U.S. at 104). HCV is a chronic illness that slowly progresses to cirrhosis of the liver (Baird Decl. ¶¶ 5, 6). It is undisputed that HCV is a serious medical condition. However, the parties
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dispute whether Plaintiff has a serious medical need to receive Rebetron treatment for that condition. Defendants argue that Plaintiff does not meet the criteria for Rebetron. To support their motion, Defendants attach the declarations of Drs. Baird, Macabuhay, and Jones. Dr. Macabuhay was the treating physician; Dr. Jones was Deputy Director of ADC Health Services responsible for medical treatment guidelines; and Dr. Baird was the Medical Program Manager and developed policy and procedure relating to health care, monitoring, and clinical supervision of physician supervisors. The declarations of the physicians all follow the time line summarized above as far as the testing, counseling, and examinations that Plaintiff received concerning his HCV. All three physicians declare that in order to be considered for treatment, the patient's ALT levels must be 2 times normal on 3 occasions, but that Plaintiff's levels have not been consistently elevated. Dr. Baird specifically states that the 3 measures of 2 times the normal level must be consecutive. The three physicians also assert that this qualifying factor - 3 ALT levels measuring twice the normal - is within the community standard of care for HCV treatment. Defendants have proffered evidence that the decision to deny HCV treatment was based upon Plaintiff's lab results. Thus, Defendants have met their initial burden establishing a lack of a triable issue of fact. The burden shifts to Plaintiff to come forward with evidence that establishes a triable issue of fact; evidence that Defendants knew of and disregarded a serious risk to Plaintiff's health. Notably, Defendants set forth in their motion that if an inmate meets the criteria established by the ADC protocol, he will be treated for HCV (Defs.' Mot. for Summ. J. (DMSJ) at 16). Defendants state that there is no urgency to initiate Rebetron treatment and that Plaintiff must show that the delay or denial of treatment led to further injury. See McGuckin, 974 F.2d at 1060. Plaintiff alleges in his verified Second Amended Complaint that he suffers symptoms associated with HCV such as daily abdominal pain, nausea, fatigue, weakness, fever, weight loss, headaches, irritability, anxiety, insomnia, and joint and muscle aches (Doc.# 53 at 4J). He claims that these symptoms affect his daily activities and prohibit him from participation in various programs at the prison (Id. at 4K). These symptoms are set forth in some of the HNRs he submitted when requesting medical
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evaluations and they are noted in his medical records (PMSJ, Exs. 36, 37). Defendants do not address these symptoms, nor do they contend that such suffering would continue even with Rebetron treatment. Interestingly, Defendants do not assert or proffer evidence to support that Plaintiff has not been injured, i.e., that his liver function has not been adversely affected by the delay or denial of Rebetron treatment. Based on the record before it, the Court concludes that there is a genuine issue of material fact regarding whether Plaintiff had a serious medical need for Rebetron treatment. B. Deliberate Indifference Deliberate indifference amounts to criminal recklessness; a defendant must have known that a plaintiff was at serious risk of being harmed, and decided not to do anything to prevent that harm from occurring. See Farmer, 511 U.S. at 836-837. A plaintiff does not have to use words like "reckless" or "intentional" to make out a case for deliberate indifference. He must merely plead that the defendants behaved in a way that can be construed to show reckless or intentional conduct. Delay in treating a condition can rise to the level of deliberate indifference. See Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (finding a 3-month dely of treatment to be deliberate in light of prisoner's serious dental problems and repeated complaints); Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (6-day delay in treating prisoner's hepatitis might constitute deliberate indifference). Macabuhay. In his opposition to Defendants' summary judgment motion, Plaintiff submits evidence that on three occasions physicians noted in his medical records Plaintiff appeared to meet, or actually met, the criteria for HCV treatment: (1) Dr. Hurowitz's note on Plaintiff's medical record on September 5, 2002 that Plaintiff "appears to meet criteria for Hep C Rx [treatment]" (DMSJ, Ex. 16); (2) Dr. Macabuhay's Consultation Request sent to Central Office on October 25, 2002 noting that inmate "meets criteria for Rx [treatment] per protocol = persistently elevated LFT's, HCV viral load 785,000" (Id., Ex. 19); and (3) Dr. Plaintiff has sufficiently made this showing with respect only to Dr.

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Macabuhay's note on Plaintiff's medical records on October 1, 2003 that he planned to complete papers for submission for HCV treatment (Id., Ex. 22). Plaintiff also proffers Dr. Macabuhay's responses to Plaintiff's Request for Admissions that include an admission that "no less than three physicians indicated Plaintiff `appears to meet criteria for RX' (Rebetron) (Dr. B. Hurowitz, Dr. Rodolfo Macabuhay and Dr. H. Whitney" (PMSJ, Ex. 43 at #6). Dr. Macabuhay also admitted that his treatment plan, as noted in Plaintiff's medical records on October 1, 2003, was to complete the paperwork for submission for HCV treatment (Id. No. 8). The evidence shows that this paperwork was never submitted by Dr. Macabuhay, and there is no contemporaneously made record reflecting that Dr. Macabuhay changed his mind regarding Plaintiff's eligibility (Exs. 44 at #6, 45 at # 4). Dr. Macabuhay stated in Response to Plaintiff's First Set of Interrogatories in March 2005, and in his Declaration in October 2005, that he reviewed Plaintiff's medical records following the October 2003 examination and determined that Plaintiff did not meet the criteria (PMSJ, Ex. 46 at # 20; DMSJ, Ex. C ¶ 37). Plaintiff responds that there is no evidence - except Dr. Macabuhay's interrogatory response and Declaration two years later documenting this subsequent review. His assertion is correct. Further, Plaintiff submitted evidence that he filed an inmate letter after the October 2003 examination inquiring why he was not receiving Rebetron treatment in light of Dr. Macabuhay's treatment plan. In response to his letter, ADC did not inform Plaintiff that Dr. Macabuhay had subsequently determined that Plaintiff did not qualify for the treatment, nor has any contemporaneous documentation been submitted to that effect. Instead, Plaintiff was inaccurately told that his questions had already been addressed in response to an earlier grievance and that there was no indication that he had ever been recommended for treatment. However, evidence supports that Dr. Macabuhay planned to recommend Plaintiff for Rebetron, but failed to followthrough despite Plaintiff's repeated HNRs, inmate letters and inmate grievances. On summary judgment, the Court does not weigh the evidence or determine the truth of the matters asserted but only determines whether there is a genuine issue of material fact that must be resolved by trial. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152
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(9th Cir. 1997). Plaintiff has provided more than a "scintilla of evidence" that three doctors determined that he either appeared to meet, or met, the criteria for Rebetron treatment. See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact" precluding summary judgment). Further, despite Dr. Macabuhay's claim that a subsequent review resulted in a change of medical opinion as to Plaintiff's eligibility, there is no notation in Plaintiff's medical records of this review or any reevaluation which led to a decision that Plaintiff did not meet the criteria. Finally, when Plaintiff filed an inmate letter inquiring specifically about the lack of treatment in light of Dr. Macabuhay's October 1, 2003 treatment plan, the response did not indicate any change in Dr. Macabuhay's treatment plan. Further, contrary to Defendants' assertion that Plaintiff merely disagreed with the treatment plan recommended by ADC physicians, or that ADC physicians disagreed among themselves regarding the appropriate treatment, medical records reflect that all of the physicians involved concluded that Rebetron treatment was warranted. Only after Plaintiff filed this action and conducted discovery did Dr. Macabuhay belatedly claim he had changed his mind some two years earlier regarding Plaintiff's eligibility to receive Rebetron treatment, which is wholly undocumented in Plaintiff's contemporaneous medical records. A reasonable trier of fact could infer that the failure to follow the treatment plan to submit Plaintiff for Rebetron treatment, despite repeated medical findings that he was eligible and Plaintiff's repeated attempts to obtain such treatment pursuant to those medical findings, amounted to deliberate indifference. Accordingly, the Court finds that a genuine issue of material fact exists as to whether Dr. Macabuhay acted with deliberate indifference to Plaintiff's serious medical needs, precluding summary judgment as to him. 1. Drug Use In their Reply in Support of Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment, Defendants claim that even if Plaintiff met the HVC treatment criteria, his drug use prevented him from being a candidate for treatment
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(Doc. #110 at 3-4). Defendants rely on Plaintiff's deposition in December 2004 in which he admitted to using drugs in the past and in August 2004 (DMSJ, Exs. F, O). Plaintiff addresses this argument in his Reply in Support of his Motion for Summary Judgment and asserts that he does not continue to use drugs and the August 2004 occurrence was an isolated incident of relapse (Doc.# 120). The ADC does not exclude those patients with a past history of drug use from receiving HCV treatment; therefore, Plaintiff's past history of drug use cited by Defendants is irrelevant (DSOF ¶ 83). Plaintiff's use of drugs in 2004 was asserted to be only an isolated use and, regardless, it came after the pertinent dates at issue in Plaintiff's deliberate indifference claim. Therefore, Defendants' claim that Plaintiff's drug use disqualified him from treatment is insufficient to defeat the finding of a genuine issue of material fact. 2. Community Standard In his Motion for Summary Judgment, Plaintiff alleges that the ADC policy dictating the criteria for HCV treatment does not meet the community standard of care (PMSJ at 16). Plaintiff claims that the ADC criteria of "ALT 2 times normal" does not comply with CDC and NIH recommendations. He submits a copy of a NIH Consensus Statement (2002) which states that HCV treatment is recommended for those persons with "persistently elevated" ALT levels (Pl.'s Decl. ¶¶ 96, 97, Ex. 39 at 22). Plaintiff has failed to proffer evidence that the "2 times normal" requirement deviates from the "persistently elevated" standard to the extent that it would not fall within the community standard of care. Without more, Plaintiff's evidence is insufficient to demonstrate that the ADC policy violates his constitutional rights. C. Defendants While Plaintiff has met his burden to set forth specific facts as to Dr. Macabuhay's affirmative role in the alleged deliberate indifference, he has not demonstrated that Siers, Baird, or Jones were in any way the actual and proximate cause of an injury. When a prisoner attempts to hold a prison employee responsible for deliberate indifference, the prisoner must establish individual fault. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Sweeping conclusory allegations will not be sufficient to prevent summary judgment. Id.
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"The prisoner must set forth specific facts as to each individual defendant's deliberate indifference." Id. He must prove that the specific prison official was deliberately indifferent and that this indifference was the actual and proximate cause of the injury. Id. State officials are subject to suit under § 1983 only if "they play an affirmative part in the alleged deprivation of constitutional rights." King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Siers is not a physician and cannot prescribe medical treatment (DMSJ, Ex. D, Siers Decl. ¶ 5). As a Medical Investigator he assists physicians who respond to inmate grievance appeals, but does not personally dictate those responses (Id. ¶¶ 3, 4). Moreover, according to Defendants, Siers stopped working for ADC in August, 2003 (Id. ¶ 1). The ADC Inmate Grievance System establishes that medical grievances are forwarded to the Facility Health Administrator and the Director who in turn formulate the responses (PMSJ, Ex. 52 at 9). Plaintiff has failed to demonstrate that Siers was directly linked to a constitutional violation. Neither Jones nor Baird ever treated Plaintiff, nor is there evidence that either one of them reviewed or rejected Plaintiff's grievance appeal and subsequent inmate letter. Plaintiff alleges that Jones and Baird are part of the Medical Review Committee that exercises the authority to deny or delay recommendations for inmate treatment (Doc. #53 at 4). But, according to the evidence, Dr. Macabuhay never submitted the paperwork to obtain approval for Rebetron treatment so these two defendants were not in a position to deny that treatment. Plaintiff further alleges that Jones and Baird drafted the ADC HCV treatment policy in order to save money and try to disqualify 70% of HCV inmates from ever qualifying for the treatment. Plaintiff has failed to proffer any evidence to support this claim, which could be viewed as a sweeping conclusory allegation. In light of the foregoing, summary judgment as to Defendants Siers, Jones, and Baird will be granted. D. Qualified Immunity Dr. Macabuhay claims that he is entitled to qualified immunity. Qualified immunity is only an immunity from a suit for damages, not for declaratory or injunctive relief. Hydrick v. Hunter, 449 F.3d 978, 992 (9th Cir. 2006). If a defendant claims qualified immunity, the court must make two distinct inquires, the "constitutional inquiry" and the "qualified
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immunity inquiry." See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). The "constitutional inquiry" asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, a court turns to the "qualified immunity inquiry" and asks if the right was clearly established at the relevant time. Id. at 201-02. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201. As discussed supra, the Court has determined that disputed facts, viewed in the light most favorable to Plaintiff, create a triable issues of fact regarding whether (1) Plaintiff had a serious medical need for Rebetron treatment and (2) whether Dr. Macabuhay acted with deliberate indifference to Plaintiff's serious medical need by failing to follow-through with recommending him for that treatment after finding he qualified for it. The second step of the Saucier analysis requires Dr. Macabuhay to demonstrate that the failure to do so did not violate clearly established constitutional law. Id. The intentional denial or delay of access to medical care constitutes an Eighth Amendment violation that was clearly established at the relevant time. See Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002); Lopez, 203 F.3d at 1131. Dr. Macabuhay argues that since he was following ADC procedure, he had no way of knowing that his conduct was constitutionally inappropriate. However, the question is not whether the procedure meets constitutional muster, but whether Plaintiff met the criteria under the protocol and should have received treatment. Dr. Macabuhay's argument on the qualified immunity prong is the same as his defense to the constitutional prong of the analysis; namely, that Plaintiff had repeated lab work and he did not meet the requirements for treatment. This argument implicates the same genuine issues of material fact which, if resolved in favor of Plaintiff, demonstrate deliberate indifference on the part of Dr. Macabuhay. As a result, Dr. Macabuhay fails to pass the second prong of the Saucier test, and qualified immunity will be denied.

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E. Eleventh Amendment Defendants contend that the Eleventh Amendment bars a monetary claim against officials in their official capacity. A suit against a state official in his official capacity is not a suit against the official but rather is a suit against the official's office, so damages are unavailable. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). But a state official sued in his official capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought. Id. at 71, n. 10. Plaintiff sued Defendant Macabuhay in both his official and individual capacities (Doc. #53 at 2). Although damages are prohibited against Macabuhay in his official capacity, Plaintiff may still proceed with his monetary claim against Dr. Macabuhay in his individual capacity; thus, the monetary claim will not be dismissed. Defendants are not entitled to summary judgment as to an award of damages against Dr. Macabuhay based on the Eleventh Amendment. IV. Count II: Equal Protection Plaintiff alleges that Defendants arbitrarily and unjustifiably denied him Rebetron treatment for HVC while other similarly-situated inmates were provided the treatment. Defendants seek summary judgment as to Plaintiff's equal protection claim on the basis that Plaintiff failed to demonstrate that he is being treated differently than other inmates in ADC custody (Doc. #82 at 13-14). Plaintiff seeks summary judgment on the basis that other similarly-situated inmates have received the Rebetron treatment, but he has been repeatedly denied that treatment (PSUF ¶ 92, Doc. #104). To state a claim for a violation of the Equal Protection Clause, a plaintiff must show that the defendants acted with the intent or purpose to discriminate against the him based on his membership in a protected class. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Prisoners are not a suspect class. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998). If a plaintiff is not part of a suspect class, heightened scrutiny may still be required where fundamental interests are at issue. Hydrick, 449 F.3d at1002. Although prisoners enjoy an Eighth Amendment right to medical care, Plaintiff does not claim that he was discriminated against because he sought medical care. Rather, he claims that he was
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discriminated against because the medical care he received differed from medical care other prisoners received. As such, Plaintiff's claim does not invoke a fundamental interest requiring strict scrutiny. However, the Supreme Court has recognized equal protection claims brought by a "class of one" where a plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the different treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Before reaching the merits of Plaintiff's equal protection claim, the Court must determine if Plaintiff and other HCV inmates are similarly situated. In support of his claim, Plaintiff submitted affidavits of inmates who have received HCV treatment (PMSJ, Ex. 67). Defendants object to these inmate affidavits because they are attached to Plaintiff's Declaration but are not based on Plaintiff's personal knowledge (DO at 3, Doc. #111). The Court will consider these evidentiary affidavits filed by Plaintiff in support of his pleadings.8 The affidavits of inmates Rexrode, Nelson, and Russey proffered by Plaintiff are insufficient to establish the similarly situated condition. Only a couple pages of Nelson's medical records are attached, and they only show that Nelson had elevated ALT levels on June 1, 2000 and July 12, 2000, and that he received the HCV drug treatment on September 25, 2001 (PMSJ, Ex. 67, Attach. A and B). Such limited medical evidence is wholly insufficient show that Plaintiff and Nelson, or any other HCV inmates are at the same stage of HCV. Accordingly, Plaintiff has failed to make the threshold showing that he is similarly situated to other HCV inmates that he claims received more favorable treatment. For this reason, summary judgment will be granted to Defendants on the equal protection claim. V. Conclusion The Court finds that a genuine issue of material fact does not exist as to Count II of the Second Amended Complaint and Defendants' motion for summary judgment for that Count will be granted. The Court further finds that a genuine issue of material fact does not

Plaintiff moved to strike one of these affidavits on the ground that the facts attested to were later discovered to be incorrect (Doc. #106). The Court will grant the motion to the extent that it will not consider the affidavit, but will otherwise deny the motion.
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exist as to liability of Defendants Jones, Baird and Siers, and they will be granted summary judgment as to Count I of the Second Amended Complaint. However, because the Court finds that a material issue of fact exists regarding Plaintiff's Eighth Amendment claim against Dr. Macabuhay, the Court will deny both Defendants' and Plaintiff's motions for summary judgment for that claim against Dr. Macabuhay. Finally, the Court finds that a material issue of fact exists as to whether Dr. Macabuhay may be entitled to qualified immunity and it finds that the Eleventh Amendment does not preclude an award of damages against Dr. Macabuhay individually. IT IS ORDERED: 1) Defendants' Motion for Summary Judgment (Doc. # 82) is granted in part and denied in part. The Motion is granted as to Defendants Siers, Jones, and Baird, and as to the equal protection claim (Count II) alleged against Defendant Macabuhay. The Motion is otherwise denied. 2) Plaintiff's Motion to Strike Affidavit of Zachary Johnson (Doc. #106) is granted in part and is otherwise denied. 3) Plaintiff's Motion for Summary Judgment (Doc. # 104) is denied. DATED this 23rd day of August, 2006.

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