1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JAMES MCCURDY, 11 Case No. 18-06232 BLF (PR) Plaintiff, 12 ORDER GRANTING MOTION FOR v. SUMMARY JUDGMENT 13

14 L. THOMAS,

15 Defendant. 16 (Docket No. 15)

17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19

against Defendant L. Thomas, a physician assistant at Pelican Bay State 20 Prison (“PBSP”).1 The Court found the complaint, Dkt. No. 1, stated a cognizable claim 21 under the Eighth Amendment and ordered Defendant to file a motion for summary 22 judgment or other dispositive motion. Dkt. No. 2. 23 Defendant Thomas filed a motion for summary judgment on the grounds that she 24 was not deliberately indifferent to any serious medical need, and she is entitled to qualified 25

26 1 The claim against Defendant L. Thomas was severed from McCurdy v. Rivero, et al., Case No. 17-01043 BLF (PR), and filed as this separate action in accordance with 27 Plaintiff’s wishes. (Docket No. 2 at 2.) 1 immunity. Dkt. No. 15, (hereinafter “Mot.”2). Plaintiff filed a “declaration in opposition,” 2 Dkt. No. 32, along with exhibits in support thereof, Dkt. No. 33, Exs. A-V. Defendant 3 filed a reply. Dkt. No. 34. 4 For the reasons stated below, Defendant’s motion for summary judgment is 5 GRANTED. 6 DISCUSSION 7 I. Statement of Facts3 8 On April 18, 2016, Plaintiff arrived at PBSP where he remained until he was 9 transferred to another prison on February 7, 2017. Dkt. No. 1 at 41, 53. During this time, 10 Defendant Thomas was Plaintiff’s physician assistant (“PA”) from April 18, 2016 until 11 September 2016, when Plaintiff was moved to a different unit at PBSP. Thomas Decl. ¶¶ 12 1, 12. During this time, Plaintiff suffered from chronic abdominal pain, occasional 13 diarrhea and constipation, and occasional bloody stool.

14 According to his medical records, Plaintiff was diagnosed with irritable bowel 15 syndrome (“IBS”) in January 2016, before his arrival at PBSP.

; EA-A, 113; EA- 16 C, 341. According to Defendant, an IBS diagnosis means that a patient is suffering from 17 reoccurring stomach pain alongside changes in bowel movement, like diarrhea and 18 constipation. Thomas Decl. ¶ 14. Defendant states that the causes of IBF remain unclear, 19 and there are multiple potential causes of IBS symptoms, which range from non- 20 threatening factors, e.g., food sensitivity, intestinal bacteria outgrowth, and high levels of 21 stress, to the result of celiac disease and terminal illnesses like colon cancer.

At the 22 2 In support of her motion, Defendant Thomas provides her own declaration, Dkt. No. 15- 23 1, along with declarations from the following: Dr. D. Jacobsen, the current Chief Medical Executive at PBSP beginning March 2016, Dkt. No. 15-2; and counsel Robert Rogoyski, 24 Dkt. No. 15-3. Defendant also submits exhibits containing authenticated copies of relevant portions of Plaintiff’s medical records, as well as prison guidelines and operations manual 25 related to health care, among other items, Dkt. No. 15-4, (hereinafter “EA-” followed by the exhibit letter). 26 1 time of his arrival at PBSP, Plaintiff’s medical history showed that the cause of his 2 abdominal issues was unknown.

; EA-C, 341-43. 3 A. Prescription for Dicyclomine 4 While under her care, Plaintiff made several requests for Dicyclomine to Defendant 5 Thomas. Thomas Decl. ¶ 16. 6 Defendant sets forth the following information regarding Dicyclomine.

, 7 18. Dicyclomine is an anti-spasmodic medication, which temporarily relaxes the muscles 8 in the gut and reduces cramping.

. Dicyclomine is therefore often prescribed to 9 pregnant patients experiencing morning sickness.

Dicyclomine can also be a first line 10 of treatment for IBS symptoms like stomach cramping and diarrhea. Id.; EA-H, 4.4 11 However, Defendant asserts that long-term use of Dicyclomine has not been clinically 12 established, and is therefore considered not indicated for long-term use. Id.; EA-H, 4-5. 13 There are several reasons why Dicyclomine may not be an appropriate medication for 14 many patients.

The evidence of the drug’s efficacy and safety for patients in general is 15 weak.

Firstly, the California Correctional Health Care Services Care guide does not 16 recommend muscle relaxants, like Dicyclomine, for treating chronic pain, noting that there 17 are “no current studies supporting their use.” Id.; EA-G, 37. Second, for many patients is 18 ineffective or becomes ineffective during the course of treatment. Id.; EA-H, 1-5. Third, 19 Dicyclomine does not treat the underlying cause of abdominal issues even when it is 20 effective for treating symptoms.

Fourth, Dicyclomine can mask symptoms for more 21 severe underlying conditions – a particular concern when the cause of a patient’s 22 symptoms is unknown.

Finally, Dicyclomine can be addictive when used for an 23 extended period. Id.; EA-H, 1. Withdrawal symptoms, such as hypertension, anorexia, 24 and depression, can occur in patients after regular use of the drug.

Such symptoms are 25 4 Under exhibit EA-H, Defendant submits an article published on December 3, 2015, by 26 the Canadian Agency for Drugs and Technologies in Health titled, “Dicyclomine for 1 unpleasant for the patient and may harm the patient by masking symptoms of a more 2 serious condition.

The risk of addiction is higher in patients with a history of 3 substance abuse.

4 Plaintiff disputes Defendant’s sources for the above information on Dicyclomine, 5 asserting “her source doesn’t seem very reliable and is unclear.” Opp. at 13. Plaintiff 6 asserts that he had been treated with Dicyclomine by physicians at other institutions and 7 had never before been warned that it was addictive, and that he had been given the 8 medication “in bulk weeks at a time.”

. Plaintiff states, “If what def states was true 9 officials wouldn’t have prescribed it this way.”

10 B. Medical Diets 11 While under her care, Plaintiff made several requests for a special medical diet to 12 Defendant Thomas. Thomas Decl. ¶ 19. 13 Medical diets are specialty services within the California state prison system.

at. 14 ¶ 20; EA-I, 1. PBSP is among the limited number of facilities that provide medical diets. 15 Id.; EA-I, 11. PBSP has specialty diet regimens available for patients with gluten 16 sensitivity, liver disease, and renal or kidney disease. Id.; Jacobsen Decl. ¶ 18; EA-I, 6-10. 17 According to the “Health Care Department Operations Manual” for the California 18 Correctional Health Care Services (“CCHCS”), there is a specific procedure for ordering 19 “medically and clinically necessary therapeutic diets.” EA-I, 1. After first identifying the 20 medical condition that necessitates special dietary considerations, the primary care 21 providers must refer their patients to consultations with registered dieticians.

After 22 consultation, the registered dieticians then provide any recommendations and document it 23 in the health record.

. 24 C. Complex Care Committee 25 At one time, Plaintiff requested a referral to PBSP’s Complex Care Committee 26 (“Committee”) which Defendant asserts she was not made personally aware. Thomas 1 The Committee is a medical review board made up of facility physicians, 2 pharmacists, and psychiatrists.

. The Committee generally assists primary care 3 providers in two situations: (1) as an advisory resource where patients’ medical options 4 include prescription narcotics and certain other dangerous medications; and (2) to assist in 5 the care of inmate-patients with severe or terminal illnesses like cancer, when these 6 illnesses present complex pain management concerns. Id.; Jacobsen Decl. ¶ 21. The 7 Committee is also available at the request of a clinician for advice, such as when the 8 clinician feels that standard diagnostic and treatment options have been exhausted in a 9 complex case.

10 D. Plaintiff’s Medical Treatment 11 On May 8, 2016, Plaintiff submitted a standard health services request (form 7362) 12 for the medication Dicyclomine to treat his abdominal pain. Thomas Decl. ¶ 24; EA-B, 13 344. A registered nurse scheduled Plaintiff for a follow-up with Defendant Thomas for 14 May 10, 2016.

15 At the May 10 visit, Plaintiff complained of diarrhea, occasional stomach cramping, 16 and occasional blood in his stool.

He also insisted on getting Dicyclomine for these 17 symptoms. Id.; EA-C, 341-43. According to Defendant, she followed CDCR medical care 18 guidelines for assessing inmate-patients in pain.

; EA-F, 38 (California 19 Prison Health Care Services Pain Management Guidelines); EA-G, 3-4 (CCHCS Care 20 Guide). Those guidelines include a series of steps, the first being a review of the patient’s 21 medical history with particular attention to substance abuse and attempted procedures and 22 treatment.

Defendant reviewed Plaintiff’s medical file and noted that he had been 23 experiencing abdominal issues for over a year.

; EA-A, 992. The record showed 24 that Plaintiff was on a trial of Dicyclomine that was scheduled for one more renewal on 25 May 19, but that he had already used up his last allotment by the time of this visit. Id.; 26 EA-C, 0341-043. Plaintiff’s record also showed that he was diagnosed with IBS while at 1 rectal exam or colonoscopy to investigate his symptoms or confirm the diagnosis.

2 Plaintiff had also never been on dietary regimens.

Lastly, Plaintiff’s record showed a 3 long history of mental health issues, methamphetamine and heroin abuse, as well as drug 4 seeking behavior. Id.; EA-A, 184, 992. In light of Plaintiff’s history of substance abuse, 5 his behavior, and her medical knowledge, Defendant decided not to provide any early 6 renewal of Dicyclomine.

. 7 Also at the May 10 visit, Defendant discontinued two of Plaintiff’s prescriptions. 8

. The first was for Loperamide, an anti-diarrhea drug that is normally available 9 over the counter outside of a prison context; in the prison population, Loperamide is used 10 to treat acute diarrhea for a short period.

Plaintiff did not have acute diarrhea and had 11 already been taking Loperamide for a longer period than is typically recommended.

12 Furthermore, Loperamide is usually not prescribed when a patient has bloody stools, and 13 Plaintiff reported having an occasional bloody stool.

Accordingly, Defendant believed 14 that Loperamide was no longer medically appropriate or medically necessary.

The 15 second prescription that was discontinued was for allergy relief eye drops.

; EA- 16 C, 342. Based on Plaintiff’s description of his mild allergy symptoms, Defendant 17 determined that the eye drops were not needed to protect his life, were not preventing 18 significant illness or disability, and were not alleviating severe pain and therefore not 19 medically necessary.

20 Defendant ordered a series of stool and blood tests to address Plaintiff’s lack of 21 abdominal diagnostics.

; EA-C, 0343. She also advised Plaintiff on how to keep 22 from lactose in order to determine whether Plaintiff was lactose sensitive and avoidance 23 could alleviate discomfort. Id.; EA-C, 0342. The testing would establish if Plaintiff was 24 gluten sensitive, help determine whether he needed a referral to a dietician, show if 25 Plaintiff had experienced an outgrowth of abdominal bacteria, and if there was blood in his 26 stool.

1

; EA-D, 592-94. On May 24 and 25, the results came in negative for an 2 outgrowth of abdominal bacteria, antibodies, and gluten sensitivity.

However, the tests 3 were positive for fecal occult blood, which refers to microscopic traces of blood in the 4 feces that is not visibly apparent to the naked eye.

Accordingly, Defendant believed a 5 rectal exam was appropriate to check for inflamed hemorrhoids or ulcers, or other more 6 serious causes.

She scheduled the rectal exam for Plaintiff, to take place on June 7, 7 2016. Id.; EA-C, 327. 8 On June 7, 2016, Plaintiff was seen by Defendant for the rectal exam.

; 9 EA-C, 308-11. At this visit, Plaintiff reported that he was on a hunger strike “to get a 10 ‘medical diet,’ [and] ‘to get my meds for my stomach.’” EA-C, 308. According to the 11 records submitted by Plaintiff, he began the hunger strike on approximately June 2, 2016, 12 and ended it on June 11, 2016. Opp., Ex. I. 13 During the exam, Defendant observed no hemorrhoids or masses.

; EA- 14 C, 308-11. Administering a rapid occult blood test (hemoccult), she found no presence of 15 occult blood in Plaintiff’s stool.

Using an anoscope, she found that Plaintiff was free 16 of hemorrhoids and that his prostate was normal.

In light of the negative rectal exam, 17 Defendant concluded that Plaintiff did not meet the criteria for additional studies, 18 including more invasive procedures like a colonoscopy.

19 During the visit for his rectal exam, Plaintiff complained of occasional stomach 20 cramps when waking up in the morning and occasional constipation.

; EA-C, 21 308. Plaintiff also explained that his abdominal discomfort did not lessen after attempting 22 a lactose free diet regiment.

For his abdominal discomfort, Plaintiff requested a 23 special medical diet.

Defendant explained to Plaintiff that he did not qualify for any of 24 the special medical diets available to inmate-patients, including gluten or lactose free diets, 25 because his trials and lab tests showed that Plaintiff was not gluten or lactose sensitive. 26 Id.; EA-C, 309; EA-I, 7, 11; EA-D, 592-94. Nor did Plaintiff present symptoms for liver, 1 Defendant did not recommend Plaintiff to a dietician for a special medical diet.

2 On June 13, 2016, Plaintiff submitted a form 7362 request for medication for his 3 abdominal pain; Defendant was not made aware of this request at that time.

; 4 EA-B, 300. A registered nurse followed up with Plaintiff on June 15, 2016.

The 5 nurse’s encounter form mentions that Plaintiff requested a referral to PBSP’s “pain 6 committee” as well as a dietary consult. Id.; EA-B, 301-02. The nurse scheduled a 7 meeting for Plaintiff with Defendant for June 28, 2016.

; EA-B, 300. 8 According to Plaintiff, he saw Defendant along with the nurse on June 15, 2016, 9 and mentioned the Committee. Opp. at 16. He also claims that he mentioned the 10 Committee before the rectal exam.

. 11 At the June 28 meeting, Plaintiff made no mention of the Complex Care Committee 12 to Defendant. Id.; EA-C, 292-95. Plaintiff complained of having three to four bowel 13 movements per day, diarrhea, morning stomach cramps, and the presence of mucus in his 14 stool.

; EA-C, 293. Plaintiff insisted on a new prescription of Dicyclomine and 15 a special medical diet for these symptoms.

Defendant explained that Dicyclomine was 16 not appropriate for his long-term use and denied the request.

; EA-C, 294. 17 Defendant also explained that a medical diet was not appropriate because there was no 18 medical necessity for it; accordingly, she did not recommend Plaintiff to a dietician.

at 19 ¶ 46; EA-C, 294. 20 On the following day, June 29, 2016, Defendant met with Dr. Jacobsen, PBSP’s 21 Chief Medical Executive, to discuss an appropriate response to Plaintiff’s persistent 22 complaints of abdominal issues.

; EA-C, 292. Defendant believed a referral to a 23 gastroenterologist for a possible colonoscopy was appropriate to help identify the 24 underlying causes of Plaintiff’s symptoms and rule out certain serious illnesses.

She 25 brought this recommendation to Dr. Jacobsen who agreed with and approved the plan. Id.; 26 Jacobsen Decl. ¶ 24. Defendant ordered a gastroenterology consultation for Plaintiff. 1 On September 13, 2016, Plaintiff received the consult with a gastroenterologist in 2 Eureka, California.

; EA-E, 754-56. Defendant reviewed the findings on 3 September 19, 2016.

The gastroenterologist noted Plaintiff was well-nourished and 4 alert.

He identified slight tenderness in Plaintiff’s right lower quadrant.

He also 5 confirmed Plaintiff was experiencing changes in his bowel, including diarrhea.

In light 6 of his symptoms and medical history, the specialist approved Plaintiff for a colonoscopy. 7

The procedure took place on September 30, 2019, about the time that Plaintiff moved 8 out from Defendant’s unit at PBSP and was no longer in Defendant’s care.

; 9 Jacobsen Decl. ¶¶ 6, 26. According to Plaintiff, Defendant Thomas remained his PCP 10 until he was transferred from PBSP in February 2017. Opp. at 18. 11 According to Plaintiff’s medical records, the results of the colonoscopy showed 12 Plaintiff had a normal colon but that he had internal hemorrhoids. Thomas Decl. at ¶ 50; 13 EA-E, 1564. Internal hemorrhoids refer to swollen blood vessels inside the rectum, which 14 may lead to a mucus discharge in the stool.

; Jacobsen Decl. ¶ 27. Hemorrhoids 15 are common and are more likely to occur with aging, as the tissue that supports the veins in 16 one’s rectum weakens and stretches.

Defendant states hemorrhoids are not a cause of 17 IBS symptoms like cramping and changes in bowel movement, although strained bowel 18 movements may cause internal hemorrhoids. Thomas Decl. ¶ 50. According to 19 Defendant, neither Dicyclomine nor any of the specialty medical diets available at PBSP 20 would treat internal hemorrhoids. Id.; Jacobsen Decl. ¶ 27. A positive hemorrhoid finding 21 does not warrant a referral to the Committee. Jacobsen Decl. ¶ 27. 22 II. Summary Judgment 23 Summary judgment is proper where the pleadings, discovery and affidavits show 24 that there is “no genuine dispute as to any material fact and the movant is entitled to 25 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 26 “against a party who fails to make a showing sufficient to establish the existence of an 1 at trial . . . since a complete failure of proof concerning an essential element of the 2 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 3 Cattrett,

(1986). A fact is material if it might affect the outcome of 4 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 5 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 6 Anderson v. Liberty Lobby, Inc.,

(1986). 7 Generally, the moving party bears the initial burden of identifying those portions of 8 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 9 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 10 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 11 than for the moving party. But on an issue for which the opposing party will have the 12 burden of proof at trial, the moving party need only point out “that there is an absence of 13 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 14 to the motion is merely colorable, or is not significantly probative, summary judgment may 15 be granted. See Liberty Lobby,

. 16 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 17 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 18 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 19 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 20 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 21 The Court’s function on a summary judgment motion is not to make credibility 22 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 23 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n,

, 630 (9th Cir. 1987). 24 The evidence must be viewed in the light most favorable to the nonmoving party, and the 25 inferences to be drawn from the facts must be viewed in a light most favorable to the 26 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 1 1996). The nonmoving party has the burden of identifying with reasonable particularity 2 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 3 the district court may properly grant summary judgment in favor of the moving party. See 4 id.; see, e.g., Carmen v. San Francisco Unified School District,

, 1028-29 5 (9th Cir. 2001). 6 A. Deliberate Indifference 7 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 8 Amendment. Estelle v. Gamble,

(1976). A prison official violates the 9 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 10 objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 11 to the inmate’s health or safety. See Farmer v. Brennan,

(1994). 12 A “serious” medical need exists if the failure to treat a prisoner’s condition could 13 result in further significant injury or the “unnecessary and wanton infliction of pain.”

14 The following are examples of indications that a prisoner has a “serious” need for medical 15 treatment: the existence of an injury that a reasonable doctor or patient would find 16 important and worthy of comment or treatment; the presence of a medical condition that 17 significantly affects an individual’s daily activities; or the existence of chronic and 18 substantial pain. McGuckin v. Smith,

(9th Cir. 1992), overruled 19 on other grounds, WMX Technologies, Inc. v. Miller,

(9th Cir. 1997) 20 (en banc). 21 A prison official is deliberately indifferent if he knows that a prisoner faces a 22 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 23 to abate it. See Farmer,

. The official must both know of “facts from 24 which the inference could be drawn” that an excessive risk of harm exists, and he must 25 actually draw that inference.

If a prison official should have been aware of the risk, 26 but was not, then the official has not violated the Eighth Amendment, no matter how 1 “A difference of opinion between a prisoner-patient and prison medical authorities 2 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,

1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of 4 medical opinion as to the need to pursue one course of treatment over another is 5 insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v. Chung, 6

(9th Cir. 2004); Sanchez v. Vild,

(9th Cir. 7 1989); Mayfield v. Craven,

(9th Cir. 1970). In order to prevail on a 8 claim involving choices between alternative courses of treatment, a plaintiff must show 9 that the course of treatment the doctors chose was medically unacceptable under the 10 circumstances and that he or she chose this course in conscious disregard of an excessive 11 risk to plaintiff’s health. Toguchi,

; Jackson v. McIntosh,

, 12 332 (9th Cir. 1996) (citing Farmer,

). 13 B. Analysis 14 Plaintiff claims that Defendant acted with deliberate indifference when she 15 discontinued medication that helped with some of his symptoms and denied him a special 16 diet and referral to the “pain committee.” Dkt. No. 1 at 43. 17 Defendant asserts that she was not deliberately indifferent to Plaintiff’s needs 18 throughout the time he was under her care. Mot. at 13. She asserts that when treatment 19 has been provided, as was the case here, Plaintiff must show that the chosen course of 20 treatment was medically unacceptable under the circumstances and that the defendants 21 chose this course “in conscious disregard of an excessive risk to plaintiff’s health.”

22 (citing Snow v. McDaniel,

(9th Cir. 2012) (quoting Jackson,

332). Defendant asserts that she treated Plaintiff’s abdominal issue on at least 6 occasions. 24 Id. at 13-14; see generally EA-C. She began with an independent assessment of his 25 abdominal symptoms, medical record, and behavior. Id. at 14. She also created and began 26 executing a comprehensive treatment plan for Plaintiff in accordance with the CCHCS, 1 and type of pain before diagnosing and prescribing medication. Id. By the end of their 2 initial meeting on May 10, 2016, Defendant had educated Plaintiff on how to conduct a 3 diagnostic dietary regimen and ordered a series of diagnostic tests to identify the 4 underlying cause of his abdominal discomfort. Id. With respect to the claim that she 5 wrongfully refused to prescribe Dicyclomine, Defendant asserts that her refusal to over- 6 prescribe that medication was not only consistent with accepted medical practice, but also 7 safe and effective. Id. Defendant also asserts that her decision not to seek a specialized 8 meal diet on Plaintiff’s behalf was also medically sound. Id. at 15. Lastly, Defendant 9 asserts that she was unaware that Plaintiff sought the Committee’s review, and that even if 10 she had been made aware, a referral was not medically necessary. Id. at 16. Defendant 11 asserts that the evidence shows that she provided extensive, medically-appropriate 12 treatment to Plaintiff, and therefore Plaintiff cannot establish the second element for an 13 Eighth Amendment claim – that she deliberately ignored his abdominal pain and needs and 14 refused him necessary medical treatment. Id. at 17. 15 In opposition, Plaintiff first sets forth a long history of medical treatment at various 16 institutions before his arrival at PBSP, claiming that the matters are all related. Opp. at 3. 17 However, as Plaintiff points out in disagreement, the Court ordered unrelated claims to be 18 severed and filed separately in the appropriate courts that had jurisdiction over the 19 unrelated defendants. Id. Accordingly, any arguments or facts asserted in Plaintiff’s 20 opposition that have nothing to do with PBSP or Defendant Thomas shall not be 21 considered as irrelevant and outside the scope of this action. 22 With respect to his claims against Defendant Thomas, Plaintiff first asserts that her 23 claim that Dicyclomine is addictive is false. Opp. at 7. He points out that he had never 24 before been warned that it was addictive by any physician at other institutions who had 25 prescribed it for him. Id. at 3. Plaintiff states, “If what def states was true officials 26 wouldn’t have prescribed it this way.” Id. Plaintiff also asserts that he requested the early 1 when the pharmacy was closed on the weekend, and not because he is addicted to it. Id. at 2 7, 9. Plaintiff asserts that Defendant discontinued “each and every medication and 3 nutritional supplement [he] was prescribed,” and refused to prescribe any pain reliever. Id. 4 at 9-10. Contrary to Defendant’s argument, Plaintiff asserts that he was not treated at all. 5 Id. at 11. He claims that Dicyclomine was not the only medication he requested, and that 6 he also requested physical therapy, hot and cold pack, or other types of medication and 7 supplements. Id. He asserts that Defendant was discriminating against him for his drug 8 history. Id. at 19. Plaintiff also states that he sought a referral to the pain committee 9 “because it was the only way to go above her in order to get a second opinion by a real 10 doctor and possibly get medication or care that would offer more relief.” Id. at 11. 11 In reply, Defendant asserts that it matters not that her manner of treatment differed 12 from other doctors in previous years or at other institutions because Plaintiff must establish 13 that her chosen course of treatment was “medically unacceptable under the circumstances.” 14 Reply at 1-2. Furthermore, Defendant asserts that Plaintiff’s assertion of discriminatory 15 intent is in fact a substantive disagreement on an issue of medical opinion: “whether and to 16 what extent a patient’s history of substance abuse should be weighed when prescribing 17 Dicyclomine.” Id. at 2. Defendant asserts that a mere difference of medical opinion 18 between physician and patient in this regard, or with respect to any aspect of Plaintiff’s 19 treatment, does not constitute deliberate indifference. Id. at 2-3. Lastly, Defendant objects 20 to the 290 pages of exhibits submitted with Plaintiff’s opposition, as none of the exhibits 21 are authenticated and all appear to be intended for use as hearsay or improper expert 22 opinion. Id. at 3. But even if the Court were to consider them, Defendant asserts that none 23 of the exhibits demonstrate that her medical treatment decisions were medically 24 unacceptable under the circumstances. Id. Defendant asserts in conclusion that Plaintiff 25 has not established “beyond debate” that her medical treatment was constitutionally 26 inadequate. Id. at 4. 1 relating to Plaintiff’s claim of deliberate indifference against Defendant Thomas with 2 regard to his medication, special diet, or referral to the pain committee. Assuming he 3 suffered from a serious medical condition, Plaintiff’s medical records show that he 4 received regular treatment for his chronic abdominal pain from Defendant Thomas. See 5 supra at 5-9. Within a couple of weeks of his arrival at PBSP, Plaintiff was seen by 6 Defendant Thomas who noted his complaints and request for Dicyclomine. Id. at 5. In 7 accordance with medical care guidelines, she reviewed his medical history with special 8 attention to substance abuse and attempted procedures and treatment. Id. at 5-6. 9 Defendant decided not to provide an early refill of Dicyclomine, which she believed was 10 addictive, because of Plaintiff’s history of substance abuse, his behavior, and her medical 11 knowledge, and later declined to renew the medication altogether because she did not 12 believe it was medically appropriate for long-term use. Id. at 6, 8. It matters not whether 13 Dicyclomine is or is not actually addictive. The material fact is what Defendant believed 14 in that regard, and how her medical knowledge affected her manner of treatment to 15 Plaintiff. Defendant states that Plaintiff’s history of substance abuse coupled with her 16 knowledge that Dicyclomine posed a risk of addiction which was heightened in users with 17 a history of substance abuse made her decide not to provide an early refill. Thomas Decl. 18 ¶¶ 27-28. She also decided later not to renew the prescription for Dicyclomine at all 19 because it was not medically appropriate: it was not appropriate for long-term use, there 20 was no established efficacy for long-term use, it could interfere with his care by masking 21 recurring symptoms, and inhibit her ability to investigate causes, and Plaintiff was at a 22 high risk of addiction given his history of substance abuse and already long-term use of the 23 drug. Id. at ¶¶ 43-44. Accordingly, it cannot be said that her decision to discontinue 24 indicates deliberate indifference to serious risks to Plaintiff. Furthermore, Defendant 25 ordered diagnostic tests which appeared not to have been done, and then performed a rectal 26 exam to rule out hemorrhoids or ulcers, or more serious causes for Plaintiff’s abdominal 1 complaints persisted, Defendant sought and gained approval to refer Plaintiff to a 2 gastroenterologist for a colonoscopy. Id. at 8. The subsequent colonoscopy revealed that 3 Plaintiff had internal hemorrhoids. Id. at 9. None of these actions indicate that Defendant 4 knew Plaintiff would face a substantial risk of serious harm and failed to take steps to 5 abate that harm. See Farmer,

. Rather, she sought to investigate Plaintiff’s 6 complaints and ordered diagnostics tests to provide appropriate treatment, and ultimately, 7 her actions lead to a medical diagnosis of internal hemorrhoids. 8 Even if it were true that Defendant’s course of treatment, i.e., discontinuing 9 Dicyclomine and other supplements, was different from Plaintiff’s previous medical 10 providers, this difference in treatment does not establish that Defendant was acting with 11 deliberate indifference. A difference of medical opinion as to the need to pursue one 12 course of treatment over another is insufficient, as a matter of law, to establish deliberate 13 indifference. See Toguchi,

. Rather, Plaintiff must show that 14 Defendant’s chosen course of treatment was medically unacceptable under the 15 circumstances and that she chose it in conscious disregard of an excessive risk to 16 Plaintiff’s health.

. Dr. Jacobsen’s professional medical opinion that Defendant 17 Thomas “provided appropriate medical care that was tailored to [Plaintiff’s] individual 18 medical needs” and that it was “at all times consistent with acceptable standards of medical 19 care and CDCR policies and guidelines” is evidence that her chosen course of treatment 20 was medically acceptable under the circumstances. Jacobsen Decl. ¶ 28. Nor is there any 21 evidence that Defendant chose her course of treatment in conscious disregard of an 22 excessive risk to Plaintiff’s health. Rather, she decided not to renew Dicyclomine because 23 of its addictive potential coupled with Plaintiff’s addictive behavior, in addition to several 24 other concerns. See supra at 15. The fact that previous doctors did not bring these issues 25 to Plaintiff’s attention does not mean Defendant’s concerns were invalid. 26 With respect to Plaintiff’s diet, there is also no genuine dispute of material fact that 1 whether Plaintiff’s abdominal issues could be managed by avoiding gluten and lactose but 2 neither seemed to be the case. Id. at 7. Defendant did not believe there was any medical 3 necessity to pursue a special diet, based on a food sensitivity or a serious disease, and 4 therefore she did not recommend Plaintiff to a dietician. Id. Even when Plaintiff went on 5 a hunger strike, there is no indication that Defendant had any reason to believe there was 6 an excessive risk of harm to Plaintiff’s health if she did not acquiesce to his request for a 7 special diet since there was no medical reason why he could not consume the regular diet. 8 Indeed, Defendant noted in her progress notes from the June 7, 2016 visit that it was 9 unclear “as to what [Plaintiff] wants” since he requested both a medical diet as well as a 10 kosher diet. EA-C, 309. Defendant’s progress notes also noted the hunger strike and 11 indicated that she advised Plaintiff that he should eat to avoid compromising his own 12 personal care. EA-C, 309. Bottomline, whether or not Plaintiff needed a special diet to 13 treat his abdominal complaints was a difference of opinion between himself and 14 Defendant. Such a difference of opinion between a prisoner-patient and a medical official 15 regarding treatment, i.e., the need for a special diet, does not give rise to a § 1983 claim. 16 See Franklin, 662 F.2d at 1344. 17 Lastly, there is no genuine dispute of material fact on the issue of whether 18 Defendant acted with deliberate indifference with respect to the lack of referral to the 19 Committee. Defendant asserts that she was unaware at any time during the course of 20 treatment that Plaintiff wanted to be referred to the Committee. See supra at 7-8. Plaintiff 21 asserts that he personally requested it of her at different times during June 2016. Id. Be 22 that as it may, Defendant asserts that had Plaintiff made the request, she would have 23 explained that such a referral was not indicated. Thomas Decl. ¶ 41. Plaintiff was not on a 24 narcotic medication of the type addressed by the Committee, and his symptoms did not 25 indicate a narcotic was necessary. Id. Furthermore, Plaintiff was not suffering from a 26 complex medical situation, such as a terminal disease, and the diagnostic and treatment 1 not appropriate until a thorough investigation of a patient’s symptoms are undertaken to 2 rule out potential causes and adequately inform the Committee of the situation; Plaintiff’s 3 condition had not yet been thoroughly examined, such as with a colonoscopy, to yet 4 warrant such a referral. In other words, a referral to the Committee at that time would 5 have been premature. Accordingly, even construing the facts in favor of Plaintiff and 6 accepting as true that Defendant knew of his request for a referral and denied it, it cannot 7 be said that the denial establishes deliberate indifference because it is yet another example 8 of a difference of opinion between Plaintiff and Defendant that does not give rise to a § 9 1983 claim. It is undisputed that on June 29, 2016, Defendant met with Dr. Jacobsen to 10 obtain authorization for a referral to a gastroenterologist for a colonoscopy, which 11 ultimately lead to the diagnosis of Plaintiff’s internal hemorrhoids. Accordingly, it cannot 12 be said that Defendant denied Plaintiff a referral to the Committee with a deliberate 13 disregard of a substantial risk of serious harm to Plaintiff when she in fact took further 14 steps to obtain appropriate medical treatment for Plaintiff with a referral to an outside 15 specialist. 16 Based on these undisputed facts, Plaintiff has failed to show that Defendant 17 Thomas’s chosen course of treatment was medically unacceptable under the circumstances 18 and that she chose this course in conscious disregard of an excessive risk to Plaintiff’s 19 health. Toguchi,

. Nor do the differences of opinion between Plaintiff 20 and Defendant over the course of treatment with respect to his diet and referral to the 21 Committee give rise to a § 1983 claim. Franklin, 662 F.2d at 1344. Plaintiff has failed to 22 meet his burden of identifying with reasonable particularity the evidence that precludes 23 summary judgment. See Keenan, 91 F.3d at 1279. Accordingly, Defendant Thomas is 24 entitled to summary judgment on this claim. See Celotex Corp.,

. 25 /// 26 /// 1 CONCLUSION 2 For the reasons stated above, Defendant L. Thomas’s motion for summary 3 || judgment, (Docket No. 15), is GRANTED. The Eighth Amendment deliberate 4 || indifference claim against her is DISMISSED with prejudice. 5 This order terminates Docket No. 15. 6 IT IS SO ORDERED. 7 || Dated: March 1, 2020 koh hh | amar BETH LABSON FREEMAN 8 United States District Judge 9 10 11 a 12

15 16

Z 18 19 20 21 22 23 24 Order Granting MSJ PRO-SE\BLF\CR.18\06232McCurdy_grant-msj 25 76 ll 5 Because the Court finds that no constitutional violation occurred, it is not necessary to 97 || reach Defendant’s qualified immunity argument.