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California Prisoner Wins PI For Liver Transplant Evaluations

by John E. Dannenberg

The United States District Court (S.D. Cal.) issued a preliminary
injunction (PI), ordering the California Department of Corrections (CDC) to
inquire of all liver transplant centers in California as to whether they
could accept a prisoner as a transplant candidate, and to pick two of those
so able to perform complete in-hospital transplant evaluations to determine
potential transplant list placement. In making initial evaluations, the
transplant centers may take into account prison eligibility criteria and
the prisoner's medical profile and drug use history.

Carlos Rosado, incarcerated at Centinela State Prison (CSP), presented with
severe abdominal pains in 2000 and was diagnosed with Hepatitis-C and liver
cirrhosis. Doctors told him his cirrhosis was advanced and he might only
live for five years, unless he had a liver transplant. Although Rosado
resisted transfer to the Corcoran State Prison hospital unit, he continued
to seek placement on a liver transplant list through administrative
appeals. When these were exhausted, he filed a pro per 42 U.S.C. § 1983
complaint in June 2003 alleging violation of his Eighth and Fourteenth
Amendment rights to have his name placed on a transplant list and to
provide the necessary care for his life-threatening liver condition. Cooley
Godward (San Diego) was approved as pro bono counsel in July 2004.

Initially, Rosado was given partial transplant evaluations at the
University of California (Los Angeles and San Francisco) (UCLA and UCSF).
UCLA had security concerns about taking a prisoner as a patient while UCSF
principally deferred him pending remediation of his continuing substance
abuse (marijuana, alcohol and smoking). No further evaluations were planned.

Rosado sought a PI to order his evaluation at all eight liver transplant
facilities in California, plus ongoing monthly physician care at Centinela,
all medications and dietary supplements and placement on all transplant
lists wherever he might be accepted. The court reviewed the request for a
PI for three factors to predict likelihood of success on the merits:
medical necessity, transplant eligibility and security concerns.
As to the first factor, it was undisputed that Rosado needed a transplant
for survival. Second, eligibility was to be determined by transplant center
standards, including rejection for substance abuse, which entailed
variously from three monthly clean tests to a year of verified
abstinence. Rosado explained that his positive marijuana tests were solely
the result of second-hand smoke, but the hospitals replied that the source
of the objectionable substance was immaterial. Since Rosado could amend his
behavior to comply, he tentatively satisfied this factor. As to security
concerns, each hospital could be polled and any one accepting him would
satisfy the third factor. In sum, the court found that the balance of
hardships tipped in Rosados favor, and therefore it granted a partial PI
to him.

The order requires CDC with 30 days to contact all California transplant
centers to determine whether they will accept a prisoner candidate. Of
those so accepting, no more than two shall be selected, after considering
medical, drug use and institutional eligibility criteria, for complete
transplant evaluations at those hospitals. If Rosado were to be denied
listing at both of those facilities, he could return to the court for
consideration of pursuing additional evaluations. See: Rosado v. Alameida,
359 F.Supp.2d 1341 (S.D. Cal. 2004).

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Related legal case

Rosado v. Alameida

349 F.Supp.2d 1340

United States District Court, S.D. California.
Carlos ROSADO, Plaintiff,


Edward ALAMEIDA, Jr., et al., Defendants.

No. 03 CV 1110 J(LSP).
Dec. 8, 2004.
Background: State prisoner brought civil rights action under § 1983 against prison officials, alleging that officials violated his Eighth and Fourteenth Amendment rights by failing to place his name on a liver transplant list and provide other necessary care for his life-threatening liver condition. Following conversion of temporary restraining order (TRO), which required officials to provide prisoner with immediate medical attention, into preliminary injunction, prisoner moved for another preliminary injunction ordering officials to ensure that he received evaluations at all liver transplant centers in California.

Holdings: The District Court, Jones, J., held that:
(1) prisoner showed likelihood of success on merits of deliberate indifference claim;
(2) prisoner established that he would suffer irreparable harm absent preliminary injunction; and
(3) balance of hardships tipped in favor of prisoner.

Motion granted in part.
*1342 Aaron P. Arnzen, Byron Y. Yafuso, Cooley Godward, LLP, San Diego, CA, for Plaintiff.
Attorney General, State of California Office of the Attorney General, San Diego, CA, for Defendants.

JONES, District Judge.

Before the Court is Plaintiff Carlos Rosado's ("Plaintiff") September 3, 2004 Motion for Preliminary Injunction. On July 23, 2003, Plaintiff, an inmate currently incarcerated at Centinela State Prison ("CSP") filed a civil rights action under 42 U.S.C. § 1983 alleging that various CSP and California Department of Corrections ("CDC") officials violated his Eighth and Fourteenth Amendment rights by failing to place his name on a liver transplant list and provide other necessary care for his life-threatening liver condition. (Com pl.¶¶ 50-97.) By order dated September 3, 2004, this Court granted in part Plaintiff's ex parte Application for Temporary Restraining Order ("TRO"), requiring Defendants to provide Plaintiff with immediate medical attention. [Doc. No. 54.] Subsequently the parties stipulated to the TRO's conversion to a preliminary injunction. Plaintiff now requests that the Court issue another preliminary injunction ordering Defendant Edward Alameida, Jr. et al. ("Defendants") to ensure that Plaintiff receives evaluations at all liver transplant centers in California. Defendants oppose. An evidentiary hearing was held on October 4, 2004 at 10:30 a.m., at which time the Court requested supplemental briefing on various issues. On October 8, 2004, Plaintiff filed a First Amended Complaint ("FAC"), removing certain Defendants and adding CDC as a Defendant. [Doc. No. 82.]
All parties are represented by counsel. The Court has determined the issues presented herein are appropriate for decision without oral argument. See Civ. L.R. 7.1.d.1. For the reasons addressed below, this Court GRANTS the preliminary injunction IN PART.

The relevant facts as alleged by the parties are numerous and involve many dates. Defendants have lodged more than 1,800 pages of Plaintiff's Department of Corrections medical files. What follows is a general overview of the case's factual and procedural background.
Plaintiff was received at CSP in March 2000. (Opp'n at 2; Ex A, AGO927, 525-526.) A couple of months later, he began to experience severe abdominal pain. (Compl.¶ 18.) Soon thereafter, Plaintiff was diagnosed with hepatitis C and cirrhosis. (Pl.'s Mem. of P. & A. at 2, 4) On September 7, 2000, CSP Medical Records show, Plaintiff received treatment at the *1343 CSP Gastroenterology Clinic. (Opp'n at 2, Ex A, AGO-98)
The parties disagree on the events occurring between September 2000 and January 2001. Plaintiff claims that he made several requests for treatment and all were ignored by Defendants. (Compl.¶ 23.) Meanwhile, Defendants counter that Plaintiff repeatedly refused to be admitted to the CSP infirmary and refused to be transferred to the Corcoran correctional facility. (Opp'n at 3; Ex A, AGO-88.) Seeking to be transferred to an outside medical facility and placed on a liver transplant list, Plaintiff appealed CSP's denial to the third and final level. (Opp'n at 3; Ex A, AGO-29-30, 42-43, 88.) By February 2003, Plaintiff had achieved administrative exhaustion. (Pl.'s Mem. of P. & A. Ex. A)
Two months later, on April 4, 2003, CSP approved and Plaintiff received a partial transplant evaluation by Dr. Sammy Saab at the University of California at Los Angeles ("UCLA") School of Medicine. (Pl.'s Mem. of P. & A. at 5.) Dr. Saab reported that Dr. John Parsons at CSP had "done a very good job in terms of screening and providing [Plaintiff] medical care" and agreed to discuss Plaintiff's evaluation with the UCLA transplant committee. (Opp'n at 4; Ex. A, AGO-644-646) Ultimately, Plaintiff was not placed on the UCLA transplant list, because the institution had concerns about security issues associated with treating an inmate. (Arnzen's Decl. Ex. 10.)
On June 2, 2003, Plaintiff, proceeding pro se, filed his Complaint with this Court. The Complaint includes the following claims: (1) that denying Plaintiff medical care violates his Eighth Amendment rights; (2) due process and liberty violation under the 14th Amendment; (3) negligence; (4) intentional and negligent infliction of emotional distress; and (5) torts in essence. Cooley Godward was approved as pro bono counsel for Plaintiff on July 7, 2004. [Doc. No. 42.]
Plaintiff received a second transplant evaluation at the University of California at San Francisco ("UCSF") Medical Center on January 13, 2004, by Dr. Raphael Merriman, a hepatologist. (Reply at 4.) While there, Plaintiff's urine tested positive for marijuana. ( Id.) After Plaintiff's case was discussed by the liver transplant committee, there was consensus that consideration of Plaintiff's transplant would be deferred. (Opp'n at 6.) Specifically, the committee noted that Plaintiff had not been entirely compliant with past physician recommendations to accept transfer to alternate medical facilities. (Opp'n Ex. A, AGO-1655.) Additionally, Dr. Merriman recommended that Plaintiff participate in a local rehabilitation program, cease smoking cigarettes, and discontinue his use of marijuana, alcohol and other substances. ( Id. at AGO-1655-56.) Plaintiff argues that his rejection was at least in part motivated by security concerns, which Defendants did nothing to allay. (Pl's Mem. of P. & A. at 6.)
Since the visit to UCSF, Plaintiff has not been evaluated again for a transplant. However, Defendants have taken steps to arrange for a third evaluation at University of California at San Diego ("UCSD"). Plaintiff now seeks a preliminary injunction including the following instructions:
(1) Centinela staff physician will examine Plaintiff at least twice per month;
(2) treatment recommendations of staff physicians will be carried out unless unreasonable, unnecessary or refused by Plaintiff;
(3) all medications and dietary supplements prescribed by Plaintiff's treating physicians will be promptly and reliably provided to Plaintiff;
*1344 (4) Plaintiff receives complete evaluations at all California liver transplant centers, transportation to and from these centers, and illicit substance screening;
(5) Defendants will work with each liver transplant center to develop a security plan and provide security arrangements; and
(6) in accordance with the evaluations, Plaintiff will be placed on the liver transplant at those facilities, unless denied placement.
Legal Standard

The Ninth Circuit recognizes two tests for determining whether a district court should grant a preliminary injunction. Under the traditional standard, a plaintiff must show: (1) a strong likelihood of success on the merits; (2) a possibility of irreparable injury should the injunction not be granted; (3) that the balance of hardships tips in his or her favor; and in some cases (4) that an injunction advances the public interest. See Save Our Sonoran, Inc. v. Flowers, 381 F.3d 905, 911-12 (2004) (citing Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995)). Alternatively, the plaintiff may show "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Id.
It is well established that the two formulations both operate as a sliding scale, whereby a stronger showing of irreparable harm risk can compensate for a weaker likelihood of success. See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998). Moreover, they are not considered separate tests; rather they are viewed as "outer reaches of a single continuum." Id. Under either test, the moving party bears the burden of persuasion. Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 869 (2003).

A. Likelihood of Success on the Merits

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

"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 deliberate indifference claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). Similarly, a showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989). In order to prevail on a claim involving *1345 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 they chose this course in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996). Prison officials must respond reasonably to a prisoner's medical needs. See Farmer v. Brennan, 511 U.S. 825, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ( "[P]rison officials who actually knew of a substantial risk to inmate health or safety, may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.").
In the present matter, Plaintiff contends that Defendants' refusal to make accommodations for him to be evaluated for, and ultimately placed on a list for, a liver transplant demonstrates deliberate indifference to his serious medical condition. However, in the more than four years Plaintiff has resided at CSP, Plaintiff has received extensive medical attention and he has been taken for transplant evaluations at two major academic medical centers-UCLA and UCSF. Therefore, this Court must ultimately determine whether Defendants' course of action was (1) reasonable and (2) medically acceptable in light of all circumstances.
A district court in the Northern District of Texas was recently confronted with a very similar case. Campbell v. Martinez, et al., 03cv299, 2003 WL 22410576, 2003 U.S. Dist. LEXIS 23358 (N.D.Tex. May 14, 2003). There, a federal prisoner, diagnosed with hepatitis C and advanced cirrhosis, was denied in his request for a liver transplant and later brought a deliberate indifference claim in forma pauperis. ( Id. 2003 WL 22410576 at *1, 2003 U.S. Dist. LEXIS 23358 at *1-2.) According to the plaintiff, the prison had chosen a less expensive course of treatment in response to institutional budgetary pressures. ( Id. at 2003 WL 22410576 *1, 2003 U.S. Dist. LEXIS 23358 *5.) After denying the plaintiff's request for a preliminary injunction, the Texas court dismissed the action sua sponte for failure to state a viable claim. ( Id. at 2003 WL 22410576 *1, 2003 U.S. Dist. LEXIS 23358 *2-3.) In rendering its decision, the court relied in part on expert testimony that the Bureau of Prisons had been unable to find outside medical facilities willing to contract for inmate organ transplants. ( Id. at 2003 WL 22410576 *3, 2003 U.S. Dist. LEXIS 23358 *14.) Additionally, the court found that the plaintiff had advanced no facts to support his allegation that the prison's decision was based on costs. ( Id. at 2003 WL 22410576 *3, 2003 U.S. Dist. LEXIS 23358 *12.)
In an earlier case, also involving a prison's refusal to schedule an inmate for a liver transplant evaluation, a New Hampshire district court dismissed the prisoner's deliberate indifference claim on summary judgment. Dionne v. Brodeur, 94-125-JD, 1995 U.S. Dist. LEXIS 17063 (D.N.H. November 8, 1995). The court relied in part on undisputed evidence showing that three physicians had concluded that the plaintiff was not a likely candidate for the transplant. ( Id. at *11.) Additionally, the Court found that the plaintiff had failed to present any evidence indicating (1) that the defendants had acted with a constitutionally culpable state of mind or (2) that their medical conclusions were questionable. ( Id.)