Andre Floyd v. J. Dang , 577 F. App'x 696 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE RENE FLOYD, No. 12-15967
Plaintiff - Appellant, D.C. No. 2:08-cv-02346-WBS-
CKD
v.
J. DANG, Doctor, CSP Corcoran; JOHN MEMORANDUM*
R. CANTWELL, Doctor, CSP Corcoran;
SOGGE, Doctor, CSP Sacramento;
HASADSRI, Doctor, CSP Corcoran,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted May 15, 2014
San Francisco, California
Before: RIPPLE,** SILVERMAN, and GOULD, Circuit Judges.
Andre Floyd appeals from the district court’s grant of summary judgment to
Defendants in his suit under 42 U.S.C. § 1983 alleging deliberate indifference to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
his medical needs in violation of the Eighth Amendment. We review a district
court’s grant of summary judgment de novo. Lemire v. California Dep't of Corr.
& Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We have jurisdiction under 28
U.S.C. § 1291, and we afffirm.
Floyd first contends that the decision of doctors Dang, Cantwell, and
Hasadsri not to test Floyd for Hepatitis C between 2001 and 2004 was deliberate
indifference in view of four identified risk factors: Floyd’s race, the prevalence of
Hepatitis C in the California State Prisons at that time, Floyd’s history as an
intravenous drug user, and a blood test, done for unrelated reasons, that showed
elevated levels of liver enzymes in Floyd’s blood. Each of these factors is
correlated to a degree with Hepatitis C. Floyd argues that the doctors’ failure to act
in response to a known medical risk constituted deliberate indifference to his
serious medical needs. See Helling v. McKinney, 509 U.S. 25 (1993) (holding that
second-hand smoke created a risk of medical harm that could support an 8th
Amendment claim); Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)
cert. granted, judgment vacated sub nom. City of Reno v. Conn, 131 S. Ct. 1812,
179 L. Ed. 2d 769 (U.S. 2011) and opinion reinstated, 658 F.3d 897 (9th Cir.
2011) (holding that prison official’s failure to respond to warning signs of suicide
could constitute deliberate indifference). We reject this claim. Although Floyd has
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shown that some risk existed, he has not presented evidence that the choice not to
administer the Hepatitis C test was “medically unacceptable under the
circumstances,” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), or outside
general standards of medical care. Some evidence that shows what level of risk
that a prisoner is infected with Hepatitis C would be medically unacceptable to
ignore is required for us to determine that a reasonable jury could find that a
doctor’s treatment was outside of the standard of care. Helling, 509 U.S. at 36
(“[T]he prisoner must show that the risk of which he complains is not one that
today’s society chooses to tolerate.”). Without such evidence, we must affirm the
district court’s grant of summary judgment to doctors Dang, Cantwell, and
Hasadsri.
Floyd next contends that Dr. Sogge’s choice at the start of treatment to
administer less than the recommended dose of ribavirin and Dr. Sogge’s later
decision to discontinue treatment after three months constituted deliberate
indifference. But Dr. Sogge testified credibly that the dosage guidelines on which
Floyd rests his claim require the application of medical judgment, and that in Dr.
Sogge’s considered opinion, the risks of potential side effects or interactions with
other drugs that were then being given to Floyd was too great to justify the full
dose of ribavirin. Dr. Sogge also testified that the guidelines state that ribavirin
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treatment should be terminated unless a certain level of response is seen. Floyd
experienced some positive results, but in Dr. Sogge’s view they were not enough to
justify continued treatment. Based on this testimony, Floyd cannot make out a
claim for deliberate indifference against Dr. Sogge. Jackson, 90 F.3d at 332 (“[A]
plaintiff's showing of nothing more than a difference of medical opinion as to the
need to pursue one course of treatment over another was insufficient, as a matter of
law, to establish deliberate indifference.”) (internal quotation marks removed).
AFFIRMED
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