The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 JASON ROBERT HODGE, Case No. 2:19-cv-01956-JDP (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS’ MOTION TO
13 v. DISMISS BE DENIED
14 KEVIN RUETER, et al., ECF No. 56
15 Defendants. ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL AND
16 MISCELLANEOUS MOTIONS
17 ECF Nos. 53, 54, & 58
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19 In April 2017, plaintiff seriously injured his shoulder when he was shot with rubber
20 bullets during an altercation at Corcoran State Prison. Two physicians recommended surgery to
21 repair the injury. Plaintiff alleges that defendants, all members of CDCR’s Statewide Medical
22 Authorization Review Team committee (“the committee”), violated his Eighth Amendment rights
23 by refusing to authorize surgery and directing his physician to provide a steroid injection.
24 Defendants now move to dismiss the first amended complaint, arguing that both the written
25 decision denying surgery and related committee meeting minutes—neither of which were filed
26 with the amended complaint—demonstrate that they were not deliberately indifferent to
27 plaintiff’s serious medical needs. Additionally, they argue that qualified immunity shields them
28 from suit. Defendants’ arguments rest on extrinsic documents that may not be considered in
1 adjudication their motion. I therefore recommend that defendants’ motion be denied.
2 Miscellaneous Motions
3 In addition to defendants’ motion, plaintiff has filed three motions that each contain
4 multiple requests for relief. First, he asks that the court reconsider its May 17, 2021, order
5 extending the deadline for defendants to respond to the first amended complaint. ECF Nos. 53 &
6 54. Plaintiff advances no legitimate basis for reconsideration, and the request will be denied.
7 His request to refund or excuse his obligation to pay the filing fee is also denied. ECF No.
8 53. Prisoners proceeding in forma pauperis, such as plaintiff, can file a civil action without
9 prepayment of the filing fees, but the obligation to pay the fee is not excused. 28 U.S.C.
10 § 1915(a)(2), (b)(1). Instead, prisoners proceeding in forma pauperis are permitted to pay the
11 filing fee in installments when funds are available. 28 U.S.C. § 1915(b)(1).
12 Plaintiff also requests that the court subpoena and review his medical records. ECF No.
13 53. Plaintiff is advised that any requests for discovery, including a subpoena for medical records,
14 are premature at this stage. Once a scheduling order issues, which will only happen after
15 defendants file an answer, the parties will be permitted to serve requests for discovery pursuant to
16 Federal Rules of Civil Procedure 26-37 and 45. Plaintiff is advised, however, that the court will
17 not direct the U.S. Marshal to serve a subpoena on a third-party absent a showing that the
18 information sought is not readily available to him and cannot be obtained from defendants.
19 Plaintiff’s request to set a trial date, ECF No. 58, is also denied as premature. If
20 necessary, a trial date will be set after completion of discovery and resolution of any dispositive
21 motions.
22 Finally, plaintiff makes his third request for the court to appoint him counsel. ECF Nos.
23 53 & 58. As plaintiff was previously notified, he does not have a constitutional right to appointed
24 counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court
25 lacks the authority to require an attorney to represent plaintiff. See Mallard v. U.S. District Court
26 for the S. Dist.of Iowa, 490 U.S. 296, 298 (1989). The court may request the voluntary assistance
27 of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any
28 person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a means to
1 compensate counsel, the court will seek volunteer counsel only in exceptional circumstances. In
2 determining whether such circumstances exist, “the district court must evaluate both the
3 likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se
4 in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal
5 quotation marks and citations omitted). Plaintiff does not demonstrate that these factors weigh in
6 favor of appointing him counsel, and his motion is denied.
7 Motion to Dismiss
8 A. Legal Standards
9 “Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable
10 legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Somers v.
11 Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). To survive a motion to dismiss for failure to state
12 a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”
13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when a
14 plaintiff “pleads factual content that allows the court to draw the reasonable inference that the
15 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
16 In deciding motions under Rule 12(b)(6), the court generally considers only allegations
17 contained in the pleadings, exhibits attached to the complaint, and matters properly subject to
18 judicial notice, and construes all well-pleaded material factual allegations in the light most
19 favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d
20 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). In certain
21 circumstances, the court may also consider documents referenced in—but not included with—the
22 complaint or that form the basis of plaintiff’s claims. United States v. Ritchie, 342 F.3d 903, 907
23 (9th Cir. 2003).
24 B. Discussion
25 Defendants’ motion advances three arguments, each reliant on information outside the
26 amended complaint. First, defendants argue that plaintiff cannot plausibly allege that nine of the
27 twelve defendants personally participated in the decision to deny surgery, which is the basis for
28 his Eighth Amendment claim. They contend that the minutes from the committee’s April 16,
1 2019, meeting—the meeting at which the committee considered plaintiff’s request—demonstrates
2 that only three of the twelve defendants were present.1 ECF No. 56-1 at 5-6. Second, they argue
3 that the committee’s minutes and written decision refute plaintiff’s allegations that defendants
4 deliberately disregarded his serious medical needs. Id. at 6-7. According to defendants, the
5 minutes and decision show that the committee considered the two physicians’ recommendations
6 but ultimately concluded that conservative treatment should be pursued prior to undergoing
7 surgery. Id. Third, they argue that they are entitled to qualified immunity because it is not clearly
8 established that deferring surgery in favor of more conservative treatment violates the Eighth
9 Amendment.2 Id. at 8-9.
10 Although the committee’s minutes and decision were not filed with the complaint,
11 defendants argue that the documents should be incorporated by reference. Id. at 3-4.
12 “[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents as
13 though they are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,
14 1002 (9th Cir. 2018). Under this doctrine, a document may be incorporated into the complaint “if
15 the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s
16 claim.” Ritchie, 342 F.3d at 907. However, incorporation is not appropriate if the document
17 “merely creates a defense to the well-pled allegations in the complaint.” Khoja, 899 F.3d at 1002.
18 Because the doctrine risks being used as “a tool for defendants to short-circuit the resolution of a
19 well-pleaded claim,” the Ninth Circuit has urged that the doctrine be “approached with caution.”
20 Id.
21 The amended complaint does not specifically reference the committee’s written decision
22 or its meeting minutes. Nevertheless, defendants contend that the documents can be considered
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24 1 Specifically, defendants argue defendants Boparai, Yang, T. Taylor, Bal, L. Taylor,
Barrow, Igbinosa, Arca, and Stepke were not present, and did not participate in the committee’s
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decision to deny plaintiff’s request for surgery. ECF No. 56-1 at 5. They contend that only
defendants Tafoya, dos Santos-Chen, Conanan, and third-party Ralston were present and involved
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in the decision. Id.
27 2 This argument is framed from information contained in the committee’s April 16, 2019,
meeting minutes and not the amended complaint’s allegations. See ECF No. 23 at 3-4; ECF No.
28 56-1 at 14.
1 in resolving their motion because the amended complaint “relies on [the] committee’s meeting
2 and decision.” ECF No. 56-1 at 3.
3 Although plaintiff alleges that defendants acted with deliberate indifference by refusing to
4 authorize surgery, the committee’s written decision does not, and surely cannot, form the basis of
5 his Eighth Amendment claims. The decision is comprised almost entirely of boilerplate language
6 summarizing the evidence that the committee considers and the regulations that govern its
7 decision. Aside from noting plaintiff’s name, CDCR number, and his request for a left total
8 shoulder replacement, the decision is devoid of information specific to plaintiff. It does not
9 identify his medical condition, much less specific medical findings or records. Indeed, the
10 decision’s explanation for denying surgery is limited to a single, conclusory sentence, consisting
11 of nothing more than boilerplate text that could apply to any decision denying a request for
12 treatment.3 ECF No. 56-1 at 13. In any event, consideration of the decision provides defendants
13 no benefit; nothing in the decision undermines plaintiff’s claim that defendants were deliberately
14 indifferent to his medical needs.
15 There is also no basis for incorporating the committee’s meeting minutes into the
16 amended complaint. That document includes a brief summary of plaintiff’s symptoms and
17 limitations, followed by the committee’s conclusion that conservative treatment should be
18 exhausted prior to authorizing surgery. ECF No. 56-1 at 14. Although that information might
19 prove helpful in mounting a defense, the document itself is not the basis of plaintiff’s claims; his
20 claims are predicated on defendants’ decision to deny surgery despite knowledge that two
21 orthopedic specialists had conducted an evaluation and determined surgery to be medically
22 necessary. ECF No. 23 at 3-4. In a similar vein, the minutes cannot be considered to establish
23 that certain defendants did not participate in the decision and therefore could not have acted with
24 deliberate indifference. See Khoja, 899 F.3d at 1003 (holding that “if the document merely
25 creates a defense to the well-pled allegations in the complaint, then that document did not
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27 3 That sentence provides as follows: “In this case, SMART found that because the service
requested does not appear to prevent premature death, prevent illness, and/or alleviate severe pain
28 the above-mentioned patient is not eligible for the proposed service(s).” ECF No. 56-1 at13.
1 | necessarily form the basis of the complaint.”).
2 Accordingly, it is hereby ORDERED that:
3 1. Plaintiff?s miscellaneous motions, ECF Nos. 53, 54, & 58, are denied;
4 2. The Clerk of Court shall randomly assign a United States District Judge to this case.
5 Further, it is RECOMMENDED that defendant’s motion to dismiss, ECF No. 56, be
6 | denied.
7 I submit these findings and recommendations to the district judge under
8 | 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States
9 | District Court, Eastern District of California. The parties may, within 14 days of the service of
10 | the findings and recommendations, file written objections to the findings and recommendations
11 | with the court. Such objections should be captioned “Objections to Magistrate Judge’s Findings
12 | and Recommendations.” The district judge will review the findings and recommendations under
13 28U.S.C. § 636(b)(1)(C).
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1s IT IS SO ORDERED.
16 | q Sty —
Dated: _ February 25, 2022
17 JEREMY D. PETERSON
18 UNITED STATES MAGISTRATE JUDGE
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