# Sekerke v. Leo

> District Court, S.D. California · February 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10080483

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10080483

## How later opinions describe it (automated extraction)

- holding that supplemental state law tort claims alleged in a § 1983 suit 11 against both the individual and public entity defendants may be dismissed if the plaintiff 12 “fails to allege compliance with California tort claims procedures” before filing suit
- noting that “the sua sponte screening and dismissal procedure is 24 cumulative of … any … Rule 12(b)(6) motion that [a defendant] may choose to bring.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 KEITH WAYNE SEKERKE, Case No.: 3:19-cv-0034-GPC-RBB
Booking No. 18165284,
12
ORDER GRANTING IN PART AND
Plaintiff,
13 DENYING IN PART PLAINTIFF’S
vs. MOTION TO FILE SECOND
14
AMENDED COMPLAINT

15 [ECF No. 35];
ARTURO LEO; MARK O’BRIEN;
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SHERIFF WILLIAM GORE, ORDER GRANTING MOTION TO
17 Defendants. QUASH [ECF No. 45];

18
ORDER DENYING PLAINTIFF’S
19 MOTION FOR A TEMPORARY
RESTRAINING ORDER AND
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EMERGENCY INJUNCTION
21 [ECF No. 47].

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Before the Court is Plaintiff’s motion for leave to file a Second Amended
23
Complaint (“SAC”). ECF No. 35. Defendant Sheriff William Gore (“Gore”) filed an
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opposition on January 2, 2020. ECF No. 42.1
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1 The Court issued a briefing schedule on November 27, 2019 noting that no reply would be permitted.
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1 Additionally, before the Court are Specially Appearing Individuals Motion to
2 Quash Service and Dismiss, ECF No. 45, and Plaintiff’s motion for a temporary
3 restraining order (“TRO”) and emergency injunction, ECF No. 47. Defendant Gore filed
4 an opposition to Plaintiff’s motion for a TRO and emergency injunction on January 14,
5 2020. ECF No. 50. Plaintiff filed a reply. ECF No. 52.
6 The Court hereby GRANTS in part and DENIES in part Plaintiff’s motion for
7 leave to file a SAC; GRANTS the motion to quash; and DENIES motion for a TRO and
8 emergency injunction.
9 I. Procedural Background
10 On January 7, 2019, Plaintiff proceeding pro se and in forma pauperis, filed this
11 lawsuit. ECF No. 1. Plaintiff currently resides in San Diego County Jail. On February
12 25, 2019, Plaintiff filed a First Amended Complaint (“FAC”) bringing claims under 42
13 U.S.C. § 1983, with supplemental state tort claims, against Arturo Leon (sued as “Arturo
14 Leo”), medical officer deputy Mark O’Brien (“Deputy O’Brien”), and Sheriff William
15 Gore. ECF No. 7 (“FAC”). In the FAC, Plaintiff argued that his right to medical care
16 had been violated due to Defendants’ policy of refusing to provide narcotics to inmates.
17 Id.
18 On August 14, 2019, Plaintiff filed a motion to join defendants Medical
19 Administrator Barbara Lee, Deputy Olsen, Sergeant A. Sevilla, and Lieutenant Laura
20 Coyne. ECF No. 21. On September 9, 2019, Plaintiff filed a motion for joinder of new
21 claims and therein only named as defendants, Arturo Leon, Mark O’Brien, and Barbara
22 Lee. ECF No. 26. On October 9, 2019, Plaintiff also filed an Ex Parte Notice of
23 Retaliation and Request for Duplicate Orders requesting, inter alia, duplicate copies of all
24 filings and court orders since July 2019. On October 11, 2019, the Court granted
25 Plaintiff’s request for copies, denied Plaintiff’s motions for joiner of new claims and new
26 defendants, and directed Plaintiff to file a motion for leave to file a second amended
27 complaint if he wished to add defendants and claims to this case. ECF No. 30. On
28 November 27, 2019, Plaintiff filed a motion for leave to file a Second Amended
1 Complaint (“SAC”). ECF No. 35.
2 In the FAC, Plaintiff asserted that he suffers from health conditions requiring pain
3 medications, and alleged that defendants Arturo Leon (sued as “Arturo Leo”), Mark
4 O’Brien, and William Gore violated his right to adequate medical care by complying with
5 San Diego County Jail’s policy of refusing to provide narcotics to inmates (“no narcotic
6 policy”). FAC at 3, 4.
7 In the SAC, Plaintiff names as defendants Arturo Leon (“Dr. Leon”) and Mark
8 O’Brien (“Dr. O’Brien”), and seeks to add as new defendants, Jon Montgomery (“Dr.
9 Montgomery”) and Dane Olsen (“Deputy Olsen”). Plaintiff does not name William Gore
10 as a defendant.
11 II. Factual Background
12 Plaintiff arrived at San Diego County Jail on October 11, 2018. Plaintiff alleges
13 that all Defendants are practicing a blanket policy of “no narcotic pain medication in
14 violation of the Eighth Amendment.” SAC at 3.2 Plaintiff alleges that, after his arrival,
15 Plaintiff’s pharmacy faxed Plaintiff’s prescriptions to the jail but Plaintiff was never
16 provided with his prescription medication. Id. at 9. Plaintiff argues that there is “no
17 penological purpose” for this policy and that “[s]uch a blanket policy is unconstitutional.”
18 Id. at 4. Plaintiff also alleges medical negligence and malpractice claims under the
19 California Government Tort Claims Act, due to the increase in his blood pressure as a
20 result of the “severe pain” and Dr. Leon’s denial of morphine. Id. at 4, 5.
21 a. October through November 2018
22 In the SAC, Plaintiff alleges that he was denied medical care between October and
23 November of 2018 based on the following allegations: (1) Plaintiff developed MRSA3
24 infection within a day of arriving to jail facility; and (2) Plaintiff has been denied
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2 Due to the inconsistent paragraph numbering, the Court refers to the ECF pagination for the SAC.
27 3 The Merriam-Webster online dictionary defines "MRSA" to mean "methicillin-resistant
Staphylococcus aureus." Merriam-Webster, https://www.merriam-webster.com/dictionary/MRSA (last
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1 prescription medication to manage the pain related to his opioid withdrawals.
2 Plaintiff alleges that as a result of the denial of the prescription medication, he has
3 “suffered severely”; his “sleep is denied”; and “often times can’t even focus on reading a
4 book due to the pain.” Id. Plaintiff states that his “[d]aily activities such as putting on
5 clothes, cleaning, and showering can not be done without suffering through severe pain”
6 and that his “blood pressure has dramatically increased.” Id. Plaintiff also alleges that he
7 suffers from cervical and spinal stenosis, degenerative disk disease, scoliosis, and severe
8 pain and inflammation in his thoracic spine. Id. at 4, 5.
9 Dr. Leon
10 With respect to Dr. Leon, Plaintiff brings a denial of medical care claim based on
11 his allegation that Dr. Leon failed to provide Plaintiff with any treatment for the MRSA
12 infection and as a result, Plaintiff’s infection worsened for three months until November
13 30, 2018 when a judge ordered Plaintiff to be seen by a medical professional. Id. at 6.
14 Plaintiff alleges that due to Dr. Leon’s failure to provide treatment, Plaintiff has sustained
15 a permanent black scar on his ankle and permanent feelings of a “numb-like sensation to
16 the touch that sends a minor painful sensation to the foot.” SAC at 6.
17 Plaintiff also brings a personal injury claim against Dr. Leon for refusing to taper
18 Plaintiff off of his opioid pain management medications, since, as a result, Plaintiff
19 suffered from extreme withdrawal systems and on November 5, 2018, Plaintiff collapsed
20 and hit his head on a steel door. Id. at 9. Paramedics were called and Plaintiff was sent
21 by ambulance to the UCSD hospital. Id. Plaintiff further alleges that his medication,
22 Lyrica, warns users to “[a]void abrupt withdrawal. Gradually taper over 1 week.”
23 Plaintiff further alleges that his morphine medication also warns against abrupt
24 withdrawal. Id. at 9.
25 Plaintiff also brings a medical malpractice claim under the California Tort Claims
26 Act based on an October 13, 2018 appointment with Dr. Leon. Plaintiff alleges that Dr.
27 Leon refused to taper Plaintiff off his prescribed opioid pain management medication,
28 and instead prescribed nonsteroidal anti-inflammatory drug (“NSAID”) medication which
1 Plaintiff alleges subjected Plaintiff’s liver and kidneys to unnecessary risk of harm. Id. at
2 8.
3 Dr. Montgomery and Deputy O’Brien
4 Plaintiff alleges that Dr. Montgomery is responsible for the jail’s policies and has
5 instructed jail physicians to deny pain medication for inmates. Id. at 7. Specifically,
6 Plaintiff alleges that Dr. Montgomery has ordered Plaintiff’s physician, Dr. Peter
7 Freedland, to deny Plaintiff narcotic pain medication, including morphine, and MRI
8 examinations. Id. Plaintiff alleges that Dr. O’Brien has also continued to deny
9 treatments ordered by the jail physician. Id.
10 Deputy Olsen
11 Plaintiff alleges a retaliation claim against Deputy Olsen, claiming that Deputy
12 Olsen placed Plaintiff in administrative segregation one week after Plaintiff filed the
13 original complaint in this Court. SAC at 10. Plaintiff alleges this was retaliatory and
14 fabricated accusations to hold Plaintiff in administrative segregation since Plaintiff had
15 not violated any rule meriting this treatment. SAC at 10.
16 San Diego County
17 Plaintiff alleges that County of San Diego is liable since all other Defendants were
18 acting as agents, employees, or co-conspirators of the County. SAC at 11.
19 III. Motion to Quash
20 Dr. Montgomery and Deputy Olsen argue that this Court should quash service as to
21 them. Plaintiff does not oppose.
22 Due to clerical error, Plaintiff’s motion for leave to file a SAC was processed as a
23 standalone Second Amended Complaint.4 On December 10, 2019, the Court corrected
24 this error, noting that a summons was inadvertently issued and that Plaintiff was not
25 required to complete service of his motion. ECF No. 37. However, on December 20,
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4 In Plaintiff’s filing, the SAC preceded the motion for leave to file the SAC. The motion was included
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1 2019, the U.S. Marshals personally served Dr. Montgomery with a copy of Plaintiff’s
2 motion and Deputy Olsen received the same documents in his workplace mail on
3 December 19, 2019. ECF No. 45-1 at 3.
4 The temporary issuance of the defective summons was withdrawn by this Court
5 prior to the service of said defective summons on Dr. Montgomery and Deputy Olsen,
6 thereby rendering the service invalid. Accordingly, the motion to quash the service of the
7 defective summons on both Deputy Olsen and Dr. Montgomery is GRANTED.
8 IV. Motion for Leave to File a Second Amended Complaint
9 Defendant argues that Plaintiff’s motion for leave to file a SAC should be denied
10 as to the previously-unnamed individual defendants, Deputy Olsen and Dr. Montgomery,
11 since the claims against them are outside the scope of the present suit. Plaintiff opposes.
12 a. Legal Standard
13 Under Federal Rule of Civil Procedure (“Rule”) 15(a), leave to amend a complaint
14 after a responsive pleading has been filed may be allowed by leave of the court and “shall
15 freely be given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182
16 (1962); Fed. R. Civ. P. 15(a). Granting leave to amend rests in the sound discretion of
17 the trial court. Int'l Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761
18 F.2d 1386, 1390 (9th Cir. 1985). The “rule favoring liberality in amendments to pleadings
19 is particularly important for the pro se litigant.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th
20 Cir. 2000) (internal quotation marks omitted).
21 Because Rule 15(a) favors a liberal policy, the nonmoving party bears the burden
22 of demonstrating why leave to amend should not be granted. Genentech, Inc. v. Abbott
23 Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989). In assessing the propriety of an
24 amendment, courts consider several factors: (1) undue delay, (2) bad faith or dilatory
25 motive; (3) repeated failure to cure deficiencies by amendments previously permitted; (4)
26 prejudice to the opposing party; and (5) futility of amendment. Foman, 371 U.S. at
27 182; United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). These
28 factors are not equally weighted; the possibility of delay alone, for instance, cannot
1 justify denial of leave to amend, DCD Programs, 833 F.2d at 186, but when combined
2 with a showing of prejudice, bad faith, or futility of amendment, leave to amend will
3 likely be denied. Bowles v. Reade, 198 F.2d 752, 758 (9th Cir. 1999). “Futility alone can
4 justify the denial of a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808
5 (9th Cir. 2004).
6 b. Supplemental State Law Medical Malpractice Claims
7 Plaintiff alleges medical malpractice claims under the California Tort Claims Act
8 against Dr. Arturo Leon on the basis that Dr. Leon refused to taper Plaintiff off his
9 prescribed opioid pain medication and prescribed medication in contradiction with
10 Plaintiff’s gastrointestinal reflux disease.
11 “It is . . . clear that section 1915(e) not only permits but requires a district court to
12 [sua sponte] dismiss an in forma pauperis complaint” at any time if the court determines
13 that it fails to state a claim. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en
14 banc) (citing 28 U.S.C. § 1915(e)(2)(B)(ii); see also Chavez v. Robinson, 817 F.3d 1162,
15 1167 (9th Cir. 2016) (“The statute governing IFP filings requires a court to dismiss an
16 action ‘at any time’ if it determines that the complaint ‘seeks monetary relief against a
17 defendant who is immune from such relief.’”) (citing 28 U.S.C. § 1915(e)(2)(B)(iii)), and
18 even “before the defendants have been served and affirmatively raised the issue in a
19 responsive pleading.”). “The standard for determining whether a plaintiff has failed to
20 state a claim upon which relief can be granted under 1915(e)(2)(B)(ii) is the same as the
21 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.
22 Carter, 668 F.3d 1108, 1112 (9th Cir., 2012); Teahan v. Wilhelm, 481 F. Supp. 2d 1115,
23 1119 (S.D. Cal. 2007) (noting that “the sua sponte screening and dismissal procedure is
24 cumulative of … any … Rule 12(b)(6) motion that [a defendant] may choose to bring.”).
25 Before commencing a lawsuit against a California state or local public entity or its
26 employee based on tort liability or for any claim for money or damages, the California
27 Tort Claims Act requires a plaintiff to first present a written claim to the public entity.
28 See Gong v. City of Rosemead, 226 Cal. App. 4th 363, 374 (2014); see also City of
1 Stockton v. Superior Court, 42 Cal. 4th 730, 738 (2007). Claims for personal injury and
2 property damages must be presented within six months after accrual; all other claims
3 must be presented within one year. City of Stockton, 42 Cal. 4th at 738. A plaintiff
4 cannot file a lawsuit until the written claim has been acted upon, or deemed rejected, by
5 the board of the public entity. State of California v. Superior Court (Bodde), 32 Cal. 4th
6 1234, 1239 (2004). “[S]ubmission of a claim to a public entity pursuant to [the
7 California Tort Claims Act] ‘is a condition precedent to a tort action and the failure to
8 present the claim bars the action.’ ” Id. at 1240 (quoting Phillips v. Desert Hosp. Dist., 49
9 Cal. 3d 699, 708 (1989)); see also Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627
10 (9th Cir. 1988) (holding that supplemental state law tort claims alleged in a § 1983 suit
11 against both the individual and public entity defendants may be dismissed if the plaintiff
12 “fails to allege compliance with California tort claims procedures” before filing suit).
13 “A cause of action that is subject to the statutory claim procedure must allege
14 either that the plaintiff complied with the claims presentation requirement, or that a
15 recognized exception or excuse for noncompliance exists.” Gong, 226 Cal. App. 4th at
16 374; see also Bodde, 32 Cal. 4th at 1243 (“[A] plaintiff must allege facts demonstrating
17 or excusing compliance with the claim presentation requirement. Otherwise, his
18 complaint is subject to a general demurrer for failure to state facts sufficient to constitute
19 a cause of action.”); accord Carter v. Gastelo, 2019 WL 7194558, at *8 (C.D. Cal. Dec.
20 23, 2019); Jackson v. City of San Diego, 2019 WL 3306296, at *5 (S.D. Cal. July 23,
21 2019). California courts have applied this exhaustion requirement to claims of denial of
22 timely medical care. See Wright v. State of California, 122 Cal. App. 4th 659, 664
23 (2004). “The exhaustion of administrative remedies requirement furthers several
24 important societal and governmental interests” including “bolstering administrative
25 autonomy, mitigating damages, giving agencies opportunity to make factual findings,
26 encouraging settlement, filtering out frivolous claims, fostering better prepared litigation,
27 and promoting judicial economy.” Id. at 666.
28
1 Here, state law provides an administrative remedy. However, in the SAC, Plaintiff
2 fails to allege that he submitted his medical care claim to the administrative process
3 provided by the San Diego County Sheriff’s Department thereby exhausting the requisite
4 administrative grievance procedure requirements prior to filing this action. “It is well
5 settled as a general proposition that a litigant will not be afforded relief in the courts
6 unless and until he has exhausted available administrative remedies.” In re Muszalski, 52
7 Cal. App. 3d 500, 503 (Ct. App. 1975). Plaintiff has failed to allege his compliance with
8 California tort claims procedures requiring exhaustion of administrative remedies, and
9 therefore Plaintiff is DENIED leave to amend his complaint to include his claim for state
10 supplemental medical malpractice (“Count 4”).
11 c. Retaliation Claim Against Deputy Dane Olsen
12 With respect to Deputy Olsen, Plaintiff alleges a retaliation claim. Plaintiff alleges
13 that Deputy Olsen came to Plaintiff’s cell on July 7, 2019 with five other deputies and
14 placed Plaintiff in administrative segregation. ECF No. 35 at 10. Plaintiff alleges this
15 was retaliatory; that Deputy Olsen fabricated accusations to hold Plaintiff in
16 administrative segregation since Plaintiff had not violated any rule meriting this
17 treatment; and that he was placed in administrative segregation “about one week”
18 following the service of Plaintiff’s original complaint.5 SAC at 10. Defendant counters
19 Plaintiff’s retaliation claim should not be permitted because (1) Plaintiff fails to allege a
20 retaliation claim – specifically by failing to allege that Defendant’s actions did not
21 advance legitimate goals of the correctional institution, and (2) the decision to move
22 Plaintiff to administrative segregation in July 2019 is distinct from the issues raised in the
23 FAC and should therefore be dismissed under Rule 15(d) as a separate, distinct and new
24 cause of action.
25 Of fundamental import to prisoners are their First Amendment “right[s] to file
26

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5 The summonses for the FAC were returned executed on June 24, 2019, June 26, 2019, and July 3,
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1 prison grievances,” Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), and to “pursue
2 civil rights litigation in the courts.” Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir.
3 1995). Without those bedrock constitutional guarantees, inmates would be left with no
4 viable mechanism to remedy prison injustices. Rhodes v. Robinson, 408 F.3d 559, 567
5 (9th Cir. 2005). “Within the prison context, a viable claim of First Amendment
6 retaliation entails five basic elements: (1) An assertion that a state actor took some
7 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and
8 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)
9 the action did not reasonably advance a legitimate correctional goal.” Id. at 567-68.
10 Challenges to restrictions of first amendment rights must be analyzed in terms of
11 the legitimate policies and goals of the correctional institution in the preservation of
12 internal order and discipline, maintenance of institutional security, and rehabilitation of
13 prisoners. See Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981). “However, the
14 limitation must be no greater than is necessary to protect the particular governmental
15 interest involved.” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). For Plaintiff to
16 state a cause of action, “he must do more than allege retaliation because of the exercise of
17 his first amendment rights in bringing and assisting in civil rights litigation; he must also
18 allege that the prison authorities' retaliatory action did not advance legitimate goals of the
19 correctional institution or was not tailored narrowly enough to achieve such goals.” Id.
20 Here, Plaintiff alleges that Olsen’s actions were retaliatory since Olsen and other
21 prison officials were motivated by Plaintiff’s filing of the FAC. Defendant argues that
22 there were legitimate grounds for Plaintiff’s placement in administrative segregation and
23 points to Plaintiff’s prior pleading describing other inmates’ complaints about Plaintiff
24 causing problems with respect to the housing situation. ECF No. 21 at 8. Plaintiff argues
25 that these were “fabricated accusations” and merely served as pretext for Defendant’s
26 retaliatory actions. ECF No. 35 at 10. Further, Plaintiff alleges that the decision to place
27 him in administrative segregation immediately followed his decision to file pleadings in
28 this Court. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“Because direct
1 evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a
2 chronology of events from which retaliation can be inferred is sufficient to survive
3 dismissal”); Pratt v. Rowland, 65 F.3d 802, 808 (“[T]iming can properly be considered as
4 circumstantial evidence of retaliatory intent[.]”).
5 At this stage, Plaintiff has sufficiently alleged a retaliation claim and is therefore
6 permitted to amend his pleading to include this claim. See e.g., Watison, 668 F.3d at
7 1115 (9th Cir. 2012) (plaintiff sufficiently alleged retaliation where he alleged that prison
8 officials placed him in administrative segregation after plaintiff filed a grievance against
9 officials); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (overturning lower court’s
10 summary dismissal of retaliation claim where plaintiff claimed that prison authorities’
11 actions were “arbitrary and capricious”).
12 Defendant argues that the retaliation claim against Deputy Olsen should be denied
13 under Rule 20 since the claim does not arise out of the same “transaction, occurrence, or
14 series of transactions or occurrences” as the FAC, or alternatively, denied under Rule 15
15 as a supplemental pleading that introduces a “separate, distinct and new cause of action.”
16 However, Plaintiff alleges retaliation for filing the present lawsuit and therefore, the
17 claim does not qualify as a “separate, distinct and new cause of action.” See e.g.,
18 Watison, 668 F.3d 1108 (considering plaintiff’s Eighth Amendment claims alongside
19 plaintiff’s First Amendment retaliation claims and holding that plaintiff should be
20 permitted to amend his retaliation claims). Therefore, Plaintiff is GRANTED leave to
21 amend his complaint to include “Count 6” for retaliation.
22 d. Violation of Right to Medical Care Claim Against Dr. Montgomery
23 Plaintiff brings a claim of violation of right to medical care against Dr.
24 Montgomery on the basis that he is the current Medical Director of the San Diego County
25 Jail and is therefore responsible for instructing jail physicians to uphold the “no narcotic”
26 policy; Plaintiff also specifically alleges that Dr. Montgomery denied the pain
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1 management treatment prescribed by non-party jail physician Dr. Peter Freedland.
2 Defendant counters that Dr. Olsen is an improper defendant since Dr. Olsen was not an
3 employee of the San Diego County Jail between October through November 2018, and
4 additionally, Plaintiff’s claims are futile.
5 “Inmates who sue prison officials for injuries suffered while in custody may do so
6 under the Eighth Amendment’s Cruel and Unusual Punishment Clause, or if not yet
7 convicted, under the Fourteenth Amendment’s Due Process Clause.” Castro v. County of
8 Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (citing Bell v. Wolfish, 441 U.S.
9 520, 535 (1979)). “Under both clauses, the plaintiff must show that the . . . officials acted
10 with ‘deliberate indifference.’” Id. at 1068; see also Gordon v. Cty. of Orange, 888 F.3d
11 1118, 1124-25 (9th Cir. 2018) (inadequate medical care claims alleged by persons in
12 pretrial custody “must be evaluated under an objective deliberate indifference standard”)
13 (citing Castro, 833 F.3d at 1070).
14 “[T]he elements of a pretrial detainee's medical care claim against an individual
15 defendant under the due process clause of the Fourteenth Amendment are: (i) the
16 defendant made an intentional decision with respect to the conditions under which the
17 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering
18 serious harm; (iii) the defendant did not take reasonable available measures to abate that
19 risk, even though a reasonable official in the circumstances would have appreciated the
20 high degree of risk involved—making the consequences of the defendant's conduct
21 obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's
22 injuries.” Gordon, 888 F.3d at 1125 (9th Cir. 2018). With respect to the third element,
23 the defendant's conduct must be objectively unreasonable, a test that will necessarily
24

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26 6 Plaintiff additionally alleges that Dr. Montgomery denied MRI treatments prescribed by Dr. Freedland.
This claim regarding medical care is unrelated to the alleged “no narcotic” policy and denial of opioid
27 withdrawal pain management medication. The provision of MRI examinations does not arise from the
same facts or events that give rise to this action. Plaintiff is therefore DENIED leave to amend the
28
1 ‘turn[ ] on the facts and circumstances of each particular case.’ ” Id. at 1071. (citations
2 omitted). The “ ‘mere lack of due care by a state official’ does not deprive an individual
3 of life, liberty, or property under the Fourteenth Amendment.” Id. (citations omitted).
4 Thus, the plaintiff must “prove more than negligence but less than subjective intent—
5 something akin to reckless disregard.” Id.
6 Here, Plaintiff alleges that Dr. Montgomery has continued to enforce the “no
7 narcotic” policy, which Plaintiff alleges constitutes a denial of Plaintiff’s right to medical
8 care. The enforcement of this policy shares the same underlying facts as the alleged
9 denial of medical care that gives rise to Plaintiff’s action. In other words, in order to
10 ascertain whether Dr. Montgomery’s denial of opioid withdrawal pain management
11 medication constituted a denial of Plaintiff’s right to medical care, this Court would need
12 to engage in the same factual analysis as required by Plaintiff’s other claims against the
13 other defendants in this action – i.e., Dr. Leon, Deputy O’Brien, and San Diego County.
14 Rule 20 states that Defendants may be joined in one action if “any right to relief is
15 asserted against them jointly, severally, or in the alternative with respect to or arising out
16 of the same transaction, occurrence, or series of transactions or occurrences” and “any
17 question of law or fact common to all defendants will arise in the action.” See
18 Rule 20(a)(2)(A-B). Accordingly, to the extent that Plaintiff seeks injunctive relief
19 against Dr. Montgomery to prevent the continued enforcement of the “no narcotic”
20 policy, Plaintiff is permitted to amend his complaint to include this claim.7
21 e. Conclusion
22 In sum, for the reasons outlined above, Plaintiff is permitted to amend the
23 complaint to allege only the following claims: the individualized inadequate medical
24

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26 7 Plaintiff includes damages in his request for relief but does not specify as to which defendant. To the
extent that Plaintiff seeks damages against Dr. Montgomery, Plaintiff will not be permitted to recover
27 since Plaintiff has not alleged that Dr. Montgomery was involved in the provision of medical care
between October and November 2018. Plaintiff is limited to seeking injunctive relief against Dr.
28
1 treatment against the Dr. Leon and Deputy O’Brien between October and November
2 2018; the individualized claim against Montgomery for his enforcement of the “no
3 narcotic” policy; the personal injury claim against Dr. Leon; and the related claim against
4 San Diego County on the grounds that each defendant was acting within the scope of
5 agency, employment or conspiracy of San Diego County.
6 Accordingly, Plaintiff’s motion for leave to file a second amended complaint as to
7 Counts 1, 2, 3, 5, 6, and 7, subject to the limitations described above, is GRANTED.
8 The Clerk of Court is HEREBY ORDERED to file the SAC (ECF No. 35 at 1-
9 16) as the new operative complaint. Within 90 days of the date of this order, the Clerk is
10 ordered to issue a new summons as to the SAC upon the County of San Diego, Sherriff
11 Deputy Dane Olsen, and Doctor Jon Montgomery.8
12 V. Motion for Temporary Restraining Order and Emergency Injunction
13 Plaintiff seeks a temporary restraining order and emergency injunction in order to
14 obtain a magnetic resonance imaging (“MRI”) scan, which Plaintiff alleges was
15 recommended by a physician on a November 20, 2019 due to Plaintiff’s hydrocephalus
16 condition. Defendant opposes on the bases that (1) Plaintiff’s factual assertions are
17 unsupported and (2) Plaintiff’s motion fails to meet the threshold requirement for
18 relatedness to the present action.
19 a. Background
20 Plaintiff signed his motion for a temporary restraining order and emergency
21 injunction on January 2, 2020 and filed it on January 9, 2020. ECF No. 47. In the
22 motion, Plaintiff alleges that on November 20, 2019, he was taken to the University of
23 California San Diego (“UCSD”) Neurology Department to see a physician who
24 diagnosed Plaintiff with hydrocephalus. ECF No. 47 at 1. Plaintiff also alleges that the
25 physician also told him that Plaintiff should undergo an MRI scan, that it was a
26

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8 Plaintiff does not name Sheriff William Gore in the SAC, and therefore all claims against him are
28
1 “borderline emergency,” and that Plaintiff would be scheduled for an MRI scan in two
2 weeks. Id. In his motion, Plaintiff describes his symptoms as having headaches,
3 “sometimes seeing black and yellow spots in my vision,” and that almost everyday he
4 experiences a sensation of feeling like “the entire building is on a boat where I feel like I
5 am rocking back and forth.” Id. at 2. Plaintiff states, “It makes me feel I am going to fall
6 over. It is scary.” Id. Plaintiff requests that he be taken immediately to UCSD for an
7 MRI scan of his brain and neck and “any further treatment following the results of the
8 MRI ordered by UCSD physicians.” Id. at 1.
9 On January 14, 2020, Sheriff Gore submitted an opposition, ECF No. 50, along
10 with a declaration from Liza Macatula, the nursing supervisor for the County of San
11 Diego (Declaration of Liza Macatula, ECF No. 50-1, “Macatula Decl.”), and exhibits of
12 Plaintiff’s health and medical records. ECF No. 50-1. These records show that at
13 Plaintiff’s November 20, 2019 medical visit, the physician diagnosed Plaintiff with
14 hydrocephalus based on Plaintiff’s symptoms, which were described as “[s]ensation of
15 intermittent rocking sensation . . . [n]o vertigo . . ringing ‘like water in my ears.’ ” ECF
16 No. 50-1 at 7, 9. The physician did not recommend an MRI, but did recommend (1) a
17 follow-up hydrocephalus visit at the neurosurgery clinic, and (2) medication trial of 250
18 mg of acetazolamide, which controls symptoms associated with altitude sickness and
19 fluid accumulation. Macatula Decl. ¶¶ 17-18. Both recommendations have been
20 addressed: Plaintiff has been offered the acetazolamide medication twice daily since
21 December 21, 2019 and has refused medication on eight occasions. Id. ¶ 18, Ex. B.
22 Plaintiff is also scheduled for a follow-up visit at the neurosurgery clinic at UCSD for
23 February 28, 2020. Macatula Decl. ¶ 19.
24 Plaintiff also saw a physician on January 13, 2020 in response to Plaintiff’s
25 complaints about acetazolamide leaving a “metallic taste” in his mouth, and neck pain.
26 Id.; Exhibit C. At this visit, Plaintiff noted that he wanted morphine. ECF No. 50-1 at
27 23. The physician wrote that Plaintiff denied any headache, noting “negative headache,
28 dizziness.” ECF No. 50-1 at 24. After learning about Plainitff’s symptoms of headaches,
1 seeing black and yellow spots in his vision, and vertigo-type symptoms, Macatula
2 informed the medical staff at the San Diego County Jail. Id. ¶¶ 22, 23.
3 b. Legal Standard
4 “A preliminary injunction is an extraordinary remedy never awarded as of right.”
5 Winter v. Natural Resources Def. Council, 555 U.S. 7, 24 (2008). “In each case, courts
6 must balance the competing claims of injury and must consider the effect on each party
7 of the granting or withholding of the requested relief.” Id. (citing Amoco Prod. Co. v.
8 Gambell, 480 U.S. 531, 542 (1987) (internal citations omitted) ). As such, the “grant of a
9 preliminary injunction is a matter committed to the discretion of the trial judge[.]” Evans
10 v. Shoshone–Bannock Land Use Policy Comm'n, 736 F.3d 1298, 1307 (9th Cir. 2013).
11 This discretion allows courts to properly evaluate when it is appropriate to grant
12 preliminary relief in light of the “infinite variety of situations which may confront it.”
13 A.L.K. Corp. v. Columbia Pictures Indus., Inc., 440 F.2d 761, 763 (3d Cir. 1971).
14 District courts exercise this discretion according to a four-factor test mandated by
15 traditional principles of equity. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391,
16 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The test requires a plaintiff to demonstrate (1) a
17 likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of
18 preliminary relief, (3) that the balance of equities tips in the plaintiff's favor, and (4) that
19 an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc.,
20 555 U.S. 7, 20 (2008).
21 In performing this analysis, district courts must consider whether the nature of the
22 relief sought in the motion is sufficiently related to the claims that give rise to the action.
23 “The Ninth Circuit has formally adopted the rule . . . which requires a sufficient nexus
24 between the claims raised in a motion for injunctive relief and the claims set forth in the
25 underlying complaint itself.” Hansen v. Cty. of San Diego, 2018 WL 3584461, at *2
26 (S.D. Cal. July 26, 2018). As such, “[t]here must be a relationship between the injury
27 claimed in the motion for injunctive relief and the conduct asserted in the underlying
28 complaint for a court to grant a motion for injunctive relief; this requires a sufficient
1 nexus between the claims raised in a motion for injunctive relief and the claims set forth
2 in the underlying complaint itself.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr.,
3 810 F.3d 631, 636 (9th Cir. 2015). The relationship between the preliminary injunction
4 and the underlying complaint must be “sufficiently strong where the preliminary
5 injunction would grant relief of the same character as that which may be granted finally.”
6 Id. (citations omitted). “Absent that relationship or nexus, the district court lacks
7 authority to grant the relief requested.” Id.
8 c. Discussion
9 Here, Plaintiff has based his motion for a TRO and emergency injunction on events
10 that are outside of the scope of the events that give rise to this action – i.e., the October-
11 November 2018 provision of medical care and the “no narcotic” policy. The relief he
12 seeks in his complaint – i.e., the provision of narcotic pain management medication and
13 damages – is separate and apart from the relief he seeks in this motion. Plaintiff has
14 failed to sufficiently establish a nexus between the allegations that give rise to his motion
15 and the allegations in the underlying complaint. See e.g., Davis v. Paramo, 2016 WL
16 5682550, (S.D. Cal. Oct. 3, 2016) (rejecting plaintiff’s medical care claims that arose
17 from events that occurred after the plaintiff filed his complaint). In order to adjudicate
18 Plaintiff’s allegations regarding Defendants’ provision – or lack thereof – of medical care
19 related to Plaintiff’s hydrocephalus condition and MRI scans, the Court would be
20 required to engage in a factual analysis distinct from the analysis required by the claims
21 in the SAC. This action is limited to Plaintiff’s claims arising out of the medical care he
22 received between October and November 2018 and the related enforcement of the “no
23 narcotic” policy. The Court therefore lacks the authority to grant the relief requested. On
24 this basis, Plaintiff’s motion is DENIED.
25 Further, Plaintiff’s request appears to be moot since he has been provided medical
26 care following his November 20, 2019 appointment and has a follow-up neurosurgery
27 visit scheduled. On January 13, 2020, Plaintiff had a follow-up assessment in response to
28 his complaints about the acetazolamide medication and neck pain. ECF No. 50-1 at 23.
1 || At this visit, the Physician noted that Plaintiff was not experiencing any medical
2 ||emergency related to hydrocephalus and that Plaintiff wanted morphine medication. Id.
3 || Plaintiff is scheduled for a follow-up neurosurgery visit at UCSD on February 28, 2020.
4 || Macatula Decl. § 19.
5 In Plaintiff's Reply (ECF No. 52), Plaintiff requests a copy of all his medical
6 ||records. Plaintiff’s request is DENIED.’ Aside from being overbroad, Plaintiff is
7 || required to follow all applicable discovery rules in seeking document production by the
8 || Defendants and has failed to establish his entitlement to such documentation.
9
10 IT IS SO ORDERED.
ll Dated: February 10, 2020 2 sale Ox
12 Hon. Gonzalo P. Curiel
3 United States District Judge
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3g ||° Plaintiff also references a prior request for records. The Court has previously granted Plaintiff's prior
request for copies of pleadings and orders. ECF No. 30.
18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080483. Public record. Not legal advice.