finding 10 claims that “Seroquel is superior to Triafon, and therefore should not have been 11 discontinued” insufficient to support showing of “deliberate indifference”
How later courts described this case
- finding 10 claims that “Seroquel is superior to Triafon, and therefore should not have been 11 discontinued” insufficient to support showing of “deliberate indifference”
- “If a 7 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court 8 ||may convert the dismissal of the complaint into dismissal of the entire action.”
- Section 1915A “mandates early review—‘before docketing [] 19 or [] as soon as practicable after docketing’—for all complaints ‘in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity.’”
- “A 7 district court should not dismiss a pro se complaint without leave to amend [pursuant to 28 8 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the 9 complaint could not be cured by amendment.’”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ALONZO JOSEPH, Case No.: 3:19-cv-2139-GPC-RBM
CDCR #K-62045,
12
ORDER:
Plaintiff,
13
v. 1) OVERRULING PLAINTIFF’S
14
OBJECTION TO REMOVAL
Dr. DAVID CLAYTON, M.D.,
15 [ECF No. 3]
Defendant.
16
2) GRANTING DEFENDANT’S
17 MOTION TO DISMISS PLAINTIFF’S
EIGHTH AMENDMENT CLAIMS
18
PURSUANT TO Fed. R. Civ. P.
19 12(b)(6) [ECF No. 4]
20
AND
21
3) DISMISSING PLAINTIFF’S
22
RETALIATION CLAIMS
23 SUA SPONTE PURSUANT
TO 28 U.S.C. § 1915A(b)(1)
24
25
26 Currently before the Court are Plaintiff Alonzo Joseph’s Objection to Removal [ECF
27 No. 3] and Defendant David Clayton’s Motion to Dismiss Joseph’s Complaint pursuant to
28 Fed. R. Civ. P. 12(b)(6) (ECF No. 4). Because the Court finds removal was proper pursuant
1 to 28 U.S.C. § 1441(a), it OVERRULES Joseph’s objection and declines to remand the
2 case to San Diego Superior Court. However, because the Court further finds Joseph’s
3 Complaint fails to allege facts sufficient to state a plausible Eighth Amendment claim, it
4 GRANTS Clayton’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Finally, the
5 Court sua sponte dismisses Joseph’s claims of retaliation pursuant to 28 U.S.C.
6 § 1915A(b)(1), declines to exercise supplemental jurisdiction over his state law general
7 negligence and intentional tort claims pursuant to 28 U.S.C. § 1367(c), and GRANTS him
8 leave to amend.
9 I. Procedural Background & Plaintiff’s Objection to Removal
10 On May 31, 2019, Alonzo Joseph, who was then incarcerated at California State
11 Prison‒Sacramento, filed a civil complaint in San Diego Superior Court against Clayton, a
12 medical doctor employed at Richard J. Donovan Correctional Facility (“RJD”) in San
13 Diego. See ECF No. 1-3 (“Compl.”) at 2‒5. Joseph checked both the “general negligence”
14 and “intentional tort” boxes on the Judicial Council of California Complaint Form he used
15 to assert claims of “Personal Injury, Property Damage, [or] Wrongful Death,” but he also
16 attached nine additional pages of facts in which he describes Clayton’s “deliberate”
17 attempts to “cut [him] off of [his] pain medication without any penological reason,” while
18 he was incarcerated at RJD in early 2018, and expressly invokes the Eighth Amendment.
19 Id. at 6‒8.1 Joseph further alleged Dr. Clayton “deliberately retaliated” against him by
20
21
1 The Court notes Joseph may have elected to append his Eighth Amendment claims to his
22
state law claims in San Diego Superior Court because he is no longer entitled to bring a
23 civil action or appeal in proceed in forma pauperis (“IFP”) in federal court unless he is
“under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Andrews v.
24
Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (under 28 U.S.C. § 1915(g) “[p]risoners
25 who have repeatedly brought unsuccessful suits may entirely be barred from IFP status
under the three strikes rule”); Joseph v. Sharma, 2018 WL 4613022, at *3 (S.D. Cal. Sept.
26
26, 2018) (finding that “Plaintiff Alonzo Joseph, identified as CDCR Inmate #K-62045,
27 while incarcerated, has had at least six prior civil actions or appeals dismissed on the
grounds that they were frivolous, malicious, or failed to state a claim upon which relief
28
1 “playing games with [his] [t]ramadol pain medication,” “without any penological reason,”
2 and that he filed a complaint against Clayton with the California Medical Board.2 Id. at 9,
3 14. In support of these claims, Joseph attached four separate exhibits. Id. at 16‒55.
4 The case was assigned Civil Case No. 37-2019-00027988-CU-PO-CTL in San
5 Diego Superior Court, and on October 7, 2019, Clayton was served with a copy of the
6 Complaint and summons. On November 6, 2019, however, Clayton filed a Notice of
7 Removal based on this Court’s original federal question jurisdiction pursuant to 28 U.S.C.
8 § 1441(a). See ECF No. 1 (“Def.’s Notice of Removal”) at 1‒2.
9 On November 22, 2019, Joseph timely filed an Objection to Defendant’s Notice of
10 Removal, arguing he “should be able [to] remain in the state courts.” See ECF No. 3; 28
11 U.S.C. § 1447(c). In it, Joseph argues that he “is raising a state claim,” and contends that
12 while “some claims can be raised on federal level,” that “doesn’t mean that [he must] file
13 on a federal level.” Id. at 1.
14 While it is generally true that “the plaintiff is the master of the claim; [and] he or she
15 may avoid federal jurisdiction by exclusive reliance on state law,” Caterpillar, Inc. v.
16 Williams, 482 U.S. 386, 392 (1987); Easton v. Crossland Mortg. Corp., 114 F.3d 979, 982
17 (9th Cir. 1997); Rutherford v. La Jolla Riviera Apartment House LLC, 2019 WL 6125255,
18
19
20
2 In his Motion to Dismiss, Clayton asks the Court to take judicial notice of facts from the
21 Physician’s Desk Reference (PDR) as “accurate and readily determinable from a source
whose accuracy cannot reasonable be questioned.” See Def.’s Mem. of P&A’s in Supp. of
22
Mot. to Dismiss, ECF No. 4 at 8‒9 nn. 3‒4. See Cutler v. Corr. Med. Servs., 2011 WL
23 4479025, at *7 (D. Idaho Sept. 26, 2011) (noting that “Ultram (tramadol) … is a
prescription medication that is a ‘centrally acting synthetic opioid analgesic,’” and finding
24
it “appropriate to take judicial notice of well-known medical facts, such as those contained
25 in the Physician's Desk Reference.”) (citing United States v. Howard, 381 F.3d 873, 880
& n.7 (9th Cir. 2004). Clayton cites the PDR’s drug summary description which contains
26
the following warning: “Tramadol is an opioid agonist and therefore has abuse potential
27 and risk of fatal overdose from respiratory failure. Addiction may occur in patients who
obtain tramadol illicitly or in those appropriately prescribed the drug.” Id. at 8 n.3 (citing
28
1 at *2 (S.D. Cal. Nov. 19, 2019), Joseph’s Complaint in this case expressly alleges “Dr.
2 David Clayton [has] been violating my Eighth Amendment rights by failing to take steps
3 to improve a serious medical need,” and contends Clayton’s actions “amount[] to deliberate
4 indifference,” insofar as “he chose the course [in] conscious disregard [of] an excessive
5 risk to [his] health.” See ECF No. 1‒3 at 6‒7; 28 U.S.C. § 1441(c)(1)(A) (noting removal
6 is proper even if federal law and state law claims are joined, so long as the “civil action
7 includes‒‒(A) a claim arising under the Constitution, laws, or treaties of the United States
8 (within the meaning of 28 U.S.C. § 1331 of this title….”).
9 Thus, because a federal question is “presented in the face of [Joseph’s] properly
10 pleaded complaint,” Caterpillar, Inc., 482 U.S. at 392, and he has not “avoid[ed] federal
11 jurisdiction by relying exclusively on state law,” Balcorta v. Twentieth Century–Fox Film
12 Corp., 208 F.3d 1102, 1106 (9th Cir. 2000); Hunter v. Philip Morris USA, 582 F.3d 1039,
13 1042 (9th Cir. 2009), removal was proper pursuant to 28 U.S.C. § 1441(a), and Joseph’s
14 objection [ECF No. 3] must be OVERRULED.
15 II. Plaintiff’s Factual Allegations
16 Joseph claims he has “severe cirrhosis of the liver,” is ineligible for surgery, and
17 suffers from “severe pain and discomfort” that “limit[s] [his] daily functions.” See Compl.,
18 ECF No. 1‒3 at 6, 11. He alleges that on February 14, 2018, March 3, 2018, March 8, 2018,
19 March 9, 2018, and again on March 14, 2018, he “went [to] see[] … Dr. David Clayton, or
20 the neurologists about [his] chronic pain issues,” and the neurologist “told … Clayton to
21 put [Joseph] on pain management.” In so doing, Joseph claims Clayton “deliberately tr[ied]
22 [to] cut [him] off [his] pain medication,” and “play[ed] games with [his] [t]ramadol” “for
23 no reason.” Id. at 6, 9, 17, 19. Joseph further contends Clayton filed a “false report in [his]
24 medical file” alleging he “refuse[d] to test,” and claiming he had a “long use of drug abuse.”
25 Joseph claims, however, that while he has been in prison for 23 years, he has “never had a
26 dirty test for anything,” and has never received a “write up for cheeking any medication.”
27 Id. at 14. In sum, Joseph alleges Clayton tried to “label” him as a “drug abuse[r],” and
28 “fail[ed] to take steps to improve [his] serious medical need,” by ignoring “demonstrated
1 facts about [his] pain,” and repeatedly prescribing “the same … 16 different anti-
2 inflammatory meds” that “didn’t work.” Id. at 9, 14, 19.
3 In support of his Complaint, Joseph attaches the results of a lumbar spine x-ray dated
4 March 3, 2018, which was recommended by an unidentified neurologist, together with a
5 referral to a “PCP” for “pain mgmt” dated February 14, 2018. Id. at 21. Another exhibit
6 documents Joseph’s diagnosis of “mild to moderate multilevel degenerative endplate
7 sclerosis and osteophytosis, progressed from [a] prior exam.” Id. at 21‒22. Also attached
8 is a “Chronic Pain Intake Sheet” which Joseph claims to have completed sometime in 2015,
9 and in which he reported diagnoses of “degenerative disc and joint disease,” “19 years” of
10 pain, 3 MRIs, “numerous” x-rays, referrals to orthopedic surgeons and neurologists, and a
11 history of prescriptions for gabapentin, morphine, and tramadol. Id. at 14, 35‒40.
12 Additional random excerpts of Joseph’s “Medication Administration Record (Controlled
13 Substance)” (“MAR”) dated March 2008, May‒July 2016, June‒July 2017, and November
14 25, 2016 through December 1, 2016, all account previously prescribed pain medications,
15 including gabapentin, tramadol, morphine, and methadone. Id. at 44, 49, 50, 51.
16 III. Clayton’s Motion to Dismiss
17 A. Arguments
18 Dr. Clayton moves to dismiss Joseph’s Complaint pursuant to Fed. R. Civ. P.
19 12(b)(6) claiming it is based on a mere difference of opinion and not the “deliberate
20 indifference” required to support an Eighth Amendment violation. See ECF No. 4 at 11‒
21 14 (“Def.’s Mem. of P&A’s in Supp. of Mot. to Dismiss”). Clayton contends that the
22 “robust development of the factual basis of [Joseph’s] claim, through inclusion of the
23 administrative remedies submissions and findings [he has attached] as exhibits” show his
24 claim is based on a disagreement “between an inmate with no medical training and his
25 physician regarding the best means of achieving pain relief in an institutional setting,” and
26 as such, is “not actionable” under § 1983. Id. at 8.
27 Joseph objects, claiming that his medical records “don’t lie,” and that they instead
28 reveal Dr. Clayton’s “deliberate[] and intentional[]” decision to “discontinue [his] pain
1 medication without any legitimate reason.” See Pl.’s Opp’n [ECF No. 6] at 3. Joseph argues
2 Clayton is “minimiz[ing] [his] medical condition,” downplays his documented history of
3 severe and prolonged pain, and ignores those parts of his MAR which document years of
4 his having been previously prescribed “powerful painkillers” like morphine and tramadol.
5 Id. at 2‒3; see also Compl., ECF No. 1-3 at 44‒47, 49, 50‒55.
6 B. Standard of Review
7 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v.
8 Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim may be dismissed under Rule 12(b)(6)
9 either for lack of a cognizable legal theory or failure to allege sufficient facts to support a
10 cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). In ruling on a
11 motion to dismiss, the Court accepts all allegations of material fact in the complaint as true
12 and construes them in the light most favorable to the non-moving party. Cedars-Sinai
13 Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir.
14 2007).
15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
16 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
17 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
18 (2007)); Villa v. Maricopa Cty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially
19 plausible “when the plaintiff pleads factual content that allows the court to draw the
20 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
21 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or
22 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555,
23 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556
24 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare
25 recitals of the elements of a cause of action, supported by mere conclusory statements, do
26 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual
27 allegations,’” Rule 8 “demands more than an unadorned, the defendant-unlawfully-
28 harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
1 Therefore, “[f]actual allegations must be enough to raise a right to relief above the
2 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are
3 merely consistent with a defendant’s liability, it stops short of the line between possibility
4 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes
5 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc).
6 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual
7 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive
8 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962,
9 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
10 Finally, because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than
11 the claim’s substantive merits, “a court may [ordinarily] look only at the face of the
12 complaint,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002),
13 including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a written
14 instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); United
15 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Bryan v. City of Carlsbad, 297 F. Supp.
16 3d 1107, 1114 (S.D. Cal. 2018), appeal dismissed, No. 18-55434, 2018 WL 3244047 (9th
17 Cir. May 23, 2018).3
18 C. Eighth Amendment Claims
19 Only “deliberate indifference to serious medical needs of prisoners constitutes the
20 unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” Estelle
21 v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks omitted).
22 “A determination of ‘deliberate indifference’ involves an examination of two elements: (1)
23
24
25 3 While “it is not the Court’s duty to wade through exhibits to determine whether cognizable
claims have been stated,” Woodrow v. Cty. of Merced, 2015 WL 164427, at *4 (E.D. Cal.
26
Jan 13, 2015), the Court considers the exhibits Joseph attached to his Complaint because
27 he references these “attach[ed] pages” several times in the body of his pleading. See
Compl., ECF No. 1-3 at 5, 8, 9, 10, 13; Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
28
1 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s
2 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled
3 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)
4 (quoting Estelle, 429 U.S. at 104); see also Wilhelm v. Rotman, 680 F.3d 1108, 1113 (9th
5 Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
6 First, “[b]ecause society does not expect that prisoners will have unqualified access
7 to health care, deliberate indifference to medical needs amounts to an Eighth Amendment
8 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992),
9 citing Estelle, 429 U.S. at 103‒104. “A ‘serious’ medical need exists if the failure to treat
10 a prisoner’s condition could result in further significant injury or the ‘unnecessary and
11 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).
12 “The existence of an injury that a reasonable doctor or patient would find important and
13 worthy of comment or treatment; the presence of a medical condition that significantly
14 affects an individual’s daily activities; or the existence of chronic and substantial pain are
15 examples of indications that a prisoner has a ‘serious’ need for medical treatment.” Id.
16 (citing Wood v. Housewright, 900 F.2d 1332, 1337‒41 (9th Cir. 1990); Hunt v. Dental
17 Dept., 865 F.2d 198, 200‒01 (9th Cir. 1989)).
18 Here, Clayton does not argue that Joseph has failed to allege facts to plausibly show
19 that his medical needs were serious, and the Court finds his Complaint is sufficiently
20 pleaded in this regard. See e.g., Rosado v. Alameida, 497 F. Supp. 2d 1179, 1187 (S.D. Cal.
21 2007) (finding a prisoner’s “end stage liver cirrhosis and … condition was serious and
22 potentially life-threatening” under Eighth Amendment standards); Watson v. Sisto, 2011
23 WL 5155175, at *22 (E.D. Cal. Oct. 28, 2011) (noting no dispute that plaintiff’s
24 degenerative disc disease was a “serious medical need” subject to Eighth Amendment
25 protection), aff’d sub nom. Watson v. Swarthout, 536 F. App’x 747 (9th Cir. 2013).
26 “Degenerative disc disease poses its own unique set of medical issues, including serious
27 consideration of the various medical treatment options available.” Jackson v. Rallos, 2012
28 WL 1037937, at *31 (E.D. Cal. Mar. 27, 2012).
1 Therefore, the Court must next decide whether Joseph’s Complaint further contains
2 sufficient “factual content” to show Clayton acted with “deliberate indifference” to his
3 needs. McGuckin, 914 F.2d. at 1060; see also Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at
4 678. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
5 1060 (9th Cir. 2004).
6 Clayton rightly contends that a mere “difference of medical opinion ... [is]
7 insufficient, as a matter of law, to establish deliberate indifference,” Jackson v. McIntosh,
8 90 F.3d 330, 332 (9th Cir. 1996), and that disagreements between a prisoner and his treating
9 physician as to the need to pursue one course of treatment over another fall short of meeting
10 that standard. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (citing Estelle, 429 U.S.
11 at 107). Instead, to sufficiently plead an Eighth Amendment violation based on “alternative
12 courses of treatment,” Joseph must allege facts sufficient to plausibly show that Clayton’s
13 “chosen course of treatment, i.e., a reduction or discontinuation of his tramadol prescription
14 based on a finding that he was “not a candidate for narcotic or any habit-forming
15 medications,” and the substitution of a continued course of “aspirin, salsalate,
16 acetaminophen, and diclofenac” to instead manage his pain, see Pl.’s Ex. A, ECF No. 1-3
17 at 25, was “‘medically unacceptable under the circumstances,’ and was taken ‘in conscious
18 disregard of an excessive risk to [his] health.’” Toguchi, 391 F.3d at 1058 (citations
19 omitted).4
20
21
4 While a prisoner is “free to refuse specific medications or types of medication, he does
22
not have a right to dictate what medications he will be prescribed.” Peacock v. Horowitz,
23 2016 WL 3940346, at *7 (E.D. Cal. July 21, 2016) (citing Stiltner v. Rhay, 371 F.2d 420,
421 n.3 (9th Cir. 1967) (allegations that a prisoner feels he is not receiving the “the kind
24
and quality of medical treatment he believes is indicated” do not “justify federal
25 intervention.”); see also Medina v. Barenchi, 2016 WL 7325508, at *5 (S.D. Cal. Dec. 16,
2016) (sua sponte dismissing Eighth Amendment claims against prison doctors pursuant
26
to 28 U.S.C. § 1915(e)(2) and § 1915A because “while Plaintiff obviously disagrees with
27 Defendants’ assessment of his need for narcotics to treat his pain,” dissatisfaction alone is
insufficient to support a deliberate indifference claim); Hardwick v. California Dep’t of
28
1 This is where Joseph’s pleading fails‒‒for while he broadly contends Clayton acted
2 with “conscious disregard [to] an excessive risk to [his] health,” and “deliberately ignored
3 [his] standard medical needs,” see Compl. at 7, 11, 12, these are only “[t]hreadbare recitals
4 of the elements of a[n] [Eighth Amendment] cause of action, supported by mere conclusory
5 statements.” See Iqbal, 556 U.S. at 678. Without “further factual enhancement” which
6 plausibly suggests Clayton modified Joseph’s pain management plan to reduce his
7 tramadol dependence knowing that it would cause a serious and medically unacceptable
8 risk of harm to him, Joseph’s Complaint fails to plead the deliberate indifference necessary
9 to sustain a plausible claim for relief. Id.; see also Toguchi, 391 F.3d at 1058 (finding
10 claims that “Seroquel is superior to Triafon, and therefore should not have been
11 discontinued” insufficient to support showing of “deliberate indifference”); see also
12 DeGeorge v. Mindoro, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019) (finding prison
13 doctor’s decision “to wean plaintiff off morphine” was not “medically unacceptable” in
14 light of other “reasonable steps [taken] to abate plaintiff’s pain” and finding no deliberate
15 indifference despite plaintiff’s claims that only morphine was “very effective” in treating
16 his lower back pain).
17 In sum, the Court finds Joseph’s bare allegations that Clayton decided to “play[]
18 games with his tramadol” because he “no longer think[s] [he] need[s] [it],” and instead
19 prescribed “old medications,” that Joseph contends “didn’t work” to sufficiently alleviate
20 his pain, see Compl., at 9, 14, do as Dr. Clayton claims, boil down to a “mere difference of
21 opinion with [his] treatment plan,” see Def.’s Mem. of P&As in Supp. of Mot. to Dismiss,
22 ECF No. 4 at 15, and as such, simply do not rise to the level of cruel and unusual
23 punishment. Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent
24 in diagnosing or treating a medical condition does not state a valid claim of medical
25
26
27 fail to show that defendants denied or delayed treatment or that prescribing Sulindac
without simultaneously giving him Prilosec was medically unacceptable.”), report and
28
1 mistreatment under the Eighth Amendment. Medical malpractice does not become a
2 constitutional violation merely because the victim is a prisoner.” (emphasis added));
3 Wilhelm, 680 F.3d at 1122 (“[A] plaintiff’s 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.”) (quoting Jackson, 90
6 F.3d at 332); Gauthier v. Stiles, 402 Fed. Appx. 203 (9th Cir. 2010) (affirming dismissal
7 of plaintiff’s disagreement with the dosage and type of pain medication administered after
8 surgery as insufficient to show deliberate indifference).
9 For these reasons, Clayton’s Motion to Dismiss Joseph’s Eighth Amendment
10 inadequate medical care claims pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 4] is
11 GRANTED.
12 IV. Sua Sponte Review and Dismissal of Retaliation Claims per 28 U.S.C. § 1915A
13 The Court notes Clayton does not address Joseph’s claims that he also “deliberately
14 retaliated on [him] for no reason, by playing games with [his] [t]ramadol medication.”
15 Compl., ECF No. 1‒3 at 14. However, to the extent Joseph intended to allege a separate
16 First Amendment claim, the Court sua sponte finds his allegations insufficient to state a
17 plausible claim of retaliation. See 28 U.S.C. § 1915A(b)(1); Chavez v. Robinson, 817 F.3d
18 1162, 1168 (9th Cir. 2016) (Section 1915A “mandates early review—‘before docketing []
19 or [] as soon as practicable after docketing’—for all complaints ‘in which a prisoner seeks
20 redress from a governmental entity or officer or employee of a governmental entity.’”);
21 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (Section
22 1915A requires that the court sua sponte dismiss a prisoner’s complaint, “or any portion of
23 the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief
24 may be granted; or (2) seeks monetary relief from a defendant who is immune from such
25 relief.”) (quoting 28 U.S.C. § 1915A(b)).
26 “Within the prison context, a viable claim of First Amendment retaliation entails
27 five basic elements: (1) An assertion that a state actor took some adverse action against an
28 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
1 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
2 advance a legitimate correctional goal.”). Rhodes v. Robinson, 408 F.3d 559, 567‒68 (9th
3 Cir. 2005).
4 Here, Joseph alleges Dr. Clayton took adverse action against him; but he fails to
5 allege the Doctor’s actions were caused by any protected conduct on Joseph’s part, had a
6 chilling effect on the exercise of his First Amendment rights, or that Clayton’s pain
7 management prescription regimen failed to allege advance any legitimate penological goal.
8 Id.; cf. Miller v. California Dep’t of Corr. & Rehab., 2018 WL 534306, at *18 (N.D. Cal.
9 Jan. 24, 2018) (“Taking a prisoner off opiates that are not appropriate for his medical
10 condition also advances the legitimate penological goal of reducing prescription drug abuse
11 and drug addiction among the prison population.”).
12 And even if the Court were to assume the filing of complaint with the California
13 Medical Board was “protected conduct,” Joseph does not allege Clayton was aware of that
14 complaint or any inmate grievance he filed while he alleges to have been under Dr.
15 Clayton’s care in February and March 2018. See Compl., ECF No. 1‒3 at 6. In fact,
16 Joseph’s Exhibits show his complaint to the Medical Board of California was not submitted
17 until October 21, 2018, id. at 29‒33, and his CDCR 602 Health Care Grievance, Log. No.
18 RJDHC 18003068, was not filed until December 10, 2018. Id. at 17‒27. See Sorrano’s
19 Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315–16 (9th Cir. 1989) (noting that while “the
20 timing and nature” of an allegedly adverse action can “properly be considered” as
21 circumstantial evidence of retaliatory intent, the official alleged to have retaliated must also
22 be alleged to have been aware of the plaintiff’s protected conduct); Pratt v. Rowland, 65
23 F.3d 802, 808 (9th Cir. 1995); Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (noting
24 that “mere speculation that defendants acted out of retaliation is not sufficient” and
25 affirming summary judgment where there was “nothing in the record to indicate
26 [defendant] even knew about [an] earlier [law]suit.”); see also Coreno v. Gamboa, 2011
27 WL 6334351 at *7 (N.D. Cal. 2011) (finding that while prisoner’s allegations that doctor
28 reduced narcotic pain medication in retaliation for his inmate grievances and complaint to
1 the California Medical Board were sufficient to show prisoner had engaged in protected
2 conduct, his retaliation claim failed because he did not show doctor “was aware of such
3 conduct at the time.”); accord Rojo v. Paramo, 2014 WL 2586904, at *5 (S.D. Cal. June
4 10, 2014).
5 V. State Law Claims
6 Perhaps because it was originally filed in San Diego Superior Court, Joseph’s
7 Complaint also alleges Clayton committed acts of “general negligence” and “intentional
8 tort” arising under California law. See Compl., ECF No. 3-1 at 5, 8, 10, 13. Clayton does
9 not move to dismiss these claims, but under 28 U.S.C. § 1367(c)(3), “district courts may
10 decline to exercise supplemental jurisdiction over [state-law claims] if ... the district court
11 has dismissed all claims over which it has original jurisdiction[.]”
12 “[W]hen deciding whether to exercise supplemental jurisdiction, ‘a federal court
13 should consider and weigh in each case, and at every stage of the litigation, the values of
14 judicial economy, convenience, fairness, and comity.’” City of Chicago v. Int’l Coll. of
15 Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie Mellon Univ. v. Cohill, 484 U.S.
16 343, 350 (1988)). “[I]n the usual case in which all federal-law claims are eliminated before
17 trial, the balance of factors will point towards declining to exercise jurisdiction over the
18 remaining state-law claims.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir.
19 1997) (en banc) (quoting Carnegie Mellon Univ., 484 U.S. at 350 n.7).
20 Because the Court has dismissed all Joseph’s federal claims but will grant him leave
21 to amend, it declines to exercise supplement jurisdiction over his purported state law claims
22 at this time. See 28 U.S.C. § 1367(c); Acri, 114 F.3d at 1001. Joseph is cautioned, however,
23 that should he elect to amend his federal claims and include supplemental state law claims
24 against Clayton, he must also allege pre-suit compliance with California’s Tort Claims Act
25 with respect to those claims. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
26 627 (9th Cir. 1988) (holding that supplemental state law tort claims alleged in a § 1983 suit
27 against both the individual and public entity defendants may be dismissed if the plaintiff
28 “fails to allege compliance with California tort claims procedures” before filing suit).
1 VI. Leave to Amend
2 Finally, Clayton argues that “the facts as developed simply cannot form the basis for
3 a plausible claim of deliberate indifference,” and therefore requests that the dismissal of
4 Joseph’s Complaint “be entered with prejudice.” See ECF No. 4 at 15. But in light of his
5 pro se status, the Court will grant Joseph leave to amend his pleading deficiencies against
6 Dr. Clayton, if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A
7 district court should not dismiss a pro se complaint without leave to amend [pursuant to 28
8 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the
9 complaint could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202,
10 1212 (9th Cir. 2012)). “Rule 15(a) is very liberal and leave to amend shall be freely given
11 when justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946,
12 951 (9th Cir. 2006) (quotation omitted).
13 However, Joseph’s First Amended Complaint must be complete by itself without
14 reference to his original pleading; any claim he fails to re-allege against Dr. Clayton will
15 be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
16 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
17 original.”); Lacey, 693 F.3d at 928 (noting that claims dismissed with leave to amend which
18 are not re-alleged in an amended pleading may be “considered waived if not repled.”).
19 VII. Conclusion and Orders
20 Accordingly, for all the reasons discussed, the Court:
21 1) OVERRULES Plaintiff’s Objection to Defendant’s Notice of Removal [ECF
22 No. 3];
23 2) GRANTS Defendant Clayton’s Motion to Dismiss Plaintiff’s Eighth
24 Amendment Claims pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 4];
25 3) DISMISSES Plaintiff’s claims of retaliation sua sponte pursuant to 28 U.S.C.
26 § 1915A(b)(1);
27 4) DECLINES to exercise supplemental jurisdiction over Plaintiff’s state law
28 claims pursuant to 28 U.S.C. § 1367(c); and
1 5) GRANTS Plaintiff leave to file a First Amended Complaint against Dr.
2 Clayton no later than April 1, 2020. If Plaintiff fails to file a First Amended Complaint on
3 before April 1, 2020, the Court will enter a final Order dismissing this civil action in its
4 || entirety based both on his failure to state a claim upon which relief can be granted pursuant
5 ||to Fed. R. Civ. P. 12(b)(6) and his failure to prosecute in compliance with a court order
6 ||requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a
7 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court
8 ||may convert the dismissal of the complaint into dismissal of the entire action.”).
9 IT IS SO ORDERED.
10 || Dated: February 18, 2020
I] Hon. athe Cae
12 United States District Judge
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