The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 KEITH WAYNE SEKERKE, Case No.: 3:19-cv-0034-GPC-RBB
Booking No. 18165284,
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ORDER GRANTING IN PART AND
Plaintiff,
13 DENYING IN PART DEFENDANTS’
vs. MOTION TO DISMISS PORTIONS
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OF PLAINTIFF’S SECOND
15 AMENDED COMPLAINT AND
ARTURO LEON; MARK O’BRIEN; VACATING HEARING
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JON MONTGOMERY; DANE OLSEN
17 and COUNTY OF SAN DIEGO, [ECF No. 58]
18 Defendants.
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20 Before the Court is Defendants Arturo Leon and Mark O’Brien’s motion to dismiss
21 Plaintiff’s First, Second, Third, and Fifth claims for relief in the Second Amended
22 Complaint (ECF No. 54, “SAC”). ECF No. 58. Plaintiff filed an opposition on March
23 25, 2020. ECF No. 65. Defendants filed a reply on March 31, 2020. ECF No. 66.
24 The Court hereby GRANTS in part and DENIES in part Defendants’ motion
25 and VACATES the hearing on the motion that was scheduled for April 17, 2020.
26 I. Procedural Background
27 On January 7, 2019, Plaintiff proceeding pro se and in forma pauperis, filed this
28 lawsuit. ECF No. 1. Plaintiff currently resides in San Diego County Jail. On February
1 25, 2019, Plaintiff filed a First Amended Complaint (“FAC”) bringing claims under 42
2 U.S.C. § 1983, with supplemental state tort claims, against Arturo Leon (sued as “Arturo
3 Leo”), Mark O’Brien (“O’Brien”), and Sheriff William Gore. ECF No. 7 (“FAC”). In
4 the FAC, Plaintiff argued that his right to medical care had been violated due to
5 Defendants’ policy of refusing to provide narcotics to inmates. Id.
6 On August 14, 2019, Plaintiff filed a motion to join defendants Medical
7 Administrator Barbara Lee, Deputy Olsen, Sergeant A. Sevilla, and Lieutenant Laura
8 Coyne. ECF No. 21. On September 9, 2019, Plaintiff filed a motion for joinder of new
9 claims and therein only named as defendants, Arturo Leon, Mark O’Brien, and Barbara
10 Lee. ECF No. 26. On October 9, 2019, Plaintiff also filed an Ex Parte Notice of
11 Retaliation and Request for Duplicate Orders requesting, inter alia, duplicate copies of all
12 filings and court orders since July 2019. On October 11, 2019, the Court granted
13 Plaintiff’s request for copies, denied Plaintiff’s motions for joinder of new claims and
14 new defendants, and directed Plaintiff to file a motion for leave to file a second amended
15 complaint if he wished to add defendants and claims to this case. ECF No. 30.
16 On November 27, 2019, Plaintiff filed a motion for leave to file a Second
17 Amended Complaint (“SAC”). ECF No. 35. The SAC named Dr. Arturo Leon (“Dr.
18 Leon”) and Dr. Mark O’Brien (“Dr. O’Brien”), as defendants and sought to add as new
19 defendants, Jon Montgomery (“Montgomery”) and Dane Olsen (“Deputy Olsen”). The
20 SAC alleged seven causes of action as follows: (1) Inadequate medical care against Drs.
21 Leon and O’Brien; (2) Inadequate medical care – MRSA Infection (failure to provide
22 treatment) against Dr. Leon; (3) Inadequate medical care – Denying Prescription against
23 Drs. Montgomery and O’Brien; (4) State Supplemental Medical Claims against Dr. Leon;
24 (5) Personal Injury against Dr. Leon; (6) Retaliation against Deputy Olsen; and (7)
25 Liability of San Diego County based on all other Defendants being agents, employees, or
26 co-conspirators.
27 Due to a clerical error, the motion seeking permission to file a SAC was initially
28 processed by the Court as a filed SAC and summonses were issued. ECF No. 35. On
1 December 10, 2019, the Court issued a minute order correcting the error. As a result, the
2 summonses issued on November 27, 2019 were withdrawn from the docket. On
3 December 20, 2019, the U.S. Marshals personally served Dr. Montgomery with a copy of
4 the summons withdrawn by the December 10, 2019 order. ECF Nos. 36-37. On
5 December 19, 2019, Deputy Olsen was served by mail with a copy of the withdrawn
6 summon. On January 7, 2020, Montgomery and Olsen filed a motion to quash service of
7 the summonses. ECF No. 45-1.
8 On February 10, 2020, the Court granted the motion to quash as to Defendants
9 Olsen and Montgomery, and directed that the Clerk of Court issue a new summons as to
10 all the named Defendants in the SAC. In addition, the Court granted the motion to amend
11 as to Counts One, Two, Three, Five, Six and Seven, subject to certain limitations and
12 denied it as to Count Four.1
13 II. Factual Background
14 The factual background has been recited at length in prior orders.2 In brief and
15 most relevant part, Plaintiff arrived at San Diego County Jail on October 11, 2018. In
16 Count One, Plaintiff alleges that all Defendants are practicing a blanket policy of “no
17 narcotic pain medication in violation of the Eighth Amendment.” SAC at 3.3 Plaintiff
18 alleges that, after his arrival, Plaintiff’s pharmacy faxed Plaintiff’s prescriptions to the jail
19 but Plaintiff was never provided with his prescription medication. Id. at 9. Plaintiff
20 argues that there is “no penological purpose” for this policy and that “[s]uch a blanket
21 policy is unconstitutional.” Id. at 4.
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1 The Court also denied Plaintiff’s motion for a temporary restraining order and emergency injunction,
25 noting that his motion was premised on events outside of the scope of this action and additionally,
appeared to be moot given the provision of medical care that was already provided to him. ECF No. 53
26 at 17-18.
2 The factual background is recited in the Court’s prior orders denying Plaintiff’s motions to join
27 defendants and claims (ECF No. 30) and granting in part and denying in part Plaintiff’s motion for leave
to file a second amended complaint (ECF No. 53).
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1 In the SAC, Plaintiff alleges that he was denied medical care between October and
2 November of 2018 based on the following allegations: (1) Plaintiff developed MRSA4
3 infection within a day of arriving to jail facility (Count Two); and (2) Plaintiff has been
4 denied prescription medication to manage the pain related to his opioid withdrawals.
5 Plaintiff alleges that as a result of the denial of the prescription medication, he has
6 “suffered severely”; his “sleep is denied”; and “often times can’t even focus on reading a
7 book due to the pain.” Id. Plaintiff states that his “[d]aily activities such as putting on
8 clothes, cleaning, and showering can not be done without suffering through severe pain”
9 and that his “blood pressure has dramatically increased.” Id. Plaintiff also alleges that he
10 suffers from cervical and spinal stenosis, degenerative disk disease, scoliosis, and severe
11 pain and inflammation in his thoracic spine. Id. at 4, 5.
12 Dr. Leon
13 With respect to Dr. Leon, Plaintiff alleges a violation of his right to adequate
14 medical on the basis of denial of prescription medication (Count One) as described
15 above, and for failure to provide Plaintiff with treatment for the MRSA infection (Count
16 Two). With respect to the MRSA infection, Plaintiff alleges that his infection worsened
17 for three months until November 30, 2018 when a judge ordered Plaintiff to be seen by a
18 medical professional. Id. at 6. Plaintiff alleges that due to Dr. Leon’s failure to provide
19 treatment, Plaintiff has sustained a permanent black scar on his ankle and permanent
20 feelings of a “numb-like sensation to the touch that sends a minor painful sensation to the
21 foot.” Id. at 6.
22 Plaintiff also brings a personal injury claim against Dr. Leon for refusing to taper
23 Plaintiff off his opioid pain management medications (Count Five) which caused Plaintiff
24 to suffer from extreme withdrawal symptoms and to collapse and hit his head on a steel
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27 4 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 door on November 5, 2018. Id. at 9. Plaintiff alleges that the Physician Desk Reference
2 (“PDR”) book warns users of his pain management medication, Lyrica, to “[a]void abrupt
3 withdrawal. Gradually taper over 1 week.” Plaintiff further alleges that the PDR also
4 warns against abrupt withdrawal from his morphine medication. Id. at 9.
5 Plaintiff also alleges that Leon prescribed nonsteroidal anti-inflammatory drug
6 (“NSAID”) medication which Plaintiff alleges subjected Plaintiff’s liver and kidneys to
7 unnecessary risk of harm. Id. at 8.
8 Dr. O’Brien
9 In Count One, Plaintiff alleges that he has written letters addressed to Dr. O’Brien
10 to no avail and that the Defendants (Dr. Leon and Dr. O’Brien) are practicing a blanket
11 policy of no narcotic pain medication in violation of the Eight Amendment. Id. at 7. In
12 Count Three, Plaintiff alleges that Dr. O’Brien is a jail medical officer and has continued
13 to deny him the treatments ordered by the jail physician. Id.5
14 III. Discussion
15 Defendants Dr. Arturo Leon (“Leon”) and Dr. Mark O’Brien (“O’Brien”) argue
16 that Plaintiff’s First, Second, Third, and Fifth Causes of Action fail to state a claim and
17 should be dismissed as against them without leave to amend. Plaintiff opposes.
18 a. Legal Standard
19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to
20 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal
21 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or
22 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police
23 Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required
24 only to set forth a “short and plain statement of the claim showing that the pleader is
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5 Plaintiff also alleges (1) a retaliation claim against Deputy Olsen, claiming that Deputy Olsen placed
27 Plaintiff in administrative segregation one week after Plaintiff filed the original complaint in this Court
(SAC at 10); and (2) that County of San Diego is liable since all other Defendants were acting as agents,
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1 entitled to relief,” and “give the defendant fair notice of what the ... claim is and the
2 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
3 A complaint may survive a motion to dismiss only if, taking all well-pleaded factual
4 allegations as true, it contains enough facts to “state a claim to relief that is plausible on
5 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
6 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows
7 the court to draw the reasonable inference that the defendant is liable for the misconduct
8 alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by
9 mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a
10 motion to dismiss, the non-conclusory factual content, and reasonable inferences from
11 that content, must be plausibly suggestive of a claim entitling the plaintiff to
12 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations
13 omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged
14 in the complaint, and draws all reasonable inferences in favor of the plaintiff. al-Kidd v.
15 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).
16 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless
17 the court determines that the allegation of other facts consistent with the challenged
18 pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc.,
19 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture
20 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would
21 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber,
22 806 F.2d at 1401.
23 b. Violations of Right to Medical Care (First, Second and Third Causes of
24 Action)
25 “The government has an ‘obligation to provide medical care for those whom it is
26 punishing by incarceration,’ and failure to meet that obligation can constitute an Eighth
27 Amendment violation cognizable under § 1983.” Colwell v. Bannister, 763 F.3d 1060,
28 1066 (9th Cir. 2014). The motivating principle underlying this obligation is the belief
1 that the public “be required to care for the prisoner, who cannot by reason of the
2 deprivation of his liberty, care for himself.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
3 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a
4 plaintiff must show deliberate indifference to his serious medical needs.” Id. (internal
5 citations omitted). “This includes both an objective standard—that the deprivation was
6 serious enough to constitute cruel and unusual punishment—and a subjective standard—
7 deliberate indifference.” Id. (internal citations omitted).
8 To meet the objective element of the standard, a plaintiff must demonstrate the
9 existence of a “serious medical need.” Estelle, 429 U.S. at 106. Such a need exists if
10 failure to treat the injury or condition “could result in further significant injury” or cause
11 “the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096
12 (9th Cir. 2006). “Indications that a plaintiff has a serious medical need include the
13 existence of an injury that a reasonable doctor or patient would find important and worthy
14 of comment or treatment; the presence of a medical condition that significantly affects an
15 individual's daily activities; or the existence of chronic and substantial pain.” Colwell,
16 763 F.3d at 1066 (internal citations omitted).
17 The subjective element of the standard is satisfied by showing “(a) a purposeful act
18 or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by
19 the indifference.” Jett, 439 F.3d at 1096. Deliberate indifference “may appear when
20 prison officials deny, delay or intentionally interfere with medical treatment, or it may be
21 shown by the way in which prison physicians provide medical care.” Hutchinson v.
22 United States, 838 F.2d 390, 394 (9th Cir. 1988). “In deciding whether there has been
23 deliberate indifference to an inmate's serious medical needs, we need not defer to the
24 judgment of prison doctors or administrators.” Hunt v. Dental Dep't, 865 F.2d 198, 200
25 (9th Cir. 1989).
26 1. First Cause of Action
27 The First Cause of Action is alleged against Dr. Leon for his refusal to provide
28 Plaintiff with morphine in order to treat Plaintiff’s opioid addition withdrawal symptoms
1 and Dr. Leon’s prescription of NSAID medication that Plaintiff alleges aggravated his
2 gastrointestinal condition. As against Dr. O’Brien, Plaintiff alleges that he wrote letters
3 addressed to Dr. O’Brien to no avail and alleges in a conclusory fashion that Dr. O’Brien
4 practiced a blanket policy of no narcotic pain medication. SAC at 3.
5 Defendants argue that Plaintiff’s claim should be dismissed since he has failed to
6 sufficiently allege both requisite prongs for deliberate indifference: (1) the purposeful act
7 or failure to respond to a prisoner’s pain or possible medical need and (2) the harm
8 caused by the indifference.
9 On the first prong, a purposeful act or failure to respond, Dr. Leon argues that
10 Plaintiff’s complaints about Dr. Leon – i.e., prescribing Plaintiff NSAID medication and
11 refusing to taper Plaintiff off morphine are insufficient to show deprivation of medical
12 care – because they show that Dr. Leon actually did respond to and address Plaintiff’s
13 medical needs, and therefore disprove the allegation that Dr. Leon committed a
14 purposeful act or failed to respond to a prisoner’s pain or possible medical need. Plaintiff
15 counters that Defendants did not respond reasonably to the risk since his pharmacy faxed
16 over “6 months worth of prescription records” to the prison. ECF No. 65 at 6.6 Plaintiff
17 also alleges that Defendants have Plaintiff’s medical records from “Family Health Center
18 as well as past medical records proving [his] severe medical conditions.” ECF No. 65 at
19 10. Based on this, Plaintiff argues that Defendants were aware that Plaintiff was
20 receiving opioid pain management and were also aware “of how long Plaintiff had been
21 on opioid pain management” and that insured “FDA guidelines” and standard medical
22 care mandate the tapering of any patient’s opioid medication to address withdrawal
23 symptoms. Id.
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26 6 Plaintiff cites Farmer v. Brennan, 511 U.S. 825, 837 (1994) for this proposition. While the Supreme
Court in Farmer did consider the question of “deliberate indifference” under the Eighth Amendment, the
27 factual allegations are markedly different. In Farmer, petitioner filed a Bivens complaint, alleging that,
placing petitioner, a transsexual female, in the prisons general population demonstrated a deliberate
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1 On the second prong, harm caused by deliberate indifference, Dr. Leon contends
2 that Plaintiff has failed to establish any causal relationship between Dr. Leon’s actions
3 and his harm. On the refusal to provide Plaintiff with morphine, Defendants allege that
4 Plaintiff has failed to establish that Dr. Leon caused Plaintiff “harm separate from the
5 underlying pain caused by his preexisting conditions.” ECF No. 58-1 at 6. However, the
6 crux of Plaintiff’s argument is that Dr. Leon’s refusal to prescribe Plaintiff morphine to
7 ease his opioid addiction withdrawal symptoms has led to his deterioration in health
8 because the morphine would have alleviated the pain caused by his preexisting
9 conditions. Additionally, Plaintiff has sufficiently alleged harm in arguing that he has
10 “suffered withdrawals and was sent to the ER multiple times” and also has suffered a
11 “continued increase” in his blood pressure due to the chronic pain. ECF No. 65 at 9-10.
12 In Jett, the Ninth Circuit held that the district court prematurely dismissed the
13 plaintiff’s claims where he alleged that the prison doctors were deliberately indifferent to
14 his medical needs in light of his fractured thumb. The Ninth Circuit found that
15 “deliberate indifference” could still exist even where prison doctors ordered x-rays,
16 prescribed pain medicine, and continued to see the plaintiff prisoner. See Jett, 439 F.3d
17 at 1096 (9th Cir. 2006). The Jett court pointed to evidence that suggested the doctors
18 might have been aware of aftercare instructions but did not follow them. Id. at 1097. At
19 this time, it would be premature to dismiss Plaintiff Sekerke’s claims with respect to the
20 refusal to prescribe opioid medication or with respect to the prescription of the NSAIDS.
21 See e.g., Goldman v. Fed. Bureau of Prisons, 768 F. App’x 714 (9th Cir. 2019) (district
22 court dismissal was premature where incarcerated plaintiff alleged that prison officials
23 denied prescribed medication for his opioid addiction).
24 Dr. Leon argues that Plaintiff’s claims should be considered in the context of
25 “medical malpractice,” rather than deliberate indifference, citing Estelle, 429 U.S. at 106
26 (“Medical malpractice does not become a constitutional violation merely because the
27 victim is a prisoner.”). However, in Estelle, the Supreme Court focused on the
28 “inadvertent” or “accidental” nature of the prison officials’ actions. Id. at 105-106. The
1 Estelle plaintiff had been prescribed multiple medications for pain related to his lower
2 back injury, but his prescription was not filled because the prison staff officials lost his
3 prescription. Id. at 100. Here, Sekerke’s allegations target Dr. Leon’s actions that were
4 not inadvertent or accidental, but instead, were deliberately undertaken in accordance
5 with an internal policy declining to prescribe any narcotics to incarcerated individuals.
6 Accordingly, Dr. Leon’s motion to dismiss is DENIED as to the alleged refusal to
7 provide morphine.
8 On the question of the provision of the NSAID medications, Dr. Leon argues that
9 Plaintiff has not shown how this caused him pain. Plaintiff alleges that the prescription
10 of NSAID medications is “so below the standard of care that it amounts to no treatment at
11 all.” ECF No. 65 at 7. Plaintiff does not argue that the provision of NSAID medications
12 amounts to deliberate indifference, but rather, that it falls short of the requisite standard
13 of care. Therefore, while the provision of NSAID medication may provide relevant
14 factual background, Dr. Leon’s actions in providing NSAID medication are not
15 actionable and the motion to dismiss this theory of liability is GRANTED.
16 Similarly, with respect to Plaintiff’s allegations regarding Dr. Leon’s attempt to
17 present himself as “Dr. Jose Jiminez,” the Court finds that Plaintiff has not alleged how
18 this might have caused any harm. As such, Plaintiff’s theory of liability based on this
19 allegation is insufficient and the motion to dismiss this theory is GRANTED with
20 prejudice.
21 As to Dr. O’Brien, the two bare allegations against him are so vague that they do
22 not reveal a purposeful act or failure to respond that led to Plaintiff’s harm caused by
23 deliberate indifference. Consequently, Dr. O’Brien’s motion to dismiss is GRANTED.
24 2. Second Cause of Action
25 The Second Cause of Action is brought against Dr. Leon for his alleged failure to
26 provide Plaintiff with any treatment for the MRSA infection that plaintiff contracted
27 “within a day of arriving” to the jail. SAC at 6. Dr. Leon argues that Plaintiff’s second
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1 cause of action should be dismissed because it is an “impermissible attempt to transform
2 a medical malpractice [claim] into a constitutional violation.” ECF No. 58-1 at 7.
3 On the first prong of deliberate indifference, a purposeful act or failure to respond,
4 Dr. Leon argues that MRSA treatment is not a serious medical need since it does not
5 significantly affect his activities or create chronic and substantial pain. On the second
6 prong, harm caused by deliberate indifference, Defendants argue that Plaintiff has not
7 established a causal relationship and his allegations are too conclusory to establish that
8 Dr. Leon’s conduct somehow contributed to the worsening of Plaintiff’s condition. The
9 Court disagrees. Plaintiff alleges that his infection worsened over the course of the three
10 months that elapsed before he was able to get adequate treatment and that the delayed
11 treatment caused a permanent black scar and permanent damage (i.e., a “numb-like
12 sensation to the touch that sends a minor painful sensation to the foot). SAC at 6. At this
13 time, dismissing Plaintiff’s claims would be premature. See Jett, 439 F.3d at 1096 (9th
14 Cir. 2006); Goldman, 768 F. App’x 714 (9th Cir. 2019).
15 Dr. Leon argues that since Plaintiff did not address this argument in his opposition,
16 and so, on this basis, has failed to preserve his argument for appeal citing Walsh v. Nev.
17 Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006). However, Walsh is
18 inapplicable since there the plaintiff failed to plead her claim in her complaint. Further,
19 the Walsh court explained that “no bright line exists to determine whether an issue has
20 been properly raised below, but a workable standard is that the issue must be raised
21 sufficiently for the trial court to rule on it.” Walsh v. Nevada Dep't of Human Res., 471
22 F.3d 1033, 1037 (9th Cir. 2006) (internal citations omitted). Here, the issue of the MRSA
23 infection was properly raised before the trial court and Dr. Leon’s motion to dismiss is
24 DENIED.
25 3. Third Cause of Action
26 The third cause of action is brought against Dr. O’Brien and against non-movant
27 Defendant Jon Montgomery. Plaintiff primarily brings his allegations against
28 Montgomery for his alleged instructions to jail physicians to uphold the jail policy of
1 refusing to prescribe any narcotic pain medication for incarcerated individuals. With
2 respect to O’Brien, Plaintiff only states: “Defendant Jon Montgomery and Mark O’Brien
3 continue to deny the treatments ordered by the jail physician.” SAC at 9. Defendants
4 argue that this allegation is too “vague” to be sustained since Plaintiff has alleged neither
5 a serious medical need nor causation. The Court agrees with Defendants and finds that
6 Plaintiff has failed to allege sufficient facts with respect to Dr. O’Brien and GRANTS
7 Dr. O’Brien’s motion to dismiss and DISMISSES the claim with respect to Dr. O’Brien.
8 c. Personal Injury (Fifth Cause of Action)
9 In the Fifth Cause of Action, Plaintiff brings a personal injury claim against Dr.
10 Leon for refusing to taper Plaintiff off his opioid pain management medications, since, as
11 a result, Plaintiff suffered from extreme withdrawal systems and on November 5, 2018,
12 Plaintiff collapsed and hit his head on a steel door. Id. at 9. Paramedics were called and
13 Plaintiff was sent by ambulance to the UCSD hospital. Id.
14 Dr. Leon argues that Plaintiff’s claim should be understood as a claim for
15 professional negligence which requires that a plaintiff establish that a duty of care was
16 owed, the breach of such duty, a causal connection between alleged breach and claimed
17 injury, and actual damage. See Hanson v. Grode, 76 Cal. App. 4th 601, 606 (1999).7
18 Plaintiff does not address this argument in his opposition. Construing Plaintiff’s claim as
19 one for professional negligence, Plaintiff has failed to sufficiently allege what duty
20 Defendants have allegedly breached.
21 While the court “ha[s] an obligation where the petitioner is pro se, particularly in
22 civil rights cases, to construe the pleadings liberally and to afford the petitioner the
23 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing
24 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential
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7 Defendant cites California Code of Civil Procedure Section 340.5(2), which does not list the elements
27 of an action against a health care provider, but provides that an action for injury against a health care
provider must be brought within three years after the date of injury or one year after the plaintiff
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1 elements of claims that were not initially pled.” Ivey v. Board of Regents of the
2 || University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
3 Plaintiff's injuries that he sustained as a result of hitting his head on the steel door
4 ||can be understood as part of his allegations related to the injuries he suffered as a result
5 inadequate medical care; however, he has not sufficiently alleged a claim for personal
6 ||injury or professional negligence. As such, Defendants’ motion to dismiss the fifth cause
7 ||of action is GRANTED.
8 d. Conclusion
9 In sum, the Court hereby GRANTS DR. O’Brien’s motion to dismiss the first and
10 || third causes of action without leave to amend and further GRANTS Dr. Leon’s motion to
11 dismiss the first cause of action as to the NSAID theory of recovery and the fifth cause of
12 || action without leave to amend. The Court DENIES Dr. Leon’s motion to dismiss the
13 || first cause of action as to the failure to provide morphine theory of recovery and the
14 || second cause of action.®
15 IT IS SO ORDERED.
16 Dated: April 15, 2020 <=
(Qr2atlo CE LE
17 Hon. Gonzalo P. Curiel
18 United States District Judge
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24 SSS
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8 Tn his opposition, Plaintiff improperly attaches a separate motion for a court order to provide Plaintiff
26 || with “pro-per legal status and access to the jail’s law library.” ECF No. 65 at 12. The underlying
motion to dismiss was filed by Dr. Leon and Dr. O’Brien, and not by the County of San Diego. The
27 County of San Diego would be the proper party to address this issue and it is not clear whether the
28 County of San Diego was served with a copy of this motion. If Plaintiff wishes to have this motion
heard by the Court, he must file this separately and direct it to the County of San Diego.
13