Nguon v. Glynn

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 HUNG DUONG NGUON, Case No.: 21cv2113-CAB (JLB)

CDCR #K-49649,

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Plaintiff,

13 ORDER DISMISSING FIRST

vs. AMENDED COMPLAINT

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WITHOUT PREJUDICE PURSUANT

15 TO 28 U.S.C. § 1915A

MARY ANNE GLYNN, et al.,

16 Defendants.

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18 Plaintiff Hung Duong Nguon, a state prisoner confined at the Richard J. Donovan

19 Correctional Facility (“RJD”) in San Diego, California, proceeding pro se, has paid the

20 civil filing fee and filed a First Amended Complaint pursuant to 42 U.S.C. § 1983. (ECF

21 No. 11.) Plaintiff claims he received inadequate medical treatment in violation of the

22 Eighth and Fourteenth Amendments, the Americans with Disabilities Act (“ADA”), and

23 state law. (Id. at 1-24.)

24 I. Screening pursuant to 28 U.S.C. § 1915A

25 A. Standard of Review

26 Because Plaintiff is a prisoner, his Complaint requires a pre-Answer screening

27 pursuant to 28 U.S.C. § 1915A. Under that statute, the Court must sua sponte dismiss a

28 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a

1 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621 F.3d

2 1002, 1004 (9th Cir. 2010).

3 The standard for determining whether a prisoner has failed to state a claim upon

4 which relief can be granted under § 1915A “incorporates the familiar standard applied in

5 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

6 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a

7 complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief

8 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell

9 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual allegations are not

10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

11 conclusory statements, do not suffice.” Id. at 678.

12 B. Allegations in the First Amended Complaint

13 Plaintiff alleges that when he arrived at RJD on December 20, 2019, he was told he

14 would be seen by a medical doctor within five days as required by RJD policy. (ECF No.

15 11 at ¶ 8.) On December 26, 2019, he filed a California Department of Corrections and

16 Rehabilitation (“CDCR”) 602 inmate grievance complaining that he had not been seen by

17 a doctor within five days of arrival, which had caused his prescription for the pain

18 medication Tramadol to be “cut off abruptly.” (Id. ¶ 9.) Plaintiff went to the “MD-line”

19 on December 27, 2019, where Defendant RJD Dr. Corleone examined him and “lied and

20 fabricated on CDCR documents” that Plaintiff did not have a compression fracture of his

21 spine and lumbar spine scoliosis, even though “a handful of medical doctors” had

22 previously diagnosed those conditions. (Id. ¶¶ 10-11, 64.) He alleges his severe chronic

23 back pain was left untreated by Dr. Corleone causing his condition to worsen to the point

24 where his back goes out causing him to “fall hard to the ground,” and has debilitating pain

25 when he walks, stands, sits or bends, as well as numbness, tingling and weakness in his

26 back and legs, and loss of control of his bladder and bowels. (Id. ¶ 12.)

27 On January 6, 2020, Plaintiff went to the MD-line again and was seen by Defendant

28 RJD Dr. Chau who “upheld” the “fabrication of CDCR documents in conjunction with”

1 Dr. Corleone. (Id. ¶¶ 15, 64.) Plaintiff states that although he has “pain that’s

2 radiculopathy,” Dr. Chau “lied and fabricated on CDCR documents” that he has “chronic

3 back pain without radiculopathy,” and based on that diagnosis denied his requests for

4 morphine, a CT-Scan and an MRI. (Id. ¶ 16.) Dr. Chau also allegedly deleted spinal

5 scoliosis from the “problem list” of Plaintiff’s ongoing medical conditions and falsely

6 claimed he did not show acute distress or grimacing. (Id.) Plaintiff states that doctors

7 specializing in spine problems at the University of California, Davis have diagnosed him

8 with “chronic-appearing vertebral body height loss,” “multilevel disk degeneration within

9 the thoracic spine,” “hypodense faci within multiple vertebral bodies [with] coarsened

10 trabeculae, possibly representing osseous hemangiomas,” “facet arthropathy,” “disc bulge

11 with intervertebral disc height loss,” “bilateral facet arthropathy with small left facet joint

12 effusion,” and “focal protrusion with small annular fissure into the right lateral recess.”

13 (Id. ¶¶ 17, 19.) Several other doctors have diagnosed him with lumbar spinal scoliosis with

14 gross thoracic kyphosis. (Id. ¶ 25.) After he saw Dr. Chau again on January 14, 2020, Dr.

15 Chau allegedly falsified medical records to reflect that Plaintiff did not complain of a

16 “decubitus ulcer in the buttocks or sacrum area [and] pressure sores,” and then “denied

17 every request that Plaintiff asked for.” (Id. ¶ 18.) Plaintiff filed 602 grievances against Dr.

18 Corleone on January 9, 2020, and against Dr. Chau on January 23, 2020. (Id. ¶¶ 10, 15.)

19 On March 2, 2020, Plaintiff went to the MD-line and was seen by Defendant RJD

20 Dr. Casian who, “following in the footsteps of defendants Corleone and Chau in lying and

21 fabricating on CDCR documents,” found “the gross alignment of the spine is within normal

22 limits,” and refused “to believe plaintiff has serious back problems that caused him to fall

23 multiple times.” (Id. ¶¶ 20, 64.) Defendant RJD RN Sazon “aided and abetted” that

24 deliberate indifference to his serious medical needs by rejecting his 602 grievances against

25 Drs. Corleone and Chau, falsely claiming they were duplicative. (Id. ¶¶ 13, 21, 70.) He

26 filed a 602 grievance against Nurse Sazon for denying his 602 grievances. (Id. ¶ 22.)

27 On December 31, 2019, Plaintiff made a “Reasonable Accommodation Request” in

28 which he identified what “he is unable to do because of the serious back problem that he

1 has,” and in which he requested steroid injections, an egg-crate mattress, a “no full duty

2 chrono,” a high medical risk classification, a morphine prescription, and referral to an

3 orthopedist. (Id. ¶ 23.) He alleges Defendant Armenta, an RJD Associate Warden and

4 ADA coordinator, was “personally involved in [the] decision regarding plaintiff’s

5 treatments by aiding and abetting defendant medical doctors who acted with deliberate

6 indifference to plaintiff’s serious medical needs.” (Id. ¶¶ 24, 67.) A Reasonable

7 Accommodation Panel meeting took place on January 16, 2020, during which Defendant

8 Adrian, an RJD Compliance Analyst and Health Care Grievance Representative, “could

9 have intervened and should have intervened,” but instead aided and abetted the doctor

10 Defendants in their deliberate indifference to his serious medical needs by denying his

11 requests and finding “no interim accommodation required.” (Id. ¶ 26, 87.)

12 On January 28, 2020, Defendant Dr. Schultz, an RJD Radiologist, “engaged in

13 fraud” by redacting the report of Plaintiff’s x-ray, falsely stating that Plaintiff’s spine is

14 “within normal limits,” and diagnosing his condition as “mild degenerative spondylosis,”

15 which Plaintiff states is similar to arthritis, thereby aiding and abetting the deliberate

16 indifference of the medical doctors. (Id. ¶¶ 27, 66.) He alleges that because the diagnoses

17 of his “sixteen different back problems are changed to a simple matter of spondylosis or

18 arthritis,” his requests for a back brace, morphine, referral to an orthopedic specialist or

19 surgeon, an MRI, a CT-scan, and physical therapy were all denied. (Id. ¶ 28.) He states

20 that a “handful of defendant” medical doctors and nurses told him: “All you have is

21 arthritis. We do not provide ‘back brace’ or morphine for people with arthritis.” (Id.) He

22 claims to have tried numerous pain medications and creams, none of which are effective to

23 alleviate his pain other than morphine or fentanyl, and although doctors at the University

24 of California, Davis recommended Gabapentin, he was refused that medication in violation

25 of California Prison Health Care Services Pain Management Guidelines. (Id. ¶ 29.)

26 On March 25, 2020, Defendant RN Beltran wrote in progress notes in Plaintiff’s

27 medical file that he complained of unresolved chronic lower back pain. (Id. ¶¶ 30.) He

28 then submitted health care request forms to Defendants RJD Chief Medical Executive Dr.

1 Roberts, RJD Chief Physicians and Executive Surgeons Drs. Hodges and Barenchi, and

2 RJD Drs. Messler, Clayton, Guldseth, Mohamed, Santos and Luu, all of whom “personally

3 involved themselves in decisions regarding plaintiff’s treatment, which they’ve acted with

4 deliberate indifference to plaintiff’s serious medical needs resulting in further significant

5 injuries and caused unnecessary and wanton infliction of pain.” (Id. ¶¶ 30-31, 62-64.)

6 Plaintiff went to the MD-line on April 3, 2020, complaining his back had given out and he

7 had fallen and was seen by Dr. Luu, who diagnosed his condition as “muscle pain/strain,”

8 and told Plaintiff: “It’s just a sprain, it’ll go away by itself within 3 weeks.” (Id. ¶ 31.) He

9 claims Dr. Luu knew or should have known that the failure to correctly diagnose his

10 condition as Quervain’s tenosynovitis presented a substantial risk to his health. (Id.) He

11 saw Dr. Luu again on April 20, 2020, who disregarded that risk by denying Plaintiff’s

12 requests for an epidural steroid injection and an egg-crate mattress. (Id.)

13 On April 17, 2020, Defendant RJD Radiologist Dr. Laufik, “in order to aid and abet

14 defendant Dr. Luu[’s] extreme departure from standard of practice so that he can harm

15 plaintiff by denying treatment altogether,” “illegally engaged in fraud” when he “heavily

16 redacted” a report of an x-ray of Plaintiff’s wrist, and told Plaintiff, “your test results are

17 essentially within normal limits. No provider follow-up is required.” (Id. ¶¶ 32, 66.) In

18 June 2020, Plaintiff filed medical requests regarding injuries resulting from falls and was

19 seen by Defendants RJD Drs. Chau, Corleone, Casian, Luu, Silva, Sedighi, Santos,

20 Guldseth and Mohamed, and by Defendant RJD Nurse Practitioner Pahsa, all of whom

21 “dismissed the whole thing as irrelevant and ended the MD-line each and every time,” and

22 told Plaintiff “all you have is just arthritis of the back.” (Id. ¶ 33-34, 64, 69.)

23 Plaintiff states that although he has never been seen by Defendants RJD Drs. Saidro,

24 Zhang, Messler, Clayton, Roberts, Hodges and Barenchi in person, he seeks to hold them

25 liable as supervisors of the Defendants who examined him in person, and any treatment

26 requires the approval of Drs. Barenchi and Hodges. (Id. ¶¶ 35, 62-64.) He alleges Dr. Luu

27 ordered a steroid injection but Drs. Barenchi and/or Hodges denied the injection. (Id. ¶ 35.)

28 He states that Drs. Chau, Corleone, Casian, Luu, Silva, Sedighi, Santos, Saidro, Guldseth,

1 Mohamed, Zhang, Messler, Clayton, Roberts, Hodges and Barenchi “have more than once

2 went to physician committee where they discussed plaintiff’s multiple complaints

3 concerning his severe back pain and multiple back problems, whereupon, defendants are

4 steadfast on their diagnosis of ‘mild degenerative spondylosis.’” (Id.)

5 Plaintiff states he was denied an ice pack for his wrist by Drs. Luu, Santos and

6 Corleone and Nurse Practitioner Pasha, who told him “there’s no indication for it.” (Id.

7 ¶ 36.) Plaintiff states that an MRI he received August 18, 2020, was “deliberately delay[ed]

8 for months,” and Defendant RJD Radiologist Dr. Waters fraudulently redacted the MRI

9 results and failed to correctly diagnose his wrist problem as Quervain’s tenosynovitis,

10 which caused him to be denied an ice pack and have a cortisone injection delayed for six

11 months. (Id. ¶ 37.) From May 6, 2020, to April 30, 2021, Plaintiff submitted 31 health

12 care requests complaining of wrist pain. (Id. ¶ 38.) The diagnosis of Quervain’s

13 tenosynovitis was eventually confirmed by Dr. Waters, yet Drs. Waters, Luu, Santos,

14 Corlone, Silva, Guldseth, Mohamed, Chau and Sedighi and Nurse Practitioner Pasha

15 continued to deny his requests for morphine and an ice pack. (Id.) Plaintiff’s Quervain’s

16 tenosynovitis condition became chronic, and a March 23, 2021, corticosteroid injection

17 came too late to be effective. (Id.) The MRI also showed Plaintiff had wrist joint and

18 intercarpal arthritis but Drs. Waters and Luu deliberately failed to inform Plaintiff of that

19 condition to prevent him from requesting treatment. (Id. ¶ 39.) Plaintiff states that he has

20 filed many complaints but no lawsuits, which have “emboldened defendants to take away

21 treatments for plaintiff’s hypercholesterolemia,” which placed him at a risk of death from

22 a stroke or heart attack, and to take away treatments for his osteopenia which without

23 treatment leads to irreversible osteoporosis. (Id. ¶ 40.) He claims Nurse Sazon rejected

24 his August 19, 2020, 602 grievance against Dr. Luu in order to aid and abet deliberate

25 indifference to his serious medical needs. (Id. ¶ 41.)

26 On November 11, 2020, Plaintiff filed a 602 grievance against the Reasonable

27 Accommodation Panel complaining that Defendant Anderson, an RJD Associate Warden

28 and ADA Coordinator, and Defendant Kendall, a RJD Health Care Compliance Analyst,

1 agreed with the doctor Defendants that his accommodation request for an egg-crate

2 mattress should be denied. (Id. ¶¶ 42, 67, 87.) He filed a 602 grievance on September 17,

3 2020, complaining that his high cholesterol problem was getting worse, but Defendant RJD

4 RN Sousley denied the grievance and “elected to stand by” as the Defendant medical

5 doctors denied requested prescriptions. (Id. ¶¶ 43, 70.) Plaintiff alleges that Dr. Luu “and

6 other defendant doctors” discontinued his prescription for atorvastatin calcium that treats

7 his “osteopenia problem,” resulting in six months without that prescription. (Id. ¶ 44.) He

8 alleges that “it is quite obvious defendants [are] out to do harm against plaintiff in

9 retaliation for all the complaints he filed and threats of lawsuit.” (Id. ¶ 45.) When Plaintiff

10 requested an alternative treatment for his osteopenia, Dr. Luu denied his request for the

11 liquid nutrition supplement Ensure, leaving no treatment, and told Plaintiff “there’s no

12 indication that you have osteopenia.” (Id. ¶¶ 46, 48.) His May 17, 2021, 602 grievance

13 complaining of the discontinuation of his calcium supplement was rejected by Nurse

14 Sazon. (Id. ¶ 47.) Plaintiff states that his hypogonadism was treated with weekly

15 testosterone injections “he had been given on a regular basis since 2015,” but on September

16 9, 2021, Dr. Luu suspended the testosterone injections. (Id. ¶ 49.)

17 Plaintiff alleges he was threatened by Defendants RJD RNs Millan and Barajas with

18 disciplinary action if he continued to submit health care requests on the same issues. (Id.

19 ¶¶ 50, 52, 70.) On July 23, 2021, Defendant RJD Supervising RN Sanchez “tried to cover

20 up their illegal activities by saying ‘the communication was likely misinterpreted and the

21 intent was to educate him regarding ongoing care and appeals process.’” (Id. ¶¶ 51, 75.)

22 That statement allegedly emboldened the Defendant doctors and nurses “to begin their sick

23 twisted conviction to take away medications and treatments that plaintiff had been

24 receiving for years,” and to prevent a trail of evidence created by multiple health care

25 grievances on the same issues. (Id. ¶ 51.) He alleges Defendant RJD Chief Medical Officer

26 Glynn “personally involved herself in violating Plaintiff’s right to adequate medical care

27 by instituting a toxic environment of directing medical doctors under her leadership to

28 practice deliberate indifference to Plaintiff’s serious medical needs.” (Id. ¶ 7.)

1 Plaintiff states that every month a meeting referred to as a “Population Management

2 Working Session” is held “where all the medical doctors, nurses, and supervisors come

3 together” to discuss inmate patients. (Id. ¶ 53.) Plaintiff alleges that at one time or another

4 84 of the 98 named Defendants participated in those meetings with deliberate indifference

5 to his serious medical needs, but without any factual allegations supporting that conclusory

6 statement. (Id.) Those Defendants include Armenta, Glynn, Roberts, Hodges, Barenchi,

7 Luu, Chau, Corleone, Silva, Mohamed, Waters, Casian, Laufik, Anderson, Santos,

8 Guldseth, Pahsa, Millan, Sazon, Barajas, Sanchez, Beltran, Clayton, Messler, Zhang,

9 Saidro, Sedighi, Schultz and Sousley, all identified above, along with Defendants RJD

10 Radiologist Dr. Brown, RJD Chief Support Executive Alanis, RJD RNs Viernes, Tuason,

11 Liuato, Ruiz, N. Mendoza, A. Mendoza, Chanthalangsy, Valencia, Stepheson, Lopez,

12 Wexman, Carneal, Austria, Pak, Paragas, McCann, Topalov, Ivory and Morera, RJD

13 Supervising RNs Garcia and Baun, RJD LVNs Sihotang, Inglesias, Hughes, Pool, Canela,

14 Webb, Sagiao, Inzunza, Vincent, Hawthorne, Mesina, Stark, McElroy, Tran, Burganas,

15 Santillan, Divina, Eras, Letuligasenoa, Edgar, Ocegueda and Abedeen, RJD Certified

16 Nurse Assistant Razcon, “OT”s Denton, Joseph, Sillas, Perez and Hernandez, RJD Chief

17 Nurse Executive Tenorio, “RND” Basto, RJD Health Care Captain Martinez, “E.OA”

18 Zamora, and RJD Physical Therapist Domingo. (Id.) He claims these Defendants had

19 numerous opportunities to intervene to see to it that he received adequate medical treatment

20 but “consistently elected to put in their rote aiding and abetting” of denial of medical care

21 “in par to community standard of care.” (Id. ¶ 54.)

22 Plaintiff alleges he has “written a fair amount of letters” to Defendants RJD Wardens

23 Pollard and Madden, CDCR Secretaries Diaz and Allison, RJD Chief Deputy Warden

24 Buckel, Director of Corrections Services Foss and Director of the Division of Adult

25 Institutions Gipson, complaining of the medical treatment he has received at RJD. (Id.

26 ¶ 55.) He claims that although they, along with Defendants RJD Associate Warden Palmer

27 and Chief of Health Care for the CDCR Gates, have “ultimate authority” over the other

28 Defendants, they “willfully and wantonly failed to take reasonable action to summon such

1 medical care” and “recklessly allowed the Constitutional violations to continue.” (Id. ¶ 55-

2 57.) Finally, Plaintiff claims Defendant Dr. Tung, a neurosurgeon at Tri-City Hospital,

3 and Defendant Dr. Hofmeister, an orthopedic hand surgeon at Alvarado Hospital,

4 committed medical malpractice. (Id. ¶ 59-60, 65, 80.)

5 Plaintiff claims the actions of the Defendants violated his rights to be free from cruel

6 and unusual punishment under the Eighth Amendment, to equal protection under the

7 Fourteenth Amendment, and to reasonable accommodations under the ADA, and that they

8 constitute the state torts of fraud, personal injury, breach of contract, medical malpractice

9 and intentional infliction of emotional distress. (Id. ¶ 1.)

10 C. Analysis

11 1. Eighth Amendment Claim

12 The prohibition on the infliction of cruel and unusual punishment embodied in the

13 Eighth Amendment, which is applicable to the states through the Fourteenth Amendment,

14 “establish the government’s obligation to provide medical care for those whom it is

15 punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101-03 (1976). “[A] prison

16 official violates the Eighth Amendment only when two requirements are met. First, the

17 deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511

18 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, “a

19 prison official must have a ‘sufficiently culpable state of mind,’” that is, “one of ‘deliberate

20 indifference’ to inmate health or safety.” Id., quoting Wilson, 501 U.S. at 302-03. The

21 prison official must “know[] of and disregard[] an excessive risk to inmate health or safety;

22 the official must both be aware of facts from which the inference could be drawn that a

23 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.

24 Plaintiff’s allegations of severe pain and debilitating injuries resulting from his back

25 and wrist conditions satisfy the serious medical need prong of an Eighth Amendment claim

26 sufficiently to survive the screening required by 28 U.S.C. § 1915A. Wilhelm, 680 F.3d at

27 1121; Iqbal, 556 U.S. at 678; Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir.

28 1994) (“[I]ndicia of a ‘serious’ medical need include (1) the existence of an injury that a

1 reasonable doctor would find important and worthy of comment or treatment, (2) the

2 presence of a medical condition that significantly affects an individual’s daily activities,

3 and (3) the existence of chronic or substantial pain.”)

4 However, the First Amended Complaint fails to plausibly allege that any Defendant

5 acted with deliberate indifference to Plaintiff’s serious medical needs. The deliberate

6 indifference prong of an Eighth Amendment violation regarding medical care “is satisfied

7 by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical

8 need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th

9 Cir. 2006). To plausibly allege deliberate indifference, “the prison official must not only

10 ‘be aware of the facts from which the inference could be drawn that a substantial risk of

11 serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung,

12 391 F.3d 1051, 1057 (9th Cir. 2004), quoting Farmer, 511 U.S. at 837. Allegations of

13 differences of opinion over proper medical care, inadequate medical treatment, medical

14 malpractice, or even gross negligence by themselves do not rise to the level of an Eighth

15 Amendment violation. See Farmer, 511 U.S. at 835 (“[N]egligen(ce) in diagnosing or

16 treating a medical condition” does not amount to deliberate indifference), quoting Estelle,

17 429 U.S. at 105-06 (holding that “an inadvertent failure to provide medical care,”

18 allegations that “a physician has been negligent in diagnosing or treating a medical

19 condition,” or “medical malpractice” do not state an Eighth Amendment claim); Toguchi,

20 391 F.3d at 1058 (disagreement over the necessity or extent of medical treatment does not

21 show deliberate indifference); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A

22 difference of opinion does not amount to a deliberate indifference to [plaintiff]’s serious

23 medical needs.”); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970) (“[A] difference

24 of opinion between a prisoner patient and prison medical authorities as to what treatment

25 is proper and necessary does not give rise to a claim under [§ 1983].)

26 Plaintiff’s allegations against his treating physicians, Drs. Corleone, Chau, Casian,

27 Luu, Guldseth, Santos, Mohamed, Sedighi and Silva, against the doctors who read his x-

28 rays and MRI, Drs. Waters, Schultz and Laufik, and the Nurses who saw him in person,

1 Pasha and Beltran, allege no more than a disagreement with the diagnoses of and

2 appropriate course of treatment for his medical conditions. Plaintiff alleges Dr. Corleone

3 examined him and diagnosed his back condition differently than other doctors who had

4 previously examined him. (ECF No. 11 at ¶¶ 10-12.) He alleges he was examined by Dr.

5 Chau who agreed with Dr. Corleone’s diagnosis and independently diagnosed Plaintiff as

6 having chronic back pain without radiculopathy, even though Plaintiff claims his back pain

7 is radiculopathy, and on the basis of that diagnosis denied Plaintiff’s requests for morphine,

8 a CT scan and an MRI. (Id. ¶¶ 15-16, 18.) Plaintiff alleges Dr. Casian agreed with the

9 diagnoses of Drs. Corleone and Chau, and independently found “the gross alignment of the

10 spine is within normal limits.” (Id. at ¶¶ 20.) Plaintiff alleges that Dr. Luu, based on an

11 examination, misdiagnosed his injuries and determined his cholesterol levels were normal,

12 and based on that diagnosis denied him a steroid injection, an ice pack, a calcium

13 supplement, morphine, and suspended his weekly testosterone injections. (Id. ¶¶ 31, 36,

14 38, 46, 48.) Plaintiff alleges Dr. Guldseth examined him and discontinued his calcium

15 supplement, and that Drs. Santos, Mohammed, Silva and Sedighi agreed with the diagnoses

16 of the other doctors after they examined him, independently diagnosed him with “arthritis

17 of the back,” and refused him morphine and an ice pack. (Id. ¶¶ 34, 38.) Plaintiff alleges

18 Drs. Waters, Schultz and Laufik misread his x-rays and MRI and failed to properly

19 diagnose his condition resulting in the denial of an ice pack, that Nurse Pasha relied on the

20 medical opinions from those doctors to deny Plaintiff an ice pack, and that Nurse Beltran

21 correctly noted that Plaintiff complained of back pain. (Id. ¶¶ 27, 30, 32, 36-39.) Plaintiff

22 has not stated an Eighth Amendment claim arising from his disagreement with the

23 diagnoses of his treating medical providers or the differing opinion of other doctors. See

24 Toguchi, 391 F.3d at 1058 (disagreement over the necessity or extent of medical treatment

25 does not show deliberate indifference); Sanchez, 891 F.2d at 242 (“A difference of opinion

26 does not amount to a deliberate indifference to [plaintiff]’s serious medical needs.”);

27 Mayfield, 433 F.2d at 874 (“[A] difference of opinion between a prisoner patient and prison

28 medical authorities as to what treatment is proper and necessary” does not state a claim).

1 Although Plaintiff cannot establish an Eighth Amendment violation based solely on

2 disagreements with his doctors or between doctors, deliberate indifference can be shown

3 where the chosen course of medical treatment was “medically unacceptable under the

4 circumstances” and chosen “in conscious disregard of an excessive risk to the prisoner’s

5 health.” Toguchi, 391 F.3d at 1058. “Deliberate indifference is a high legal standard.” Id.

6 at 1060. Plaintiff has failed to allege deliberate indifference under this standard because

7 there are no facts in the First Amended Complaint from which the Court could plausibly

8 infer that any treating Defendant deliberately and knowingly chose a course of medical

9 treatment in conscious disregard to an excessive risk to his health. Rather, Plaintiff alleges

10 he was examined by the treating Defendants in response to his complaints of back pain,

11 wrist pain and falling down, and received x-rays, an MRI and other treatments. Although

12 he claims a six-month delay in treating his wrist with a cortisone injection caused his

13 condition to be irreversibly worsened, that allegation, along with his other allegations of

14 misconduct by the treating Defendants, such as the allegations they redacted reports of his

15 x-rays and MRI, failed to include in their medical reports all of the symptoms he reported,

16 or produced fraudulent medical records simply by recording their diagnoses, do not

17 plausibly allege they knew of a substantial risk to his health by delaying or denying

18 treatment, but are all based on what Plaintiff claims is a failure to properly and timely

19 diagnose his condition. Accordingly, the allegations in the First Amended Complaint fail

20 to state an Eighth Amendment claim against Defendants Drs. Corleone, Chau, Casian, Luu,

21 Guldseth, Santos, Mohamed, Sedighi, Silva, Waters, Schultz, Laufik, and Nurses Pasha

22 and Beltran. See Estelle, 429 U.S. at 106 (inadvertent failure to provide medical care, mere

23 negligence or medical malpractice do not state an Eighth Amendment claim); Toguchi, 391

24 F.3d at 1058 (finding that a disagreement over the necessity or extent of medical treatment

25 does not show deliberate indifference).

26 Plaintiff seeks to hold a number of Defendants liable for failing to supervise the

27 treating medical Defendants. He alleges Defendants CDCR Secretaries Allison and Diaz,

28 RJD Wardens Pollard and Madden, RJD Chief Deputy Warden Buckel, RJD Associate

1 Warden Palmer, Chief of Health Care for the CDCR Gates, Director of Corrections

2 Services Foss, and Director of the Division of Adult Institutions Gipson, have “ultimate

3 authority” over those who allegedly denied him adequate medical care, and are liable for

4 the lack of care because they “willfully and wantonly failed to take reasonable action to

5 summon such medical care” and “recklessly allowed the Constitutional violations to

6 continue.” (ECF No. 11 at ¶ 55-57.) Plaintiff states he has never been seen by Defendants

7 RJD Drs. Saidro, Zhang, Messler, Clayton, Roberts, Hodges and Barenchi in person, but

8 seeks to hold them liable as supervisors of the doctors who examined him. (Id. ¶¶ 35, 62-

9 64.) He alleges Defendant RJD Chief Medical Officer Glynn “personally involved herself

10 in violating Plaintiff’s right to adequate medical care by instituting a toxic environment of

11 directing medical doctors under her leadership to practice deliberate indifference to

12 Plaintiff’s serious medical needs.” (Id. ¶ 7.)

13 Supervisory liability is not an independent cause of action under § 1983, and in order

14 to state a § 1983 claim against supervisory personnel Plaintiff must allege both an

15 underlying constitutional violation and a connection between the supervisor’s actions and

16 the violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may

17 be held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal

18 involvement in the constitutional deprivation, or (2) a sufficient causal connection between

19 the supervisor’s wrongful conduct and the constitutional violation.’”), quoting Hansen v.

20 Black, 855 F.2d 642, 646 (9th Cir. 1989). “A person ‘subjects’ another to the deprivation

21 of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

22 participates in another’s affirmative acts or omits to perform an act which he is legally

23 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

24 588 F.2d 740, 743 (9th Cir. 1978); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The

25 inquiry into causation must be individualized and focus on the duties and responsibilities

26 of each individual defendant whose acts or omissions are alleged to have caused a

27 constitutional deprivation.”), citing Rizzo v. Goode, 423 U.S. 362, 370-71, 375-77 (1976).

28 / / /

1 As currently pleaded, there are no factual allegations in the Complaint which, if

2 proven true, would establish that Defendants Allision, Diaz, Madden, Pollard, Buckel,

3 Gipson, Glynn, Gates, Palmer, Foss, Saidro, Zhang, Messler, Clayton, Roberts, Hodges or

4 Barenchi, in conscious disregard to an excessive risk to Plaintiff’s health, were aware

5 Plaintiff was not receiving constitutionally adequate medical care, and what actions they

6 took, or were required to take but failed to take, which plausibly allege they deliberately

7 disregarded such a risk. Rather, Plaintiff merely alleges these Defendants were aware he

8 disagreed with the diagnoses and treatment he received from the treating medical

9 Defendants and should have intervened. Because he has failed to plausibly allege the

10 medical treatment he received was constitutionally inadequate, he has failed to plausibly

11 allege they knew of and deliberately disregarded a serious risk to his health, or that their

12 failure to intervene caused or was necessary to prevent a constitutional violation. Farmer,

13 511 U.S. at 837 (the prison official must “be aware of the facts from which the inference

14 could be drawn that a substantial risk of serious harm exists [and] must also draw the

15 inference.”); Toguchi, 391 F.3d at 1058 (deliberate indifference can be shown where the

16 course of medical treatment was chosen “in conscious disregard of an excessive risk to the

17 prisoner’s health.”)

18 Likewise, Plaintiff’s allegation that several Defendants “went along with” the

19 diagnoses of the treating physicians and could have or should have intervened but did not,

20 fails to plausibly allege an Eighth Amendment violation. Plaintiff alleges Defendants RJD

21 Associate Warden Anderson and RJD Health Care Grievance Compliance Officer Kendall

22 agreed with the treating doctors’ diagnoses and refused Plaintiff an egg-crate mattress.

23 (ECF No. 11 at ¶ 42.) He alleges Nurses Sazon and Sousley had numerous opportunities

24 to intervene and see to it that plaintiff received adequate medical care but rejected several

25 602 grievances and “stood by” as the treating medical doctors misdiagnosed his condition,

26 that he was threatened with disciplinary action by Nurses Millan and Barajas if he did not

27 stop filing duplicative health care requests, and that Nurse Sanchez tried to cover up those

28 threats by stating untruthfully that Millan and Barajas were merely advising Plaintiff how

1 to properly file requests for medical care. (Id. ¶¶ 13, 26, 22, 43, 50-52.) Plaintiff alleges

2 Defendants Drs. Roberts, Hodges, Barenchi, Messler, Clayton, Saidro, Zhang, whom he

3 states he never saw, failed to intervene and reverse the diagnoses and treatment plans of

4 the treating physicians, as did the Defendants who participated in the Population

5 Management Working Session, including Defendants Glynn, Roberts, Hodges, Barenchi,

6 Luu, Chau, Corleone, Silva, Mohamed, Waters, Casian, Laufik, Anderson, Santos,

7 Guldseth, Pahsa, Millan, Sazon, Barajas, Sanchez, Beltran, Clayton, Messler, Zhang,

8 Saidro, Seighi, Schultz, Sousley, Brown, Alanis, Viernes, Tuason, Liuato, Ruiz, N.

9 Mendoza, A. Mendoza, Chanthalangsy, Valencia, Stepheson, Lopez, Wexman, Carneal,

10 Austria, Pak, Paragas, McCann, Topalov, Ivory, Morera, Garcia, Baun, Sihotang, Inglesias,

11 Hughes, Pool, Canela, Webb, Sagiao, Inzunza, Vincent, Hawthorne, Mesina, Stark,

12 McElroy, Tran, Burganas, Santillan, Divina, Eras, Letuligasenoa, Edgar, Ocegueda,

13 Abedeen, Razcon, Denton, Joseph, Sillas, Perez, Hernandez, Tenorio, Basto, Martinez,

14 Zamora, and Domingo. (Id. ¶ 53.)

15 The allegation that these Defendants participated in the alleged deliberate

16 indifference of the treating physicians by failing to intervene when faced with Plaintiff’s

17 complaints that in his opinion he was misdiagnosed by the treating physicians, fails to

18 plausibly allege an Eighth Amendment violation because Plaintiff has not plausibly alleged

19 the treatment he received violated the Eighth Amendment. See Estelle, 429 U.S. at 106

20 (inadvertent failure to provide medical care, mere negligence or medical malpractice and

21 differences of opinion over what medical treatment is proper, do not state an Eighth

22 Amendment claim). In order to state an Eighth Amendment claim against any of these

23 Defendants, Plaintiff must set forth facts which plausibly allege they were aware of facts

24 from which an inference could be drawn that a substantial risk of serious harm existed and

25 actually drew that inference. Farmer, 511 U.S. at 837. Plaintiff has not plausibly alleged

26 they were aware of facts from which an inference could be drawn that he faced a serious

27 risk to his health since he has not plausibly alleged he was receiving unconstitutional

28 medical care. Id.; see also Johnson, 588 F.2d at 743 (“A person ‘subjects’ another to the

1 deprivation of a constitutional right, within the meaning of section 1983, if he does an

2 affirmative act, participates in another’s affirmative acts or omits to perform an act which

3 he is legally required to do that causes the deprivation of which complaint is made.”)

4 Plaintiff alleges he was threatened with disciplinary action for filing grievances and

5 medical requests but does not allege he was ever disciplined. (ECF No. 11 at ¶¶ 50-52.)

6 Such an allegation fails to state a § 1983 Eighth Amendment claim. See Gaut v. Sunn, 810

7 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes the Eighth Amendment to believe a threat

8 constitutes a constitutional wrong.”) He also alleges in an entirely conclusory fashion that

9 “it is quite obvious defendants [are] out to do harm against plaintiff in retaliation for all the

10 complaints he filed and threats of lawsuit.” (Id. ¶ 45.) Such a conclusory allegation fails

11 to state a § 1983 claim. See Iqbal, 556 U.S. at 678 (holding that the “mere possibility of

12 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short

13 of meeting the plausibility standard for pleading a § 1983 claim); Hentz v. Ceniga, 402

14 Fed.Appx. 214, 215 (9th Cir. 2010) (conclusory allegations of retaliation are insufficient

15 to state a claim).

16 Accordingly, the Court sua sponte dismisses the Eighth Amendment claims in the

17 First Amended Complaint for state a claim pursuant to 28 U.S.C. § 1915A. Wilhelm, 680

18 F.3d at 1121; Iqbal, 556 U.S. at 678; Farmer, 511 U.S. at 837.

19 2. ADA Claims

20 Plaintiff alleges he made a reasonable accommodation request explaining what “he

21 is unable to do because of the serious back problem that he has,” which included requests

22 to see an orthopedist, for steroid injections, an egg-crate mattress, a “no full duty chrono,”

23 a high medical risk classification, and a morphine prescription. (ECF No. 11 at ¶ 23.) He

24 alleges Defendant RJD ADA Coordinator Armenta was personally involved in the decision

25 regarding that request and was deliberately indifferent to Plaintiff’s serious medical needs,

26 although there are no allegations regarding what actions Armenta took or was required to

27 take in that regard. (Id. ¶¶ 24, 67.) He alleges Defendant RJD Compliance Analyst Adrian

28 “could have intervened and should have intervened,” during an accommodation panel

1 meeting, but instead aided and abetted the doctor Defendants by denying his requests. (Id.

2 ¶ 26, 87.) He alleges his requests for a back brace, morphine, referral to an orthopedic

3 specialist or surgeon, an MRI, a CAT-scan, and physical therapy were all denied because

4 a “handful of defendant” medical doctors and nurses told him: “All you have is arthritis.

5 We do not provide ‘back brace’ or morphine for people with arthritis.” (Id. ¶ 28.)

6 The ADA applies in the prison context. See 42 U.S.C. § 12131(1)(B); U.S. v.

7 Georgia 546 U.S. 151, 154 (2006). In order to state a claim under Title II of the ADA,

8 however, a plaintiff must allege:

9 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to

participate in or receive the benefit of some public entity’s services, programs,

10

or activities;’ (3) he ‘was either excluded from participation in or denied the

11 benefits of the public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,

12

denial of benefits, or discrimination was by reason of [his] disability.’

13

14 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007).

15 Plaintiff may not pursue an ADA claim against the individual Defendants in their

16 individual capacities. See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1038

17 (9th Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the

18 ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (holding that the “ADA

19 applies only to public entities.”) The CDCR can be liable under the ADA “if it intentionally

20 or with deliberate indifference fails to provide meaningful access or reasonable

21 accommodation to disabled persons.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir.

22 2008). But because Plaintiff names only individuals as Defendants, he fails to state an

23 ADA claim upon which relief can be granted. Id.; see also Vinson v. Thomas, 288 F.3d

24 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983

25 against a State official in [his or] her individual capacity to vindicate rights created by Title

26 II of the ADA.”) In any case, Plaintiff’s allegations of disagreement with his medical

27 treatment and discontinuation of his medication, although potentially cognizable under the

28 Eighth Amendment, are unlikely to state an ADA claim simply by being recast as an ADA

1 claim. See e.g. Buchanan v. Maine, 469 F.3d 158, 174 (1st Cir. 2006) (noting that the ADA

2 does not set forth a standard of care for medical treatment), citing Olmstead v. Zimring,

3 527 U.S. 581, 603 n.14 (1999) (“We do not hold in this opinion that the ADA imposes on

4 the States a ‘standard of care’ for whatever medical services they render . . .”) Plaintiff has

5 also failed to allege facts from which a plausible inference could be drawn that Defendants’

6 actions were taken “by reason of his disability,” as opposed to legitimate disagreements

7 regarding his diagnosis and the proper course of treatment. O’Guinn, 502 F.3d at 1060.

8 The Court dismisses the ADA claims from the First Amended Complaint sua sponte

9 for failure to state a claim. See 28 U.S.C. § 1915A; Wilhelm, 680 F.3d at 1121; Iqbal, 556

10 U.S. at 678.

11 3. Equal Protection Claims

12 The Equal Protection Clause of the Fourteenth Amendment requires persons who

13 are similarly situated to be treated alike. City of Cleburne v. Cleburne Living Center, Inc.,

14 473 U.S. 432, 439 (1985). A plaintiff can state an equal protection claim by setting forth

15 facts which plausibly allege a defendant intentionally discriminated against him or her

16 based on his membership in a protected class. Hartmann v. California Dep’t of Corr. &

17 Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Maynard v. City of San Jose, 37 F.3d 1396,

18 1404 (9th Cir. 1994) (“Intentional discrimination means that a defendant acted at least in

19 part because of a plaintiff’s protected status.”)

20 To the extent Plaintiff claims he received different medical treatment than persons

21 who are not incarcerated he has not alleged membership in a protected class. See United

22 States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (“[N]either prisoners nor ‘persons

23 convicted of crimes’ constitute a suspect class for equal protection purposes.”), quoting

24 Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999); Fields v. Legacy Health Sys., 413

25 F.3d 943, 955 (9th Cir. 2005) (identifying “race, alienage, national origin, [and] sex” as

26 examples of characteristics protected by the Equal Protection Clause).

27 An equal protection claim can be brought under a “class of one” claim where

28 Plaintiff is treated differently than similarly situated individuals without a rational basis for

1 the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);

2 Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 602 (2008) (“[W]hen it appears that an

3 individual is being singled out by the government, the specter of arbitrary classification is

4 fairly raised, and the Equal Protection Clause requires a ‘rational basis for the difference

5 in treatment.’”), quoting Olech, 528 U.S. at 564. However, there are no allegations in the

6 First Amended Complaint which plausibly suggest Plaintiff was treated differently than

7 anyone else or that he was treated arbitrarily. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d

8 580, 592 (9th Cir. 2008) (“[T]he plaintiff in a ‘class of one’ case does not allege that the

9 defendants discriminated against a group with whom she shares characteristics, but rather

10 that the defendants simply harbor animus against her in particular and therefore treated her

11 arbitrarily.”)

12 Accordingly, the Court sua sponte dismisses Plaintiff’s Fourteenth Amendment

13 equal protection claim from the First Amended Complaint for failure to state a claim. See

14 28 U.S.C. § 1915A; Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 678.

15 4. Medical Malpractice Claims

16 Plaintiff alleges Defendant Dr. Tung, a neurosurgeon at Tri-City Hospital, and

17 Defendant Dr. Hofmeister, an orthopedic hand surgeon at Alvarado Hospital, committed

18 medical malpractice by redacting a medical report and regarding medical treatment of his

19 hand. (ECF No. 11 at ¶ 59-60, 65, 80.) He also seeks to bring claims for state torts of

20 fraud, personal injury, breach of contract, and infliction of emotional distress. (Id. ¶ 1.)

21 A Court may “decline to exercise supplemental jurisdiction” over any supplemental

22 state law claim if it “has dismissed all claims over which it has original jurisdiction.” 28

23 U.S.C. § 1367(c); Sanford v. Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n

24 the usual case in which all federal-law claims are eliminated before trial, the balance of

25 factors to be considered under the pendent jurisdiction doctrine - judicial economy,

26 convenience, fairness, and comity - will point toward declining to exercise jurisdiction over

27 the remaining state-law claims.”) The Court declines to exercise supplemental jurisdiction

28 over any state law claims at this time.

1 D. Leave to Amend

2 In light of his pro se status, the Court grants Plaintiff leave to amend to attempt to

3 || address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 791 F.3d

4 || 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without

5 || leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not

6 cured by amendment.’’’), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

7 Conclusion and Order

8 Good cause appearing, the Court DISMISSES Plaintiffs First Amended Complaint

9 || (ECF No. 11) pursuant to 28 U.S.C. § 1915A for failing to state a claim upon which relief

10 |}may be granted and GRANTS Plaintiff forty-five (45) days leave from the date of this

11 |}Order in which to file a Second Amended Complaint which cures the deficiencies of

12 || pleading noted. Plaintiff's Second Amended Complaint must be complete by itself without

13 || reference to any prior version of his pleading, and any defendants not named and any claims

14 || not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,

15 || 896 F.2d at 1546 (‘[A]n amended pleading supersedes the original.”); Lacey v.

16 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave

17 amend which are not re-alleged in an amended pleading may be “considered waived if

18 |/not repled.”’) If Plaintiff fails to timely amend, the Court will enter a final Order dismissing

19 || this civil action based both on Plaintiff’s failure to state a claim upon which relief can be

20 || granted pursuant to 28 U.S.C. § 1915A and his failure to prosecute in compliance with a

21 || court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)

22 a plaintiff does not take advantage of the opportunity to fix his complaint, a district

23 || court may convert the dismissal of the complaint into dismissal of the entire action.’’)

24 IT IS SO ORDERED.

25 ||Dated: April 11, 2022 €

26

Hon. Cathy Ann Bencivengo

27 United States District Judge

28

20