Antonio A. Calles v. California Department of Corrections and Rehabilitation et al

Filing 32

ORDER TO SHOW CAUSE Re: Lack of Prosecution by Magistrate Judge Alka Sagar. Plaintiff is ORDERED TO SHOW CAUSE, in writing,no later than October 20, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (See Order for complete details) (Attachments: # 1 Courts May 11, 2017, Order, # 2 Notice of Dismissal (Blank), # 3 Civil Rights Complaint (Blank)) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANTONIO A. CALLES, Plaintiff, 12 13 14 v. DR. JOHANNES HAAR, Defendant. 15 ) ) ) ) ) ) ) ) ) ) Case No. EDCV 16-1382-R (AS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS 16 17 I. 18 INTRODUCTION 19 20 On June 27, 2016, Antonio A. Calles (“Plaintiff”), then an inmate 21 at the California Men’s Colony (“CMC”) in San Luis Obispo, California, 22 filed a Complaint pursuant to 42 U.S.C. § 1983, (“Compl.,” Docket Entry 23 No. 1), asserting claims against (1) the California Department of 24 Corrections and Rehabilitation (“CDCR”); and (2) Dr. Johannes Haar 25 (“Haar”) in his individual and official capacities. (Compl. at 1, 3 26 (continuous pagination of Plaintiff’s filings used throughout this 27 Order)). 28 On July 27, 2016, the Court issued an order dismissing the 1 complaint with leave to amend for failure to state a claim. 2 (Docket Entry No. 5). 3 4 On August 25, 2016, Plaintiff filed a First Amended Complaint 5 asserting claims against Haar in his individual capacity. (“FAC,” 6 Docket Entry No. 6). 7 First Amended Complaint be served on Haar in his individual capacity. 8 (Docket Entry Nos. 7, 8, 9). 9 (Docket Entry No. 18). On September 30, 2016, the Court ordered that the On January 6, 2017, Haar filed an Answer. 10 11 On January 20, 2017, Haar filed the instant Motion for Judgment on 12 the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). 13 (“Motion,” Docket Entry No. 20). 14 “Response” to the Motion. (“Response,” Docket Entry No. 27). On April 15 20, 2017, Haar filed a Reply in Further Support of the Motion. 16 (“Reply,” Docket Entry No. 28). 17 Surreply 18 (“Surreply,” Docket Entry No. 29).1 styled as an On April 5, 2017, Plaintiff filed a On May 5, 2017, Plaintiff filed a additional “Response” to the Motion. 19 1 20 21 22 23 24 25 26 27 28 Haar filed Objections to the Surreply, arguing that the Surreply was filed without prior written permission of the Court in violation of C.D. Cal. Rule 7-10. (Docket Entry No. 30 at 2). The Court agrees that the Surreply violates C.D. Cal. Rule 7-10, but the Surreply raises no new claims and, as discussed infra, it clarifies and arguably limits the nature of Plaintiff’s claims and the scope of this action. (Surreply at 1-3 (setting forth several propositions that Plaintiff “does not argue” as well as “[t]he questions that must be addressed”)). The Court therefore exercises its discretion to OVERRULE Haar’s Objections. See Harper v. Ramirez, 2015 WL 9918409 at *2 (C.D. Cal. 2015) (acknowledging that pro se surreply violated C.D. Cal. Rule 7-10 but nevertheless considering the surreply); Schmidt v. Shah, 696 F. Supp. 2d 44, 59 (D.D.C. 2010) (“The decision to grant or deny leave to file a surreply is committed to the sound discretion of the court.”). 2 1 For the reasons set forth below, Haar’s Motion is granted insofar 2 as the First Amended Complaint is dismissed, but the Motion is denied 3 insofar as the Motion seeks dismissal with prejudice and without leave 4 to amend. 5 leave to amend.2 The First Amended Complaint is therefore dismissed with 6 7 II. 8 PLAINTIFF’S ALLEGATIONS 9 10 Plaintiff suffers from bilateral foot pain, fibromas in the arches (See FAC at 5-6). Before the 11 of both feet, and plantar fasciitis. 12 events at issue in this action, Plaintiff was an inmate at Centinela 13 State Prison, where he was treated by a podiatrist and orthopedic 14 specialist and received orthopedic soft sole shoes and orthopedic 15 insoles – 16 January 2013, following Plaintiff’s transfer to CMC, Plaintiff began 17 visiting Haar for medical care. i.e., orthopedic “appliances.” (See id.). Starting in (See id.). 18 19 At a chronic care office visit on March 8, 2013, Plaintiff 20 informed Haar that, while he was at Centinela State Prison, Plaintiff 21 had been treated by a podiatrist and orthopedic specialist for his 22 fibromas and plantar fasciitis. 23 Haar that his orthopedic appliances were worn out and needed to be 24 replaced. (Id.). (Id. at 6). Plaintiff also informed Haar said that, if Plaintiff wanted new shoes, he 25 26 27 28 2 Magistrate Judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 3 1 should “ask [his] family for a pair,” and Haar informed Plaintiff that 2 “this matter was to be heard at a later date.” 3 treatment notes from that visit do not describe this conversation: Haar 4 noted “some tenderness on the plantar surface” but “no indication for 5 [Plaintiff] to having [sic] orthopedic shoes.”3 6 treatment notes state that Haar would order x-rays, but Plaintiff’s 7 symptoms were “very more consistent with plantar fasciitis” and Haar 8 would also give Plaintiff a “stretching exercise sheet” for that 9 condition. (Id.). Haar’s (Id. at 15). The (Id.). 10 11 At a chronic care visit on June 7, 2013, Plaintiff requested that 12 Haar examine both of the arches of Plaintiff’s feet “where the fibromas 13 could be found.” (Id. at 6). Haar visually inspected Plaintiff’s feet 14 but did not perform a physical examination. 15 again requested to be seen by a podiatrist or orthopedic specialist to 16 ensure that he would receive the “proper appliances.” (Id.). Haar did 17 not refer Plaintiff to a podiatrist or orthopedic specialist but 18 referred Plaintiff to a physical therapist and ordered that Plaintiff 19 be treated with pain medication and foot injections. (Id.). Plaintiff 20 informed Haar that his proposed treatments had not proven effective in 21 the past and that Plaintiff’s foot pain had been alleviated by the use 22 of orthopedic appliances. 23 that Plaintiff “would refuse to administer” pain medications. (Id.). (See id. at 7). Plaintiff According to Plaintiff, Haar knew (Id.). 24 25 3 26 27 28 In adjudicating Haar’s Motion, the Court considers “material which is properly submitted as part of the [First Amended C]omplaint,” including exhibits. See Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 4 1 Haar’s treatment notes from the visit state that “[i]t is not clear 2 . . . that [diabetic insoles and diabetic shoes] are indicated” and 3 that Plaintiff “has a normal appearing foot with normal x-rays, but we 4 will see what Medical Administration has to say and see if perhaps an 5 injection for the plantar fascia may be in order.” 6 According to the treatment notes, Plaintiff was “not willing” to take 7 Pamelor “when they crush and float On-Line.”4 (Id. at 17). (Id. at 18). 8 9 10 On June 9, 2013, a pain specialist evaluated Plaintiff and (Id. at 8). recommended orthopedic appliances. 11 During a September 20, 2013, office visit, Plaintiff contends that 12 13 Haar informed Plaintiff that 14 “bilateral foot issues because [Plaintiff] had already been seen by a 15 pain specialist and the issue was considered died.” 16 Plaintiff walked out of Haar’s office. 17 notes indicate that Haar informed Plaintiff that he would discuss 18 Plaintiff’s “pain 19 Plaintiff’s other 20 treatment notes, Haar ultimately agreed to discuss Plaintiff’s foot 21 pain when Plaintiff became argumentative, but Plaintiff nevertheless 22 left the room. (Id.). Haar’s treatment notes indicate that Haar would 23 refer Plaintiff “to Mental Health for evaluation as he clearly has issues” he only medications. would address (Id. at 8). after (Id. not at Haar 22). Plaintiff’s (Id. at 8). Haar’s treatment finished discussing According to the 24 25 26 27 28 4 Pamelor is a drug commonly prescribed “off-label” as a treatment for chronic pain. See Cox v. Levenhagen, 2013 WL 3322034 at *1 (N.D. Ind. 2013). “Crushing and floating” a medication involves grinding the medication into a powder and placing it in water. See Wright v. Swingle, 2011 WL 2622689 at *2 n.4 (E.D. Cal. 2011). 5 1 anger issues and perhaps 2 indicated.” 3 Plaintiff had refused physical therapy, Pamelor, and carbamazepine.5 4 (Id. at 22). (Id. at 23). some psychiatric treatment might be Haar’s treatment notes also state that 5 6 Plaintiff later learned from reading Haar’s treatment notes that 7 Haar had changed Plaintiff’s medication without consulting Plaintiff. 8 (Id. 9 medication “to cover the fact that [Haar] refused to discuss the at 8). According to Plaintiff, Haar changed Plaintiff’s 10 [Plaintiff’s] chief complaint [of] his bilateral foot issues.” 11 Plaintiff acknowledges that Haar ordered “extra depth shoes with arch 12 supports” after the office visit, but claims that these were the “wrong 13 appliances” to meet Plaintiff’s needs. 14 2013 office visit, Plaintiff “became aware that [Haar] was not working 15 in [Plaintiff’s] best interest and from this point forward [Plaintiff] 16 simply refused to be seen by [Haar]” until November 3, 2015. 17 8). (Id.). (Id.). After the September (Id. at 18 19 On October 10, 2013, Plaintiff was evaluated by a mental health 20 professional to discuss his unwillingness to be treated by Haar. (Id. 21 at 9). Plaintiff told the mental health professional that he was angry 22 because Haar refused to refer Plaintiff to a podiatrist and “knowingly” 23 ordered the wrong appliances to treat Plaintiff’s foot pain. 24 The mental health professional determined that Plaintiff did not meet (Id.). 25 26 27 28 5 Carbamazepine is an anticonvulsant sometimes prescribed to treat nerve pain. See Krejci v. Comm’r of Soc. Sec., 2016 WL 4651371 at *4 n.5 (M.D. Fla. 2016). 6 1 the criteria for mental health treatment. (Id. at 9, 25). Haar also 2 referred Plaintiff to mental health treatment in November 2014 and 3 August 2015. (Id.). 4 5 In November 2014, January 2015, and June 2015, Haar wrote progress 6 notes indicating that Plaintiff had requested medical treatment but 7 refused to meet with Haar. (See id. at 36-37, 41-42). 8 9 On August 13, 2015, a CMC nurse submitted on Plaintiff’s behalf a (Id. at 10; see also Compl. at 10 7362 request for healthcare services. 11 101). 12 foot specialist “due to extreme pain, getting worse with every step.” 13 (Compl. at 101). 14 following three months, several other 7362 forms complaining of foot 15 pain were filed and reviewed by a triage nurse, who prepared “encounter 16 form[s]” for submission to Haar. The form requested that Plaintiff be seen by a podiatrist or The form was sent to Haar. (FAC at 10). During the (Id.). 17 18 By the end of October 2015, Plaintiff “could no longer tolerat[e] 19 the excruciating bilateral foot pain.” (Id. at 10). Plaintiff asked 20 to visit Haar, requesting that a correctional officer be present. 21 (Id.). 22 address [Plaintiff’s] bilateral foot pain.” 23 if Plaintiff wanted to be “seen for his foot problems,” Plaintiff could 24 submit a 7362 request form. (Id.). Plaintiff contends that “there was 25 no reason” for Haar to require Plaintiff to file another 7362 form 26 because several 7362 forms and “encounter forms” addressing Plaintiff’s 27 foot pain had already been submitted to Haar. 28 treatment notes from this visit indicate that Plaintiff’s “sign out During a November 3, 2015 office visit, Haar “refuse[d] to 7 (Id.). Haar stated that, (Id. at 11). Haar’s 1 report” had requested “[f]ollowup of the Chronic Care Program” for 2 diabetes, hypertension, hypothyroidism and hyperlipidemia. 3 55). 4 indicated that he would “only [be seen] for [his] feet,” and Haar 5 stated that the visit was for an evaluation of “his other medical 6 issues.” 7 stated that he “would only be seen for his feet,” Haar told him to 8 “submit a 7362[] to be seen for his feet,” and Plaintiff “made 9 disparaging remarks and walked out the door.” (Id.). (Id. at According to the treatment notes, during the meeting Plaintiff (Id.). According to the treatment notes, Plaintiff again 10 By November 29, 2015, Plaintiff “could no longer tolerat[e] or 11 12 ambulate because of the extreme foot pain.” (Id. at 11). 13 14 On December 3, 2015, Plaintiff was seen by a different physician, 15 Dr. Mark Ward, “who immediately performed a physical examination of 16 [Plaintiff’s] feet and found that both feet had fibromas on both arch 17 areas of the feet and one large mass/lump on the right arch area of the 18 right 19 recommended and ordered a MRI, and referred [Plaintiff] to a podiatrist 20 and a pain management specialist.” 21 MRI that Dr. Ward had ordered was performed. foot.” (Id. at 11). “Without question Ward immediately On January 25, 2016, the (Id.). (Id.). 22 23 On February 22, 2016, Plaintiff saw podiatrist Dr. James W. (Id. at 11, 60-62). Dr. Breedlove prepared a report 24 Breedlove. 25 recommending that Plaintiff be provided with custom molded orthopedic 26 shoes with orthopedic insoles. 27 10, 2016, Dr. Breedlove noted that Plaintiff still had not received the 28 recommended orthopedic shoes and insoles. (Id. at 62). 8 In a letter dated June (Id. at 11, 63-64). The 1 First Amended Complaint claims that Plaintiff has not yet received the 2 proper shoes. (Id. at 11). 3 4 Plaintiff alleges that Haar’s conduct violated the Eighth 5 Amendment and California law. (Id.). Plaintiff seeks money damages. 6 (Id. at 13). 7 8 III. 9 STANDARD OF REVIEW 10 11 Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”) provides 12 that, “[a]fter the pleadings are closed — but early enough not to delay 13 trial — a party may move for judgment on the pleadings.” 14 P. 12(c). “Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and 15 . . . ‘the same standard of review’ applies to motions brought under 16 either rule.” See United States ex rel. Cafasso v. Gen. Dynamics C4 17 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting Dworkin v. 18 Hustler Magazine, Inc., 867 F.2d 1118, 1192 (9th Cir. 1989)). 19 the relevant inquiry is whether a pleading “fail[s] to state a claim 20 upon which relief can be granted[.]” Fed. R. Civ. Thus, See Fed. R. Civ. P. 12(b)(6). 21 22 Dismissal for failure to state a claim is appropriate if Plaintiff 23 fails to proffer sufficient “facts to state a claim to relief that is 24 plausible on its face.” 25 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 26 facial plausibility when the plaintiff pleads factual content that 27 allows the court to draw the reasonable inference that the defendant is 28 liable for the misconduct alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 “A claim has Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 9 1 2013). Although a plaintiff must provide “more than labels and 2 conclusions, and a formulaic recitation of the elements of a cause of 3 action will not do,” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678, 4 “[s]pecific facts are not necessary; the [First Amended Complaint] need 5 only give the defendant fair notice of what the . . . claim is and the 6 grounds upon which it rests.” 7 (2007) (per curiam) (citations and internal quotation marks omitted); 8 see also Twombly, 550 U.S. at 555. Erickson v. Pardus, 551 U.S. 89, 93 9 10 In determining whether a plaintiff has stated a facially plausible 11 claim, a court must accept the allegations in the complaint as true, 12 Erickson, 551 U.S. at 93-94; Albright v. Oliver, 510 U.S. 266, 267 13 (1994), construe the pleading in the light most favorable to the 14 pleading party, and resolve all doubts in the pleader’s favor. Jenkins 15 v. McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122, 16 1125 (9th Cir. 2005). 17 true mere legal conclusions. 18 recitals of elements of a cause of action, supported by mere conclusory 19 statements, do not suffice.” (citing Twombly, 550 U.S. at 555)). 20 court must set aside conclusory statements and bare allegations and 21 then consider whether a complaint plausibly states a claim for relief. 22 See id. at 679. A court, however, does not have to accept as See Iqbal, 556 U.S. at 678 (“Threadbare The 23 24 In addition, pro se pleadings are “to be liberally construed” and 25 held to a less stringent standard than those drafted by a lawyer. 26 Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972) 27 (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 28 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings; accordingly, we 10 1 continue to construe pro se filings liberally when evaluating them 2 under Iqbal.”). A court, however, may not supply essential elements of 3 a claim that the pro se plaintiff did not initially plead. 4 Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992). 5 to state a claim can be warranted based on either the lack of a 6 cognizable legal theory or the absence of factual support for a 7 cognizable legal theory. 8 521 F.3d 1097, 1104 (9th Cir. 2008). 9 for failure to state a claim if it discloses some fact or complete Pena v. Dismissal for failure See Mendiondo v. Centinela Hosp. Med. Ctr., A complaint may also be dismissed 10 defense that will necessarily defeat the claim. 11 745 F.2d 1221, 1228-29 (9th Cir. 1984). Franklin v. Murphy, 12 13 IV. 14 DISCUSSION 15 16 For the following reasons, Haar’s Motion is granted insofar as the 17 First Amended Complaint is dismissed, but the Motion is denied insofar 18 as the Motion seeks dismissal with prejudice and without leave to 19 amend. 20 to amend. The First Amended Complaint is therefore dismissed with leave 21 22 A. 23 Plaintiff’s § 1983 Inadequate Medical Care Claim Is Subject to Dismissal 24 To state a § 1983 claim for inadequate medical care that violates 25 26 the Eighth Amendment’s 27 punishment, a plaintiff must allege acts or omissions by a prison 28 official that are proscription sufficiently against harmful to cruel evidence indifference to an inmate’s “serious medical needs.” 11 and unusual deliberate Farmer v. 1 Brennan, 511 U.S. 825, 834 (1994); see also Estelle v. Gamble, 429 U.S. 2 97, 104 (1976). 3 plaintiff to establish that he has a serious medical need. A plaintiff 4 can do so by demonstrating that a failure to treat the plaintiff’s 5 condition could result in further significant injury or the unnecessary 6 and wanton infliction of pain. 7 1066 (9th Cir. 2014) (citation omitted); see also Lopez v. Smith, 203 8 F.3d 1122, 1131 (9th Cir. 2000) (en banc). 9 medical need is “serious,” a court should consider whether a reasonable 10 doctor would think that the condition is worthy of comment, the 11 condition significantly affects the prisoner’s daily activities, and 12 the condition is chronic and accompanied by substantial pain. 13 203 F.3d at 1131-32; Doty v. County of Lassen, 37 F.3d 540, 546 n.3 14 (9th Cir. 1994). 15 to satisfy the “serious medical need” requirement. The objective component of this standard requires a Colwell v. Bannister, 763 F.3d 1060, In assessing whether a Lopez, As Haar acknowledges, Plaintiff’s allegations appear (Motion at 8). 16 17 Although Plaintiff satisfies the objective component of an 18 inadequate medical care claim, he does not establish the subjective 19 “deliberate indifference” component. 20 “deliberate indifference . . . only if the [official] knows of and 21 disregards an excessive risk to inmate health and safety.” 22 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 23 “deliberate indifference,” a correctional official must “both be aware 24 of facts from which the inference could be drawn that a substantial 25 risk of serious harm exists, and he must also draw the inference.” 26 Farmer, 511 U.S. at 837. 27 significant risk that he should have perceived but did not, while no 28 cause for commendation, cannot . . . be condemned as the infliction of A prison official acts with Toguchi v. To be liable for “[A]n official’s failure to alleviate a punishment.” Id. at 838. Thus, inadequate treatment due to mistake or 12 1 negligence does not amount to a constitutional violation. Estelle, 429 2 U.S. at 105-06 (“[A] complaint that a physician has been negligent in 3 diagnosing or treating a medical condition does not state a valid claim 4 of 5 Toguchi, 391 F.3d at 1059. medical mistreatment under the Eighth Amendment.”); see also 6 7 Similarly, a difference of opinion between medical professionals 8 concerning the appropriate course of treatment does not amount to 9 deliberate indifference to a serious medical need. Toguchi, 391 F.3d 10 at 1059-60; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 11 Instead, a prisoner “must show that the course of treatment the 12 doctor[] chose was medically unacceptable under the circumstances” and 13 that the doctor “chose this course in conscious disregard of an 14 excessive risk to [the prisoner’s] health.” 15 F.3d 330, 332 (9th Cir. 1996); see also Toguchi, 391 F.3d at 1058. 16 inmate’s disagreement with his medical treatment or a difference of 17 opinion over the type or course of treatment also does not support an 18 Eighth Amendment claim. 19 State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (citation 20 omitted); Buckley v. Gomez, 36 F. Supp. 2d 1216, 1225 (S.D. Cal. 1997). Jackson v. McIntosh, 90 An Toguchi, 391 F.3d at 1058; Franklin v. Or. 21 22 Plaintiff alleges that Haar: (1) failed to provide Plaintiff with 23 appropriate orthopedic 24 specialists; (2) prescribed treatments that had previously failed to 25 alleviate Plaintiff’s symptoms and medications that Haar knew Plaintiff 26 would not take and, on one occasion, provided Plaintiff with the 27 “wrong” 28 examination, appliances; inspection. i.e., appliances and a (3) physical and failed refer to examination him perform rather to an appropriate appropriate than (FAC at 6-10; Response at 1-2; Surreply at 3). 13 a visual Plaintiff 1 also observes that Dr. Ward “immediately” recommended an MRI and a 2 referral to a podiatrist and pain management specialist and Dr. 3 Breedlove prescribed orthopedic shoes with orthopedic insoles. (FAC at 4 11; Response at 1-3; Surreply at 3). 5 6 The foregoing facts, even if true, do not establish that Haar 7 acted with deliberate indifference. 8 medical treatment but rather ordered various alternative treatments. 9 Neither Plaintiff’s disagreement Haar did not deny Plaintiff all with Haar’s course of treatment 10 choices nor the different and allegedly more successful treatments 11 prescribed by Dr. Ward and Dr. Breedlove support an Eighth Amendment 12 claim. 13 Franklin, 662 F.2d at 1344; Sanchez, 891 F.2d at 242; Buckley, 36 F. 14 Supp. 2d at 1225. Moreover, even assuming that some of Haar’s 15 recommendations inappropriate 16 allegations amount at most to negligence, and negligent conduct is not 17 sufficient to establish the deliberate indifference required to state 18 an Eighth Amendment claim. Cf. Toguchi, 391 F.3d at 1058-60; Jackson, 90 F.3d at 332; were under the circumstances, such Cf. Toguchi, 391 F.3d at 1059. 19 20 Instead, to state a claim of deliberate indifference premised upon 21 Haar’s course of treatment and the different treatments prescribed by 22 Dr. Ward and Dr. Breedlove, Plaintiff must allege facts plausibly 23 suggesting that treatment provided by Haar was “medically unacceptable 24 under the circumstances” and that Haar “chose this course in conscious 25 disregard of an excessive risk to [Plaintiff’s] health.” Jackson, 90 26 F.3d at 332; see also Toguchi, 391 F.3d at 1058. 27 28 The allegations in the First Amended Complaint, even if true, do not satisfy the foregoing standard. 14 To the contrary, Plaintiff 1 acknowledges and the First Amended Complaint, and its exhibits 2 establish, that Haar actively treated Plaintiff’s bilateral foot pain 3 with numerous interventions. 4 Surreply at 2-3 (acknowledging that Haar ordered x-rays, various 5 medications, physical therapy, a referral to a pain specialist, and 6 “wrong” orthopedic appliances)). 7 exhibits establish, that Plaintiff refused to meet with Haar between 8 September 2013 and November 2015. 9 Surreply at 2-3 (“The plaintiff does not argue that he refused to be 10 seen or treated by the defendant [s]tarting in September of 2013. 11 Plaintiff simply refused to see [Haar] because the plaintiff not only 12 f[e]ared [f]or his health and safety but also did not want to argue or 13 be threaten by [Haar] anymore.”)). (FAC at 15-17, 22-23, 55-56; see also Plaintiff also acknowledges, and the (FAC at 31-32, 34-38, 41; see also 14 15 The First Amended Complaint also observes that Haar failed to 16 discuss Plaintiff’s foot pain during the November 3, 2015 visit, 17 further noting that Haar would not discuss Plaintiff’s foot pain 18 without an additional 7362 form even though Plaintiff had already filed 19 several. 20 an independent “failure to treat” claim based on this visit; instead, 21 it appears that these allegations are provided in further support of 22 allegations that Haar had repeatedly been informed of the nature of 23 Plaintiff’s foot pain and, had he not been acting with reckless 24 disregard for Plaintiff’s health, he would have prescribed proper 25 appliances and a referral to a podiatrist or orthopedic specialist. 26 (Surreply at 1, 3 (“Plaintiff does not argue that the defendant did not 27 provide medical care, but on[ly] argues that [] the defendant refused 28 to provide the correct medical care . . . The questions that must be (FAC at 10-11). However, Plaintiff does not appear to raise addressed: (a) [w]hy did it take a neutral physician (3 yr. later) to 15 1 perform a 30 second examination and without question executes the 2 proper medical procedure that by sending the plaintiff to be seen by a 3 podiatry who also without question orders the correct appliances that 4 the plaintiff had been requesting for Well over three (3) years[;] 5 (b) The medical history i.e. the plaintiffs exhibits not only provides 6 the evidence that shows the defendants course of treatment i.e. the 7 lack of correct treatment but also shows that he failed to refer the 8 plaintiff to the correct medical physician and/or order the correct 9 medical appliances.”)). 10 11 Also, as the Court noted supra, Haar actively treated Plaintiff’s 12 foot pain throughout the period when Plaintiff was under his care, 13 notwithstanding Plaintiff’s repeated refusal to meet with Haar between 14 September 2013 and November 2015. 15 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (“In determining 16 deliberate indifference, we scrutinize the particular facts and look 17 for substantial indifference in the individual case, indicating more 18 than mere negligence or isolated occurrences of neglect.”)). Moreover, 19 as the Court has previously found, “Haar did not refuse to treat 20 Plaintiff, but rather, as alleged, informed Plaintiff that he was 21 willing to address Plaintiff’s other health concerns on the date of 22 Plaintiff’s visit and would address Plaintiff’s foot pain on another 23 date provided that Plaintiff filed a specific written request to 24 address his foot pain.” 25 does not appear to assert any claims based specifically on Haar’s 26 conduct during the November 3, 2015 visit, nor is it obvious that a 27 plausible deliberate indifference claim could be raised on this basis. (See ODLA at 14); see also Wood v. (ODLA at 14). 28 16 The First Amended Complaint 1 For the foregoing reasons, Plaintiff has not alleged acts or 2 omissions by Haar sufficient to evidence deliberate indifference to 3 Plaintiff’s serious medical needs. 4 Plaintiff, therefore, has not stated an Eighth Amendment § 1983 claim 5 for inadequate medical care against Haar in his individual capacity.6 Cf. Farmer, 511 U.S. at 834. 6 7 B. Leave To Amend Shall Be Granted 8 9 Federal Rule of Civil Procedure 15(a) provides in relevant part 10 that “a party may amend its pleading only with the opposing party’s 11 written consent or the court’s leave. 12 leave when justice so requires.” 13 determining whether to grant leave to amend, courts weigh the following 14 factors: “undue delay, bad faith or dilatory motive on the part of [the 15 party who wishes to amend a pleading], repeated failure to cure 16 deficiencies by amendments previously allowed, undue prejudice to the 17 opposing party by virtue of allowance of the amendment, [and] futility 18 of amendment[.]” 19 court 20 particularly where the court has already given a plaintiff one or more 21 opportunities to amend his complaint to allege federal claims. 22 Fosburg, 646 F.2d 342, 347 (9th Cir. 1980). has broad The court should freely grant Fed. R. Civ. P. 15(a)(2). Foman v. Davis, 371 U.S. 178, 182 (1962). discretion to grant or deny leave When A district to amend, Mir v. 23 24 Haar alleges that, because Plaintiff has already received one 25 opportunity to amend his complaint, granting further leave to amend 26 6 27 28 Because Plaintiff’s federal claims are subject to dismissal as currently pled, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. See 28 U.S.C. § 1367(c)(3). Accordingly, Plaintiff’s state law claims are dismissed without prejudice. 17 1 would be futile. (See Motion at 10; Reply at 5). However, the Court 2 cannot conclude with certainty that granting further leave to amend 3 would be futile, particularly after granting the pro se Plaintiff only 4 one opportunity to amend his complaint. 5 opportunity to amend is consistent with the principle of granting leave 6 “freely . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), and 7 is within the district court’s broad discretion. Mir, 646 F.2d at 347. 8 Therefore, the First Amended Complaint is dismissed with leave to 9 amend. Granting Plaintiff a final 10 11 V. 12 ORDER 13 14 For the reasons discussed above, Haar’s Motion is GRANTED insofar 15 as the First Amended Complaint is dismissed, but the Motion is DENIED 16 insofar as the Motion seeks dismissal with prejudice and without leave 17 to amend. 18 LEAVE TO AMEND. The First Amended Complaint is therefore DISMISSED WITH 19 20 If Plaintiff still wishes to pursue this action, he shall file a 21 Second Amended Complaint no later than 30 days from the date of this 22 Order. 23 discussed above and shall be complete in itself without reference to 24 any prior complaint. 25 filed as a matter of right or allowed by order of the Court shall be 26 complete including exhibits. 27 the prior, superseded pleading.”). 28 allege and plead any viable claims in any prior complaint again. The Second Amended Complaint must cure the pleading defects See C.D. Cal. R. 15-2 (“Every amended pleading The amended pleading shall not refer to 18 This means that Plaintiff must 1 In any amended complaint, Plaintiff should identify the nature of 2 each separate legal claim and confine his allegations to those 3 operative facts supporting each of his claims. For each separate legal 4 claim, Plaintiff should state the civil right that has been violated 5 and the supporting facts for that claim only. Pursuant to Federal Rule 6 of Civil Procedure 8(a), all that is required is a “short and plain 7 statement of the claim showing that the pleader is entitled to relief.” 8 Plaintiff, however, is advised that the allegations in the Second 9 Amended Complaint should be consistent with the authorities discussed 10 above. In addition, the Second Amended Complaint may not include new 11 defendants or new claims not reasonably related to the allegations in 12 his prior pleadings. 13 standard civil rights complaint form when filing any amended complaint, 14 a copy of which is attached. Plaintiff is strongly encouraged to use the 15 16 Plaintiff is explicitly cautioned that failure to timely file a 17 Second Amended Complaint, or failure to correct the deficiencies 18 described above, may result in a recommendation that this action, or 19 portions thereof, be dismissed with prejudice for failure to prosecute 20 and/or failure to comply with court orders pursuant to Federal Rule of 21 Civil Procedure 41(b). 22 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 19 1 Plaintiff is further advised that if he no longer wishes to pursue 2 this action in its entirety or with respect to particular defendant or 3 claim, he may voluntarily dismiss all or any part of this action by 4 filing a Notice of Dismissal in accordance with Federal Rule of Civil 5 Procedure 41(a)(1). 6 Plaintiff’s convenience. A form Notice of Dismissal is attached for IT IS SO ORDERED. 7 8 9 10 11 DATED: May 11, 2017. /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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