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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTONIO A. CALLES,
Plaintiff,

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v.
DR. JOHANNES HAAR,
Defendant.

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Case No. EDCV 16-1382-R (AS)
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS

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I.
18
INTRODUCTION
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20
On June 27, 2016, Antonio A. Calles (“Plaintiff”), then an inmate
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at the California Men’s Colony (“CMC”) in San Luis Obispo, California,
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filed a Complaint pursuant to 42 U.S.C. § 1983, (“Compl.,” Docket Entry
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No. 1), asserting claims against (1) the California Department of
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Corrections and Rehabilitation (“CDCR”); and (2) Dr. Johannes Haar
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(“Haar”) in his individual and official capacities.

(Compl. at 1, 3

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(continuous pagination of Plaintiff’s filings used throughout this
27
Order)).
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On July 27, 2016, the Court issued an order dismissing the

1

complaint with leave to amend for failure to state a claim.

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(Docket

Entry No. 5).

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4

On August 25, 2016, Plaintiff filed a First Amended Complaint

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asserting claims against Haar in his individual capacity.

(“FAC,”

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Docket Entry No. 6).

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First Amended Complaint be served on Haar in his individual capacity.

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(Docket Entry Nos. 7, 8, 9).

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(Docket Entry No. 18).

On September 30, 2016, the Court ordered that the

On January 6, 2017, Haar filed an Answer.

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11

On January 20, 2017, Haar filed the instant Motion for Judgment on

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the Pleadings pursuant to Federal Rule of Civil Procedure 12(c).

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(“Motion,” Docket Entry No. 20).

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“Response” to the Motion. (“Response,” Docket Entry No. 27). On April

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20, 2017, Haar filed a Reply in Further Support of the Motion.

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(“Reply,” Docket Entry No. 28).

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Surreply

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(“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.

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1

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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

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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

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insofar as the Motion seeks dismissal with prejudice and without leave

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to amend.

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leave to amend.2

The First Amended Complaint is therefore dismissed with

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II.

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PLAINTIFF’S ALLEGATIONS

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10

Plaintiff suffers from bilateral foot pain, fibromas in the arches
(See FAC at 5-6).

Before the

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of both feet, and plantar fasciitis.

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events at issue in this action, Plaintiff was an inmate at Centinela

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State Prison, where he was treated by a podiatrist and orthopedic

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specialist and received orthopedic soft sole shoes and orthopedic

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insoles –

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January 2013, following Plaintiff’s transfer to CMC, Plaintiff began

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visiting Haar for medical care.

i.e., orthopedic “appliances.”

(See id.).

Starting in

(See id.).

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19

At a chronic care office visit on March 8, 2013, Plaintiff

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informed Haar that, while he was at Centinela State Prison, Plaintiff

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had been treated by a podiatrist and orthopedic specialist for his

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fibromas and plantar fasciitis.

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Haar that his orthopedic appliances were worn out and needed to be

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replaced.

(Id.).

(Id. at 6).

Plaintiff also informed

Haar said that, if Plaintiff wanted new shoes, he

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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

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“this matter was to be heard at a later date.”

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treatment notes from that visit do not describe this conversation: Haar

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noted “some tenderness on the plantar surface” but “no indication for

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[Plaintiff] to having [sic] orthopedic shoes.”3

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treatment notes state that Haar would order x-rays, but Plaintiff’s

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symptoms were “very more consistent with plantar fasciitis” and Haar

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would also give Plaintiff a “stretching exercise sheet” for that

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condition.

(Id.).

Haar’s

(Id. at 15).

The

(Id.).

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At a chronic care visit on June 7, 2013, Plaintiff requested that

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Haar examine both of the arches of Plaintiff’s feet “where the fibromas

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could be found.” (Id. at 6). Haar visually inspected Plaintiff’s feet

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but did not perform a physical examination.

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again requested to be seen by a podiatrist or orthopedic specialist to

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ensure that he would receive the “proper appliances.” (Id.). Haar did

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not refer Plaintiff to a podiatrist or orthopedic specialist but

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referred Plaintiff to a physical therapist and ordered that Plaintiff

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be treated with pain medication and foot injections. (Id.). Plaintiff

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informed Haar that his proposed treatments had not proven effective in

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the past and that Plaintiff’s foot pain had been alleviated by the use

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of orthopedic appliances.

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that Plaintiff “would refuse to administer” pain medications.

(Id.).

(See id. at 7).

Plaintiff

According to Plaintiff, Haar knew
(Id.).

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3

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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).
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Haar’s treatment notes from the visit state that “[i]t is not clear

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. . . that [diabetic insoles and diabetic shoes] are indicated” and

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that Plaintiff “has a normal appearing foot with normal x-rays, but we

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will see what Medical Administration has to say and see if perhaps an

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injection for the plantar fascia may be in order.”

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According to the treatment notes, Plaintiff was “not willing” to take

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Pamelor “when they crush and float On-Line.”4 (Id. at 17).

(Id. at 18).

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10

On June 9, 2013, a pain specialist evaluated Plaintiff and
(Id. at 8).

recommended orthopedic appliances.

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During a September 20, 2013, office visit, Plaintiff contends that

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13

Haar

informed

Plaintiff

that

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“bilateral foot issues because [Plaintiff] had already been seen by a

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pain specialist and the issue was considered died.”

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Plaintiff walked out of Haar’s office.

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notes indicate that Haar informed Plaintiff that he would discuss

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Plaintiff’s

“pain

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Plaintiff’s

other

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treatment notes, Haar ultimately agreed to discuss Plaintiff’s foot

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pain when Plaintiff became argumentative, but Plaintiff nevertheless

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left the room. (Id.). Haar’s treatment notes indicate that Haar would

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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

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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.”

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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

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Plaintiff later learned from reading Haar’s treatment notes that

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Haar had changed Plaintiff’s medication without consulting Plaintiff.

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(Id.

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medication “to cover the fact that [Haar] refused to discuss the

at

8).

According

to

Plaintiff,

Haar

changed

Plaintiff’s

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[Plaintiff’s] chief complaint [of] his bilateral foot issues.”

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Plaintiff acknowledges that Haar ordered “extra depth shoes with arch

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supports” after the office visit, but claims that these were the “wrong

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appliances” to meet Plaintiff’s needs.

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2013 office visit, Plaintiff “became aware that [Haar] was not working

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in [Plaintiff’s] best interest and from this point forward [Plaintiff]

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simply refused to be seen by [Haar]” until November 3, 2015.

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8).

(Id.).

(Id.).

After the September

(Id. at

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On October 10, 2013, Plaintiff was evaluated by a mental health

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professional to discuss his unwillingness to be treated by Haar.

(Id.

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at 9). Plaintiff told the mental health professional that he was angry

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because Haar refused to refer Plaintiff to a podiatrist and “knowingly”

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ordered the wrong appliances to treat Plaintiff’s foot pain.

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The mental health professional determined that Plaintiff did not meet

(Id.).

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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

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referred Plaintiff to mental health treatment in November 2014 and

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August 2015.

(Id.).

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5

In November 2014, January 2015, and June 2015, Haar wrote progress

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notes indicating that Plaintiff had requested medical treatment but

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refused to meet with Haar.

(See id. at 36-37, 41-42).

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On August 13, 2015, a CMC nurse submitted on Plaintiff’s behalf a
(Id. at 10; see also Compl. at

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7362 request for healthcare services.

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101).

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foot specialist “due to extreme pain, getting worse with every step.”

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(Compl. at 101).

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following three months, several other 7362 forms complaining of foot

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pain were filed and reviewed by a triage nurse, who prepared “encounter

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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.).

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By the end of October 2015, Plaintiff “could no longer tolerat[e]

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the excruciating bilateral foot pain.”

(Id. at 10).

Plaintiff asked

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to visit Haar, requesting that a correctional officer be present.

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(Id.).

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address [Plaintiff’s] bilateral foot pain.”

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if Plaintiff wanted to be “seen for his foot problems,” Plaintiff could

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submit a 7362 request form. (Id.). Plaintiff contends that “there was

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no reason” for Haar to require Plaintiff to file another 7362 form

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because several 7362 forms and “encounter forms” addressing Plaintiff’s

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foot pain had already been submitted to Haar.

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treatment notes from this visit indicate that Plaintiff’s “sign out

During a November 3, 2015 office visit, Haar “refuse[d] to

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(Id.).

Haar stated that,

(Id. at 11).

Haar’s

1

report” had requested “[f]ollowup of the Chronic Care Program” for

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diabetes, hypertension, hypothyroidism and hyperlipidemia.

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55).

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indicated that he would “only [be seen] for [his] feet,” and Haar

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stated that the visit was for an evaluation of “his other medical

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issues.”

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stated that he “would only be seen for his feet,” Haar told him to

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“submit a 7362[] to be seen for his feet,” and Plaintiff “made

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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

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12

ambulate because of the extreme foot pain.”

(Id. at 11).

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On December 3, 2015, Plaintiff was seen by a different physician,

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Dr. Mark Ward, “who immediately performed a physical examination of

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[Plaintiff’s] feet and found that both feet had fibromas on both arch

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areas of the feet and one large mass/lump on the right arch area of the

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right

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recommended and ordered a MRI, and referred [Plaintiff] to a podiatrist

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and a pain management specialist.”

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MRI that Dr. Ward had ordered was performed.

foot.”

(Id.

at

11).

“Without

question

Ward

immediately

On January 25, 2016, the

(Id.).

(Id.).

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23

On February 22, 2016, Plaintiff saw podiatrist Dr. James W.
(Id. at 11, 60-62).

Dr. Breedlove prepared a report

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Breedlove.

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recommending that Plaintiff be provided with custom molded orthopedic

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shoes with orthopedic insoles.

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10, 2016, Dr. Breedlove noted that Plaintiff still had not received the

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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).

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4

Plaintiff

alleges

that

Haar’s

conduct

violated

the

Eighth

5

Amendment and California law.

(Id.).

Plaintiff seeks money damages.

6

(Id. at 13).

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8

III.

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STANDARD OF REVIEW

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Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”) provides

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that, “[a]fter the pleadings are closed — but early enough not to delay

13

trial — a party may move for judgment on the pleadings.”

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P. 12(c). “Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and

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. . . ‘the same standard of review’ applies to motions brought under

16

either rule.” See United States ex rel. Cafasso v. Gen. Dynamics C4

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Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting Dworkin v.

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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).

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22

Dismissal for failure to state a claim is appropriate if Plaintiff

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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).

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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

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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

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v. McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122,

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1125 (9th Cir. 2005).

17

true mere legal conclusions.

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recitals of elements of a cause of action, supported by mere conclusory

19

statements, do not suffice.” (citing Twombly, 550 U.S. at 555)).

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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,

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13

IV.

14

DISCUSSION

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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.

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to amend.

The First Amended Complaint is therefore dismissed with leave

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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

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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

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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

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Plaintiff’s visit and would address Plaintiff’s foot pain on another

23

date provided that Plaintiff filed a specific written request to

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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.

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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).

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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.

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9
10
11

DATED: May 11, 2017.
/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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