Francisco Xavier Carbajal v. Food Services et al

Filing 13

(IN CHAMBERS): 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 30, 2020, why this action should not be dismissed with prejudice for failure to prosecute. (see document for further details) (Attachments: # 1 Copy of the Court's August 25, 2020 Order, (Dkt No. 11), # 2 Blank Notice of Dismissal Form) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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FRANCISCO XAVIER CARBAJAL,
JR.,

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Plaintiff,
v.

Case No. EDCV 20-1029-PA (AS)

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

FOOD SERVICES, et al.,

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Defendants.

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INTRODUCTION

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On May 14, 2020, Francisco Xavier Carbajal, Jr. (“Plaintiff”),
a California state prisoner at the California Institute for Men
(“CIM”) in Chino, California, proceeding pro se, filed a Civil
Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983.
No. 1).

(Dkt.

On June 30, 2020, the Court screened the Complaint as

prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e, and dismissed
it, with leave to amend, because it failed to state a claim for
relief.

(Dkt. No. 8).

On July 23, 2020, Plaintiff filed a First

Amended Complaint, along with numerous exhibits.

(Dkt. Nos. 9, 9-

1

1, 9-2, 9-3, 9-4, 9-5). 1

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Court DISMISSES Plaintiff’s First Amended Complaint WITH LEAVE TO

3

AMEND. 2

For the reasons discussed below, the

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PLAINTIFF’S COMPLAINT

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7

Plaintiff

claims

that

the

following

thirteen

Defendants,

8

associated

9

Rehabilitation (“CDCR”), and sued in their individual and official

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capacities, violated Plaintiff’s Eighth Amendment rights: (1) Food

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Services; 3 (2) B. LeMaster, Americans with Disabilities Act (“ADA”)

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Coordinator

13

member; (3) A. Banvelos, Acting ADA Coordinator and RAP staff

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member; (4) J. Gandara, Health Care Appeals Coordinator and RAP

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staff member; (5) T. Nesbitt, Health Care Compliance Analyst and

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RAP staff member; (6) J. Rivera, Appeals Coordinator and RAP staff

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member; (7) B. Strobett, Correctional Counselor II and RAP staff

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member; (8) Kirk Torres, Chief Physician and Surgeon and RAP staff

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member;

with

(9)

and

the

California

Reasonable

Tara

Simpson,

Department

Accommodation

Correctional

of

Panel

Health

Corrections

(“RAP”)

Care

and

staff

Services

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1

Citations to the First Amended Complaint refer to the page
numbers assigned by the Court’s electronic case filing system
(CM/ECF).
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

It is unclear at this time whether “Food Services” is a
separate entity subject to suit under Section 1983. This need not
be addressed presently, however, because the First Amended
Complaint fails to state any claim against Defendants, for the
reasons discussed below.
2

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Administrator II; (10) J.L. Bishop, Associate Warden, Business

2

Services; (11) M. Farooq, Chief Medical Executive; (12) S. Gates,

3

Chief Health Care Correspondence and Appeals Branch; and (13) T.

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Le, Chief Physician and Surgeon.

(Dkt. No. 9 at 3-7).

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6

Plaintiff claims that Defendants violated the Eighth Amendment

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through deliberate indifference in “denying, delaying, or ignoring

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Plaintiff’s duly prescribed Lactose-Free Diet,” which Plaintiff

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allegedly needs because he suffers from ulcerative colitis, a

10

gastrointestinal inflammatory bowel disease.

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seeks monetary and injunctive relief.

(Id. at 8-9).

He

(Dkt. No. 9-1 at 11).

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13

Plaintiff alleges that he was prescribed a gluten-free diet

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for his ulcerative colitis in 2015, but his sympoms worsened by

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2018, causing him to experience about twenty bowel movements a day,

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with “liquidy” and bloody stool, as well as chronic pain.

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No. 9 at 9).

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Request

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because he had lost over twenty-five pounds in the previous four

20

months.

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unanswered, Plaintiff submitted a grievance on February 21, 2019,

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providing general information about the symptoms and dietary needs

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of his ulcerative colitis condition, and asserting that he was not

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being provided the recommended gluten-free or low-fiber diets.

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(Dkt. No. 9 at 9-11; see Dkt. No. 9-2 at 1-2).

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Plaintiff, Defendant Dr. T. Le responded to the grievance on April

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2, 2019, but “failed to intervene.”

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instead noted that Plaintiff was in the “Chronic Care Program” for

on

(Dkt.

Plaintiff alleges that he submitted a Health Care

January

8,

2019,

seeking

a

(Id.; see Dkt. No. 9-1 at 19).

3

dietitian

consultation

When the request went

According to

(Dkt. No. 9 at 11).

Dr. Le

1

his condition, and appropriate diets were provided “as medically

2

or clinically indicated.”

(Id. at 11; see Dkt. No. 9-2 at 3-4). 4

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Plaintiff alleges that he submitted an appeal on April 7,

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2019, contending that the food being provided did not adequately

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accommodate his dietary needs, particularly his instructions to

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avoid high amounts of fiber and purines.

8

see Dkt. No. 9-2 at 5).

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foods “place[d] an unnecessary burden” on him and his family “to

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supplement [his] intake through Canteen and packages,” and still

(Dkt. No. 9 at 11-12;

Plaintiff asserted that avoiding such

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Dr. Le’s response also reports that Plaintiff saw a
gastroenterologist “via Telemedicine” on January 24, 2019, and saw
his primary care physician on February 25. (Dkt. No. 9-2 at 3).
According to Dr. Le, Plaintiff had been “instructed to eat a low
fiber diet,” and a gluten-free diet was “not indicated” at the
time. (Id.). Dr. Le also recited the following general policy
information:
California Correctional Health Care Services shall
provide patients with meals based on a standardized
master menu consistent with a [CDCR] Heart Healthy diet
(a diet plan restricted in sodium and fat while supplying
adequate calories, fiber and all essential nutrients,
supported by [CDCR] and approved by a Registered
Dietitian). The CDCR Heart Healthy diet purposely
contains an average of 300-400 calories per day more
than required for the average person. This caloric
buffer allows patients to choose not to eat certain
foods, either due to food sensitivity or general
dislike, without compromising nutritional health. Diet
instruction,
outpatient
therapeutic
diets,
nourishments, and supplements shall be provided as
medically or clinically indicated. Information regarding
outpatient dietary intervention can be found in the
Inmate Medical Services Policies and Procedures, Volume
4, Chapter 20.2, Outpatient Dietary Intervention
Procedure.

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(Id. at 4).
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caused him to lose almost forty pounds since September 10, 2018.

2

(Id.).

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On April 12, 2019, Plaintiff received a consultation with a

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physician, Dr. Viernes, and relayed his “continuing, distressing

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problem of having explosive gas with various types of discharge,

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and significant weight loss.”

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“included the ‘Lactose-Free diet’ and ‘moist wipes’ in Plaintiff’s

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treatment

plan,”

and

noted

(Dkt. No. 9 at 9).

that

Plaintiff’s

Dr. Viernes

symptoms

“may

be

10

representative of suboptimally treated left-sided colitis.”

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at 9-10; see Dkt. No. 9-2 at 9-10).

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primary care provider, Dr. Kerk, ordered the lactose-free diet for

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Plaintiff, apparently based on Dr. Viernes’s assessment.

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No. 9 at 13; see Dkt. No. 9-2 at 12-13).

(Id.

On April 22, 2019, Plaintiff’s

(Dkt.

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Plaintiff

alleges

that

he

subsequently

inquired,

several

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times, whether the prescribed lactose-free diet would be provided

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to him, but Defendant Food Services kept responding that it was

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not yet available and sometimes takes a while.

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14; see Dkt. No. 9-2 at 15).

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2019, Nurse Onoigboria made a phone call regarding Plaintiff’s diet

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request, and relayed to Plaintiff that Food Services does not offer

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a lactose-free diet.

(Dkt. No. 9 at 13-

Plaintiff alleges that on May 24,

(Dkt. No. 9 at 14).

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On

May

24,

2019,

Plaintiff

submitted

a

“Reasonable

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Accommodation Request,” stating that he was unable to “enjoy the

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major life activity of eating” because his doctors’ orders were

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not being followed to treat his ulcerative colitis.
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(Dkt. No. 9

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at 15; see Dkt. No. 9-2 at 17).

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Reasonable

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Nesbitt, Rivera, Strobett, and Torres; the “RAP Defendants”) issued

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a response denying intervention and stating that “CDCR does not

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offer

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“encouraged to avoid lactose products.” (Dkt. No. 9 at 15-16; see

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Dkt. No. 9-2 at 18).

a

Accommodation

lactose

free

On May 30, the Defendants in the

Panel

diet,”

(LeMaster,

while

noting

Banvelos,

that

Gandara,

Plaintiff

was

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Plaintiff alleges that on June 10, 2019, Defendant Gates

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responded to one of Plaintiff’s appeals (from April 7) denying

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relief and falsely stating that Plaintiff’s primary care physician

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had “not document[ed] a current recommendation for outpatient

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therapeutic diet related to ulcerative colitis management.”

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No. 9 at 16; see Dkt. No. 9-2 at 6-7).

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Gandara rejected one of Plaintiff’s grievances as duplicative,

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asserting that “[a] lactose free diet is not a Health Care Services

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issue.”

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August 5, 2019, contending that Dr. Viernes and Dr. Kerk had

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prescribed a lactose-free diet, which Food Services had failed to

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provide.

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Defendant Rivera denied relief on September 12, 2019, noting that

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the appeal had already been rejected by health care staff “because

(Dkt. No. 9 at 18). 5

(Dkt.

On July 26, 2019, Defendant

Plaintiff appealed this decision on

(Dkt. No. 9 at 19-20; see Dkt. No. 9-3 at 13, 15).

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In the attached document, Gandara specifically stated: “A
lactose free diet is not a health care services issue over which
[CDCR]
Health
Care
Services
has
jurisdiction.
As
such,
[Plaintiff’s] concerns should be addressed through the appropriate
custody channels at [Plaintiff’s] institution.” (Dkt. No. 9-3 at
2).
6

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it is a CUSTODY issue and NOT a health care issue.”

2

at 20; see Dkt. No. 18).

(Dkt. No. 9

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Plaintiff alleges that he met with a registered dietitian on

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September 20, 2019, who “apologized for the ‘gap in [Plaintiff’s]

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medical care,’” and remarked that it was “crazy” that Plaintiff

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had been at CIM for “so long with [his] medical needs, and had not

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seen the dietitian sooner.”

(Dkt. No. 9 at 20).

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On September 25, 2019, Defendants Simpson and Bishop responded

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to an appeal by denying relief and stating that, though Plaintiff’s

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doctor had prescribed a lactose-free diet, lactose-free meals were

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unavailable. (Dkt. No. 9-1 at 1; see Dkt. No. 9-3 at 1-2). Simpson

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and Bishop explained that an alternative meal plan was available

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in place of lactose-free meals, and that Plaintiff was assisted

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“in making smarter item selections within the meal plan.” 6

(Id.).

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6

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In the attached document, Simpson and Bishop stated that on
September 20, Plaintiff and the registered dietitian “established
an alternate diet meal plan in place of the requested lactose free
meal.” (Dkt. No. 9-3 at 20). Simpson and Bishop explained that
the alternate meal was the “Pre-Renal Diet,” which “is the most
compatible meal selection” available. (Id.). Simpson and Bishop
also stated that the registered dietitian had discussed this diet
with Plaintiff “in detail to assist [Plaintiff] in making smarter
item selections within the meal plan.” (Id. at 19). According
to Simpson and Bishop, the “Pre-Renal Diet,” had been “approved
and implemented as of September 23, 2019.” (Id.).
Plaintiff’s September 2019 appointment with the registered
dietician was summarized in greater detail in a later appeal
response from Dr. Farooq, who wrote:

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The dietician proposed to change to a pre-renal diet to
limit dairy foods. Soy milk will be provided once daily
with breakfast in the place of dairy milk. You were

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7

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Plaintiff appealed, and Defendant Rivera rejected the appeal on

2

procedural grounds on October 24, 2019.

3

Dkt. No. 9-3 at 14, 16; Dkt. No. 9-4 at 1).

(Dkt. No. 9-1 at 2-3; see

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5

Plaintiff alleges that on November 18, 2019, Defendant Farooq

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continued to deny Plaintiff his “duly prescribed Lactose-Free Diet”

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and “plac[ed] the burden on Plaintiff ‘to shop at Canteen for

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protein substitutes (plain chicken, ham, etc.) when menu entrée

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items contain dairy,’ rather than adequately supply[ing] food.” 7

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(Dkt. No. 9-1 at 3-4; see Dkt. No. 9-4 at 8-9).

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appealed, Defendant Gates denied relief on February 3, 2020.

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No. 9-1 at 4-6, 7; see Dkt. No. 9-4 at 6-7, 11-12).

When Plaintiff
(Dkt.

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educated to shop at canteen for protein substitutes
(plain chicken, ham, etc.) when menu entree items
contain dairy. Avoid fiber (or other irritating foods)
during flare-ups only. You were encouraged to avoid
lactose.
You
were
given
handouts
on
“Lactose
Intolerance” and California Correctional Health Care
Services (CCHCS) menus.
(Dkt. No. 9-4 at 9).
7

In the attached document, Dr. Farooq states that the
registered dietitian in September 2019 had, among other things,
“educated [Plaintiff] to shop at canteen for protein substitutes
(plain chicken, ham, etc.) when menu entrée items contain dairy.”
(Dkt. No. 9-4 at 9). Dr. Farooq also noted that when Plaintiff
received a follow-up evaluation from the registered dietitian on
October 1, 2019, Plaintiff “reported satisfaction with the change
to renal diet and soy milk substitution” and “stated it seemed to
be working,” resulting in fewer bowel movements and increased
appetite.
(Id.).
According to Dr. Farooq, Plaintiff’s primary
care physician also placed an order for a lactase enzyme
replacement on October 2, at the dietitian’s recommendation.
(Id.).
8

1

On

December

3,

2019,

Plaintiff

submitted

a

grievance

2

complaining that Dr. Riaz had denied his request for a sedative.

3

(Dkt. No. 9-1 at 6; see Dkt. No. 9-4 at 17).

4

that he needed a sedative because his ulcerative colitis and

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arthritic gout were causing pain and physical distress that made

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it difficult for him to relax.

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Dr. Riaz had “implicitly agreed” that Plaintiff needed a sedative,

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but the policy did not permit it.

9

relief on February 14, 2020, determining that a sedative was “not

10

medically indicated.” 8

11

(Id.).

(Id.).

Plaintiff contended

According to Plaintiff,

Defendant Farooq denied

18-19).

(Dkt. No. 9-1 at 7-8; see Dkt. No. 9-4 at

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13

Plaintiff additionally alleges that he submitted numerous

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requests and appeals regarding his inadequate fecal-incontinence

15

supplies, such as wipes and diapers, which he allegedly needed

16

urgently because his frequent and uncontrollable bowel movements

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often caused him to soil his clothing and bedding. 9

(See Dkt. Nos.

18
19
20
21
22
23

8

Dr. Farooq also explained, among other things, that Plaintiff
was being given 650 mg Tylenol three times a day, and he had an
MRI exam on February 7, 2020, due to his pain symptoms, the results
of which were pending. (Dkt. No. 9-4 at 18-19).
9

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25
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Among these allegations, Plaintiff alleges that Gates
“ignored the ‘medical indication warranting wipes.’” (Dkt. No. 91 at 1). In the attached document, however, Gates wrote that there
was “no recent documentation” that Plaintiff had “utiliz[ed] the
approved processes for concerns related to wet wipes,” but
Plaintiff was “encouraged to discuss [his] concerns regarding wet
wipes” with his primary care provider in his next appointment.
(Dkt. No. 9-5 at 15-16).
9

1

9 at 12-15, 18-19; Dkt. No. 9-1 at 1-2, 8-10; Dkt. No. 9-5 at 8-

2

14, 17-22).

3
4

STANDARD OF REVIEW

5
6

Congress mandates that district courts initially screen civil

7

complaints filed by prisoners seeking redress from a governmental

8

entity or employee.

9

a complaint, or any portion thereof, if the court concludes that

10

the complaint: (1) is frivolous or malicious, (2) fails to state a

11

claim upon which relief may be granted, or (3) seeks monetary

12

relief from a defendant who is immune from such relief.

13

§ 1915A(b); see also id. § 1915(e)(2) (The court “shall dismiss

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the case at any time if the court determines that . . . the

15

action . . . (i) is frivolous or malicious; (ii) fails to state a

16

claim on which relief may be granted; or (iii) seeks monetary

17

relief against a defendant who is immune from such relief.”);

18

accord Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000)

19

(en banc). In addition, dismissal may be appropriate if a complaint

20

violates Rule 8 of the Federal Rules of Civil Procedure. McHenry

21

v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. Northcoast

22

Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

28 U.S.C. § 1915A.

A court may dismiss such

Id.

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24

In considering whether to dismiss a complaint, a court is

25

generally limited to the pleadings and must construe “[a]ll factual

26

allegations set forth in the complaint . . . as true and . . . in

27

the light most favorable” to the plaintiff.

28

Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted).
10

Lee v. City of Los

1

Moreover, pro se pleadings are “to be liberally construed” and

2

“held to less stringent standards” than those drafted by a lawyer.

3

Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted).

4

Nevertheless,

5

warranted based on either the lack of a cognizable legal theory or

6

the absence of factual support for a cognizable legal theory.

7

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

8

Cir. 2008).

dismissal

for

failure

to

state

a

claim

can

be

9
10

DISCUSSION

11
12

Plaintiff’s

First

Amended

Complaint

warrants

dismissal

13

because it violates Rule 8 of Federal Rules of Civil Procedure and

14

fails to state a claim for relief.

15

however, because it is not “absolutely clear that the deficiencies

16

of the complaint could not be cured by amendment.”

17

698 F.3d 1202, 1212 (9th Cir. 2012).

Leave to amend is granted,

Akhtar v. Mesa,

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19
20

A.

The First Amended Complaint Violates Federal Rule of Civil
Procedure 8

21
22

Rule

8

governs

how

to

plead

claims

in

a

complaint.

23

Specifically, Rule 8(a)(2) requires that a complaint contain “‘a

24

short and plain statement of the claim showing that the pleader is

25

entitled to relief,’ in order to ‘give the defendant fair notice

26

of what the . . . claim is and the grounds upon which it rests.’”

27

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

28

Fed. R. Civ. P. 8(a)).

To comply with Rule 8, moreover, each
11

1

allegation of a complaint must be “simple, concise, and direct,”

2

Fed.

3

insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009).

4

A complaint is subject to dismissal for violating Rule 8 if “one

5

cannot determine from the complaint who is being sued, for what

6

relief, and on what theory.”

7

(9th Cir. 1996).

R.

Civ.

P.

8(d)(1),

though

conclusory

allegations

are

McHenry v. Renne, 84 F.3d 1172, 1178

8
9

Plaintiff’s First Amended Complaint violates Rule 8 because

10

it fails to provide each Defendant with fair notice of what that

11

Defendant allegedly did to violate Plaintiff’s rights.

12

instead lumps all his claims and allegations against thirteen

13

different Defendants in a single “claim,” which includes over

14

twenty handwritten pages of allegations that reference a variety

15

of

16

Defendants.

17

discern the claims and allegations at issue, and to effectively

18

respond.

19

initially claims that Defendants violated the Eighth Amendment by

20

denying a lactose-free diet, but he then provides many allegations

21

relating to requests for other items, such as wipes or sedatives.

prison

officials

and

medical

staff

along

with

Plaintiff

the

named

This makes it difficult for each Defendant to clearly

Plaintiff

further

confuses

the

matter

because

he

22
23

Because the First Amended Complaint deprives the individual

24

Defendants of fair notice of the specific claims being asserted

25

against them, and the grounds upon which the claims rest, it

26

warrants dismissal, with leave to amend, for violation of Rule 8.

27
28
12

1
2

B.

The First Amended Complaint Fails to State an Eighth Amendment
Claim

3
4

The First Amended Complaint asserts that Defendants violated

5

Plaintiff’s

rights

6

Amendment’s

prohibition

7

protects prisoners from inhumane conditions of confinement. Morgan

8

v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer

9

v. Brennan, 511 U.S. 825, 832 (1994)).

under

the

Eighth

against

Amendment.

cruel

and

The

unusual

Eighth

punishment

Prison officials therefore

10

have a “duty to ensure that prisoners are provided with adequate

11

shelter, food, clothing, sanitation, medical care, and personal

12

safety.”

13

establish a violation of this duty, a prisoner must satisfy both

14

an objective and subjective component.

15

U.S. 294, 298 (1991).

Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000).

To

See Wilson v. Seiter, 501

16
17

First, a prisoner must demonstrate an objectively serious

18

deprivation,

19

civilized measures of life’s necessities.’”

20

F.3d 1083, 1089 (9th Cir. 1996) (quoting Rhodes v. Chapman, 452

21

U.S. 337, 346 (1981)).

22

component of the deliberate indifference standard by demonstrating

23

that a failure to treat the plaintiff’s condition could result in

24

further significant injury or the unnecessary and wanton infliction

25

of pain.

26

(citation omitted).

27

serious medical need, so as to implicate the Eighth Amendment,

28

include “[t]he existence of an injury that a reasonable doctor or

one

that

amounts

to

“a

denial

of

‘the

minimal

Keenan v. Hall, 83

A plaintiff can satisfy the objective

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014)
Indications that a prisoner has a sufficiently

13

1

patient would find important and worthy of comment or treatment;

2

the presence of a medical condition that significantly affects an

3

individual’s daily activities; or the existence of chronic and

4

substantial pain.”

5

Cir. 1992), overruled in part on other grounds by WMX Techs., Inc.

6

v. Miller, 104 F.3d 1133 (9th Cir. 1997); accord Wilhelm v. Rotman,

7

680 F.3d 1113, 1122 (9th Cir. 2012); Lopez, 203 F.3d at 1131.

McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th

8
9

Second, a prisoner must also demonstrate that prison officials

10

acted

11

“deliberate indifference.”

12

F.3d at 733.

13

the deliberate indifference standard by showing that a prison

14

official “knows of and disregards an excessive risk to inmate

15

health and safety.”

16

Cir. 2004).

17

which the inference could be drawn that a substantial risk of

18

serious harm exists, and he must also draw the inference.”

19

511 U.S. at 837.

20

need was deliberately indifferent — is satisfied by showing (a) a

21

purposeful act or failure to respond to a prisoner’s pain or

22

possible medical need and (b) harm caused by the indifference.

23

Jett

24

official’s failure to alleviate a significant risk that he should

25

have perceived but did not, while no cause for commendation, cannot

26

. . . be condemned as the infliction of punishment.”

27

U.S. at 838.

with

v.

a

sufficiently

culpable

state

of

mind,

that

of

Wilson, 501 U.S. at 303; Johnson, 217

A plaintiff can satisfy the subjective component of

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

A prison official must “both be aware of facts from

Penner,

Farmer,

“This second prong — defendant’s response to the

439

F.3d

1091,

28
14

1096

(9th

Cir.

2006).

“[A]n

Farmer, 511

1

Where a prison doctor has chosen one course of action and a

2

plaintiff contends that the doctor should have chosen another

3

course of action, the plaintiff “must show that the course of

4

treatment the doctor[] chose was medically unacceptable under the

5

circumstances, . . . and the plaintiff must show that [the doctor]

6

chose this course in conscious disregard of an excessive risk to

7

plaintiff’s health.”

8

Cir. 1996) (internal citations omitted); see also Snow v. McDaniel,

9

681 F.3d 978, 987 (9th Cir. 2012) (“[a] difference of opinion

Jackson v. McIntosh, 90 F.3d 330, 332 (9th

10

between

11

professionals – concerning what medical care is appropriate does

12

not amount to deliberate indifference” unless the chosen care was

13

“medically unacceptable under the circumstances”) (citation and

14

internal quotations omitted), overruled on other grounds, Peralta

15

v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc); see also Hamby

16

v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (same). An inmate’s

17

disagreement with the nature of his treatment does not suffice to

18

state a claim for deliberate indifference.

19

of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981)

20

(“A difference of opinion between a prisoner-patient and prison

21

medical authorities regarding treatment does not give rise to a §

22

1983 claim.”) (citation omitted).

a

physician

and

the

prisoner

–

or

between

medical

See Franklin v. State

23
24

Here, assuming that Plaintiff’s ulcerative colitis condition

25

itself constitutes a serious medical condition, Plaintiff fails to

26

allege sufficient facts showing that Defendants failed to provide

27

constitutionally adequate treatment or otherwise caused him serious

28

harm.

To

the

contrary,

Plaintiff’s
15

allegations

and

attached

1

exhibits (from his administrative grievances and appeals) suggest

2

that he received fairly regular consultations with medical doctors,

3

who gave him dietary instructions that involved avoiding certain

4

foods

5

Plaintiff contends that Defendants failed to provide him with meals

6

that catered exclusively to these dietary needs – such as by

7

providing specifically “lactose-free meals” – Plaintiff does not

8

allege sufficient facts showing that he was actually unable to

9

obtain enough foods to fulfill the dietary recommendations, and he

10

does not allege that the medical recommendations themselves were

11

constitutionally deficient.

that

seemed

to

contribute

to

his

symptoms.

Although

12
13

For

example,

Plaintiff

alleges

that

after

his

condition

14

started worsening in 2018, he submitted a request for a dietary

15

consultation on January 8, 2019.

16

Plaintiff asserts that Defendants then failed to grant him the

17

consultation or to provide him the recommended gluten-free or low-

18

fiber diets (Dkt. No. 9 at 9-12), his attached exhibits indicate,

19

among other things, that Plaintiff saw a gastroenterologist on

20

January 24 and his primary care physician on February 25, and was

21

instructed to eat a low-fiber diet. (Dkt. No. 9-2 at 3). Plaintiff

22

contends that avoiding high-fiber foods (as well as high purine

23

food due to gout) “place[d] an unnecessary burden” on him and his

24

family “to supplement [his] intake through Canteen and packages.”

25

(Dkt. No. 9 at 11-12).

26

this “burden,” and he does not clearly indicate that he was unable

27

to obtain adequate low-fiber foods by such means.

28

the extent that a low-fiber diet did not relieve his symptoms,

(Dkt. No. 9 at 9).

Although

However, he does not clarify the nature of

16

In addition, to

1

Plaintiff

2

recommendation

3

conscious disregard of an excessive risk to [P]laintiff’s health.”

4

Jackson, 90 F.3d at 332.

does

not
was

allege

facts

“medically

showing

that

unacceptable”

and

this
was

medical
done

“in

5
6

Plaintiff alleges that in April 2019, his doctors prescribed

7

a lactose-free diet, and Defendants failed to ever provide him with

8

specifically “lactose-free meals.”

9

However,

while

10

Plaintiff

to

11

chicken, ham, etc.) when menu entrée items contain dairy” (Dkt.

12

No. 9-1 at 3-4) (internal quotation omitted), he does not indicate

13

how it “burden[ed]” him, and he does not allege facts showing that

14

he was actually unable to obtain enough non-dairy foods.

15

according

16

Plaintiff was provided with an alternative meal plan in the form

17

of the “Pre-Renal Diet,” with soy milk substitution, along with

18

instruction from a dietitian about how to avoid dairy foods and

19

obtain adequate protein substitutes from the canteen when needed.

20

(See Dkt. No. 9-3 at 19; Dkt. No. 9-4 at 9).

21

complains that this placed the “burden” on him, he does not

22

contradict the report, in an attached document, stating that in an

23

October

24

Plaintiff “reported satisfaction with the change to renal diet and

25

soy milk substitution” and “stated it seemed to be working,”

26

resulting in fewer bowel movements and increased appetite.

27

No. 9-4 at 9).

to

1,

Plaintiff

shop

at

attached

2019

claims

Canteen

this

for

documents,

follow-up

(See Dkt. No. 9 at 9-15).

at

“plac[ed]

protein

least

consultation

the

burden

substitutes

by

on

(plain

Moreover,

September

2019,

Although Plaintiff

with

the

dietitian,

(Dkt.

Plaintiff was also apparently provided with a

28
17

1

lactase

2

dietitian’s recommendation.

enzyme

replacement,

in

October

2019,

based

on

the

(Id.).

3
4

Even

if

Plaintiff

may

have

continued

to

suffer

serious

5

symptoms, Plaintiff fails to demonstrate that this was caused by

6

Defendants’ own conduct (or inaction), and that such conduct was

7

carried

8

Moreover,

9

seriousness of Plaintiff’s symptoms, Plaintiff fails to show that

10

each Defendant had the ability to alleviate those symptoms and

11

failed to do so.

12

against Defendants.

13

Cir. 1988) (allegations regarding Section 1983 causation “must be

14

individualized and focus on the duties and responsibilities of each

15

individual defendant whose acts or omissions are alleged to have

16

caused a constitutional deprivation”).

out

knowing

even

if

the

serious

Plaintiff

risk

alleges

of

that

harm

to

Plaintiff.

Defendants

knew

the

Such allegations are required to state a claim
See Leer v. Murphy, 844 F.2d 628, 633 (9th

17
18

Because

Plaintiff

fails

to

provide

such

allegations

19

demonstrating that Defendants violated his rights under the Eighth

20

Amendment, the First Amended Complaint warrants dismissal, with

21

leave to amend, for failure to state a claim for relief.

22
23

CONCLUSION

24
25
26

For

the

reasons

discussed

above,

Plaintiff’s claims WITH LEAVE TO AMEND.

27
28
18

the

Court

DISMISSES

1

If Plaintiff still wishes to pursue this action, he shall file

2

a Second Amended Complaint no later than 30 days from the date of

3

this Order.

4

defects discussed above and shall be complete in itself without

5

reference to prior pleadings.

6

pleading filed as a matter of right or allowed by order of the

7

Court shall be complete including exhibits.

8

shall not refer to the prior, superseding pleading.”).

9

that Plaintiff must allege and plead any viable claims in the

10

The Second Amended Complaint must cure the pleading

See L.R. 15-2 (“Every amended

The amended pleading
This means

again.

11
12

In any amended complaint, Plaintiff should identify the nature

13

of each separate legal claim and confine his allegations to those

14

operative facts supporting each of his claims.

15

legal claim, Plaintiff should state the civil right that has been

16

violated and the supporting facts for that claim only.

17

to Federal Rule of Civil Procedure 8(a), all that is required is a

18

“short and plain statement of the claim showing that the pleader

19

is entitled to relief.”

20

allegations in the Second Amended Complaint should be consistent

21

with the authorities discussed above.

22

Amended Complaint may not include new defendants or claims not

23

reasonably related to the allegations in the previously filed

24

complaint.

25

standard

26

complaint, a copy of which is attached.

Plaintiff

civil

rights

For each separate

Pursuant

However, Plaintiff is advised that the

is

strongly

complaint

27
28
19

In addition, the Second

encouraged

form

when

to

filing

utilize
any

the

amended

1

Plaintiff is explicitly cautioned that failure to timely file

2

a Second Amended Complaint, or failure to correct the deficiencies

3

described above, may result in a recommendation that this action,

4

or portions thereof, be dismissed with prejudice for failure to

5

prosecute and/or failure to comply with court orders.

6

Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d

7

884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually

8

to respond to the court’s ultimatum - either by amending the

9

complaint or by indicating to the court that it will not do so -

10

is properly met with the sanction of a Rule 41(b) dismissal.”

11

(emphasis omitted; quoting Edwards v. Marin Park, Inc., 356 F.3d

12

1058, 1065 (9th Cir. 2004))).

13

if he no longer wishes to pursue this action in its entirety or

14

with respect to particular defendants or claims, he may voluntarily

15

dismiss all or any part of this action by filing a Notice of

16

Dismissal

in

17

41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

18

convenience.

accordance

with

See Fed. R.

Plaintiff is further advised that

Federal

Rule

of

Civil

Procedure

19
20

IT IS SO ORDERED.

21
22

Dated:

August 25, 2020.
______________/s/_____________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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24
25
26
27
28
20