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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 9 10 FRANCISCO XAVIER CARBAJAL, JR., 11 12 13 Plaintiff, v. Case No. EDCV 20-1029-PA (AS) ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND FOOD SERVICES, et al., 14 Defendants. 15 16 INTRODUCTION 17 18 19 20 21 22 23 24 25 26 27 28 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 2 Court DISMISSES Plaintiff’s First Amended Complaint WITH LEAVE TO 3 AMEND. 2 For the reasons discussed below, the 4 5 PLAINTIFF’S COMPLAINT 6 7 Plaintiff claims that the following thirteen Defendants, 8 associated 9 Rehabilitation (“CDCR”), and sued in their individual and official 10 capacities, violated Plaintiff’s Eighth Amendment rights: (1) Food 11 Services; 3 (2) B. LeMaster, Americans with Disabilities Act (“ADA”) 12 Coordinator 13 member; (3) A. Banvelos, Acting ADA Coordinator and RAP staff 14 member; (4) J. Gandara, Health Care Appeals Coordinator and RAP 15 staff member; (5) T. Nesbitt, Health Care Compliance Analyst and 16 RAP staff member; (6) J. Rivera, Appeals Coordinator and RAP staff 17 member; (7) B. Strobett, Correctional Counselor II and RAP staff 18 member; (8) Kirk Torres, Chief Physician and Surgeon and RAP staff 19 member; with (9) and the California Reasonable Tara Simpson, Department Accommodation Correctional of Panel Health Corrections (“RAP”) Care and staff Services 20 21 22 23 24 25 26 27 28 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 1 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. 4 Le, Chief Physician and Surgeon. (Dkt. No. 9 at 3-7). 5 6 Plaintiff claims that Defendants violated the Eighth Amendment 7 through deliberate indifference in “denying, delaying, or ignoring 8 Plaintiff’s duly prescribed Lactose-Free Diet,” which Plaintiff 9 allegedly needs because he suffers from ulcerative colitis, a 10 gastrointestinal inflammatory bowel disease. 11 seeks monetary and injunctive relief. (Id. at 8-9). He (Dkt. No. 9-1 at 11). 12 13 Plaintiff alleges that he was prescribed a gluten-free diet 14 for his ulcerative colitis in 2015, but his sympoms worsened by 15 2018, causing him to experience about twenty bowel movements a day, 16 with “liquidy” and bloody stool, as well as chronic pain. 17 No. 9 at 9). 18 Request 19 because he had lost over twenty-five pounds in the previous four 20 months. 21 unanswered, Plaintiff submitted a grievance on February 21, 2019, 22 providing general information about the symptoms and dietary needs 23 of his ulcerative colitis condition, and asserting that he was not 24 being provided the recommended gluten-free or low-fiber diets. 25 (Dkt. No. 9 at 9-11; see Dkt. No. 9-2 at 1-2). 26 Plaintiff, Defendant Dr. T. Le responded to the grievance on April 27 2, 2019, but “failed to intervene.” 28 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 3 4 Plaintiff alleges that he submitted an appeal on April 7, 5 2019, contending that the food being provided did not adequately 6 accommodate his dietary needs, particularly his instructions to 7 avoid high amounts of fiber and purines. 8 see Dkt. No. 9-2 at 5). 9 foods “place[d] an unnecessary burden” on him and his family “to 10 supplement [his] intake through Canteen and packages,” and still (Dkt. No. 9 at 11-12; Plaintiff asserted that avoiding such 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 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. 27 28 (Id. at 4). 4 1 caused him to lose almost forty pounds since September 10, 2018. 2 (Id.). 3 4 On April 12, 2019, Plaintiff received a consultation with a 5 physician, Dr. Viernes, and relayed his “continuing, distressing 6 problem of having explosive gas with various types of discharge, 7 and significant weight loss.” 8 “included the ‘Lactose-Free diet’ and ‘moist wipes’ in Plaintiff’s 9 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.” 11 at 9-10; see Dkt. No. 9-2 at 9-10). 12 primary care provider, Dr. Kerk, ordered the lactose-free diet for 13 Plaintiff, apparently based on Dr. Viernes’s assessment. 14 No. 9 at 13; see Dkt. No. 9-2 at 12-13). (Id. On April 22, 2019, Plaintiff’s (Dkt. 15 16 Plaintiff alleges that he subsequently inquired, several 17 times, whether the prescribed lactose-free diet would be provided 18 to him, but Defendant Food Services kept responding that it was 19 not yet available and sometimes takes a while. 20 14; see Dkt. No. 9-2 at 15). 21 2019, Nurse Onoigboria made a phone call regarding Plaintiff’s diet 22 request, and relayed to Plaintiff that Food Services does not offer 23 a lactose-free diet. (Dkt. No. 9 at 13- Plaintiff alleges that on May 24, (Dkt. No. 9 at 14). 24 25 On May 24, 2019, Plaintiff submitted a “Reasonable 26 Accommodation Request,” stating that he was unable to “enjoy the 27 major life activity of eating” because his doctors’ orders were 28 not being followed to treat his ulcerative colitis. 5 (Dkt. No. 9 1 at 15; see Dkt. No. 9-2 at 17). 2 Reasonable 3 Nesbitt, Rivera, Strobett, and Torres; the “RAP Defendants”) issued 4 a response denying intervention and stating that “CDCR does not 5 offer 6 “encouraged to avoid lactose products.” (Dkt. No. 9 at 15-16; see 7 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 8 9 Plaintiff alleges that on June 10, 2019, Defendant Gates 10 responded to one of Plaintiff’s appeals (from April 7) denying 11 relief and falsely stating that Plaintiff’s primary care physician 12 had “not document[ed] a current recommendation for outpatient 13 therapeutic diet related to ulcerative colitis management.” 14 No. 9 at 16; see Dkt. No. 9-2 at 6-7). 15 Gandara rejected one of Plaintiff’s grievances as duplicative, 16 asserting that “[a] lactose free diet is not a Health Care Services 17 issue.” 18 August 5, 2019, contending that Dr. Viernes and Dr. Kerk had 19 prescribed a lactose-free diet, which Food Services had failed to 20 provide. 21 Defendant Rivera denied relief on September 12, 2019, noting that 22 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). 23 24 25 26 27 28 5 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 1 it is a CUSTODY issue and NOT a health care issue.” 2 at 20; see Dkt. No. 18). (Dkt. No. 9 3 4 Plaintiff alleges that he met with a registered dietitian on 5 September 20, 2019, who “apologized for the ‘gap in [Plaintiff’s] 6 medical care,’” and remarked that it was “crazy” that Plaintiff 7 had been at CIM for “so long with [his] medical needs, and had not 8 seen the dietitian sooner.” (Dkt. No. 9 at 20). 9 10 On September 25, 2019, Defendants Simpson and Bishop responded 11 to an appeal by denying relief and stating that, though Plaintiff’s 12 doctor had prescribed a lactose-free diet, lactose-free meals were 13 unavailable. (Dkt. No. 9-1 at 1; see Dkt. No. 9-3 at 1-2). Simpson 14 and Bishop explained that an alternative meal plan was available 15 in place of lactose-free meals, and that Plaintiff was assisted 16 “in making smarter item selections within the meal plan.” 6 (Id.). 17 6 18 19 20 21 22 23 24 25 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: 26 27 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 28 7 1 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 4 5 Plaintiff alleges that on November 18, 2019, Defendant Farooq 6 continued to deny Plaintiff his “duly prescribed Lactose-Free Diet” 7 and “plac[ed] the burden on Plaintiff ‘to shop at Canteen for 8 protein substitutes (plain chicken, ham, etc.) when menu entrée 9 items contain dairy,’ rather than adequately supply[ing] food.” 7 10 (Dkt. No. 9-1 at 3-4; see Dkt. No. 9-4 at 8-9). 11 appealed, Defendant Gates denied relief on February 3, 2020. 12 No. 9-1 at 4-6, 7; see Dkt. No. 9-4 at 6-7, 11-12). When Plaintiff (Dkt. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 5 arthritic gout were causing pain and physical distress that made 6 it difficult for him to relax. 7 Dr. Riaz had “implicitly agreed” that Plaintiff needed a sedative, 8 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 12 13 Plaintiff additionally alleges that he submitted numerous 14 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 17 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 24 25 26 27 28 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 14 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. 23 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, 18 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 23 24 25 26 27 28 20

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