Ahdom v. Lopez et al

Filing 17

FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims and Defendants, signed by Magistrate Judge Sandra M. Snyder on 10/14/2011, referred to Judge Ishii. Objections Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BILAL AHDOM,

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CASE NO. 1:09-cv-01874-AWI-SMS PC
Plaintiff,

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v.

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FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSING CERTAIN
CLAIMS AND DEFENDANTS

S. LOPEZ, et al.,

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(ECF No. 13)
Defendants.

OBJECTIONS DUE WITHIN THIRTY DAYS
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I.

Screening Requirement
Plaintiff Bilal Ahdom (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on October 26, 2009.

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Currently before the Court is the first amended complaint, filed September 14, 2010. (ECF No. 13.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.

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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at 1949 (quoting

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Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations

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contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 129

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S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555).

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II.

Complaint Allegations

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation

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(“CDCR”) and is incarcerated at the California Substance Abuse Treatment Facility in Corcoran.

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Plaintiff brings this action against Defendants CDCR, S. Lopez, Dr. Chen, Hedgepath, Schaefer, Dr.

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Spaeth, Dr. Shittu, Dr. Ashby, Araich, Dr. Rashidi, Dr. Paik, Orthopedic Medical Group, Matheny,

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M. Tolano, Kimura, D. Ghedhart, Harrington, and Does One through Seven alleging deliberate

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indifference to serious medical needs in violation of the Eighth Amendment and violation of the

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Americans With Disabilities Act (“ADA”). (First Am. Compl. ¶¶ 7-25.)

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On May 1, 2008, while housed at Kern Valley State Prison, Defendant Rashidi performed

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back surgery on Plaintiff. Defendant Rashidi ordered the incision be cleaned and dressed every two

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days and a six week follow -up appointment, but did not prescribe antibiotics after surgery. (Id. ¶

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26.) Plaintiff was seen by Defendant Araich on May 9, 2008, and she entered an order that his

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incision be cleaned and dressed every two days. (Id. ¶ 27.) Plaintiff’s incision was not cleaned and

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dressed. (Id. ¶ 29.) On May 24, 2008, Plaintiff was seen by Defendants Doe One and Two and told

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them that his staples were to have been removed on May 12, 2008, and that he was in pain and the

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incision was cracked, bleeding, and swollen. Defendants Doe One and Two confirmed that the
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staples were to have been removed around May 12, 2008, and informed him that his staples would

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not be removed until May 27, 2008. (Id. ¶ 30.) On May 27, 2008, Doe Three removed Plaintiff’s

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staples without providing him with additional pain medication, despite Plaintiff telling her to stop

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because the removal was causing him excruciating pain. (Id. ¶ 32.)

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From May 24, 2008 through September 11, 2008, Plaintiff requested antibiotics, a lower cell

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assignment, assignment to an ADA cell, a lower bunk and mattress chrono, a chrono exempting him

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from “proning,” and effective pain management from Defendants Araich, Doe One , Doe Two, Chen,

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Shittu, and Ashby which were denied. (Id. ¶¶ 28, 30, 31, 35-39, 43, 44.) Plaintiff alleges that due

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to the denial of his requests he was forced to suffer excruciating pain and his healing was interrupted.

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(Id. ¶ 40.)

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Plaintiff did not see Defendant Rashidi until August 12, 2008, and on June 12, 2008, Plaintiff

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filed an appeal regarding not having a six week follow-up appointment. (Id. at ¶¶ 33, 34.) Plaintiff

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complained about his medical treatment and lack of accommodations to Defendants Lopez and

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Spaeth.

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On October 5, 2008, Plaintiff was taken to Delano Emergency after he injured his Achilles

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tendon and was placed in a knee high cast and issued crutches. (Id. ¶ 45.) Plaintiff was seen by

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Defendants Shittu and Schaefer and requested pain medication, treatment for his tendon injury, and

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chronos for a lower tier/bunk cell, and other ADA accommodations. (Id. ¶¶ 46-50.)

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On October 27, 2008, Plaintiff was seen by Defendant Paik at the Orthopedic Medical Center

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who informed Plaintiff that his injury should be treated as soon as possible and ordered a pre-surgery

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MRI. (Id. ¶¶ 51, 52.) Defendant Paik refused Plaintiff’s request that he be admitted to the hospital

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immediately and an emergency MRI ordered so there would be no delay in treatment. (Id. ¶ 53.)

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Plaintiff was examined by Defendant Schaefer on October 30, 2008, and sent to Delano Emergency

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Room for pain in his back and leg. (Id. ¶ 56.) An MRI was done on November 7, 2008. (Id. ¶ 57.)

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Plaintiff saw Defendant Schaefer on November 10, 2008. Plaintiff requested a lower tier cell due

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to his cast and crutches. Defendant Schaefer denied the chrono, increased his medication, and told

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him he would be scheduled for an epidural injection. (Id. ¶ 58.)

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Plaintiff was taken to Delano Emergency Room after his cast caught on the stairs and he fell
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injuring his back on November 22, 2008. (Id. ¶ 59.) At the follow-up visit with Defendant Paik,

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Defendant refused to perform surgery on Plaintiff’s tendon. (Id. ¶ 60.) Plaintiff was told by Dr.

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Chandrasekaran, more than seven weeks after the injury, that he did not recommend surgery because

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the surgical repair should have been done within seven to fourteen days to obtain the best results.

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(Id. ¶ 61.)

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On November 25, 2008, Plaintiff mailed complaints to Defendants Hedgepeth and Kimura

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informing them of the delays in receiving medical care, continued pain, and denial of ADA

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accommodations. (Id. ¶ 63.) On December 17, 2008, Plaintiff was moved to a lower tier. (Id. ¶ 68.)

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Plaintiff was examined by Dr. Amirpour on January 5, 2009, and was diagnosed with a

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complete tear of his Achilles tendon. Dr. Amirpour did not recommend surgery due to the length

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of time since the injury occurred. (Id. ¶ 71.) Plaintiff was examined by Dr. Rahimifar on January

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22, 2008, who determined that Plaintiff would benefit from a more effective pain medication, but

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Defendant Lopez denied the recommendation. (Id. ¶ 72.)

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From May 4, 2008 through December 16, 2008, Plaintiff made numerous requests to

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Defendants Matheny, Doe Four, and Doe Five that he be moved to a lower cell due to pain from

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walking the stairs and fear of falling. (Id. ¶ 65.) Defendants Matheny, Doe Four, and Doe Five

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refused Plaintiff’s requests because they were not authorized to move Plaintiff without a lower

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tier/bunk chrono. (Id. ¶ 67.)

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Plaintiff’s appeals requesting effective pain management and an orthopedic mattress were

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denied by Defendants Schaefer, Lopez, Spaeth, and Tolano. The orthopedic mattress was denied

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because it was determined not to be medically necessary, although Dr. Qamar had authorized the

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issuance of an orthopedic mattress on July 7, 2007. (Id. ¶ 73.) Plaintiff’s request to see a specialist

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at the University of California, Davis was denied by Defendants Lopez, Schaefer, and Shittu on June

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23, 2009. (Id. ¶ 81.) Plaintiff is seeking declaratory relief and general and punitive damages.

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III.

Discussion

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A.

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Title II of the Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis

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of disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that “no

Americans With Disabilities Act

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qualified individual with a disability shall, by reason of such disability, be excluded from

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participation in or be denied the benefits of the services, programs, or activities of a public entity,

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or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to

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inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952, 1955

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(1998); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010).

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To establish a violation of Title II of the ADA, a plaintiff must show that (1) he is a qualified

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individual with a disability; (2) he was “excluded from participation in or denied the benefits of the

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public entity’s services, programs, or activities, or was otherwise discriminated against by the public

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entity;” and (3) “such exclusion or discrimination, or denial of benefits was because of his

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disability.” Simmons, 609 F.3d at 1021 (citations omitted); Martin v. California Dept. of Veterans

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Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009). “The ADA prohibits discrimination because of

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disability, not inadequate treatment for disability.” Simmons, 609 F.3d at 1022. The treatment or

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lack of treatment of a plaintiff’s disability does not provide a basis upon which to impose liability.

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Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (ADA claim cannot be based upon medical

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treatment decisions); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not

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create a remedy for medical malpractice.”). Additionally, the Ninth Circuit has held that a temporary

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disability does not constitute a disability under the ADA. Sanders v. Amenson Products, Inc., 91

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F.3d 1351, 1354 (9th Cir. 1996.)

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Plaintiff has failed to set forth any factual allegations that he has been denied any benefits

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because of a disability. Simmons, 609 F.3d at 1021. Since Plaintiff has failed to set forth allegations

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that he was discriminated against because of a disability, the Court need not decide if Plaintiff has

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a qualifying disability under the ADA. Plaintiff alleges that he has been denied accommodations and

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treatment for his medical conditions, the allegations of inadequate treatment for a disability are

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insufficient to state a cognizable claim. Id.

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B.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show “deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for

Deliberate Indifference

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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by demonstrating

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that failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary

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and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096.

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons, 609 F.3d at 1018. “Deliberate indifference is a high legal

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standard.” Id. at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official

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must be aware of facts from which he could make an inference that “a substantial risk of serious

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harm exists” and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Plaintiff allegations of deliberate indifference to his medical needs based upon two separate

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medical conditions, the back surgery and the injury to his Achilles tendon, meet the first prong of

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the deliberate indifference analysis. The second prong will be analyzed in relation to the

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deprivations alleged.

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1.

Denial of Medication

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Plaintiff alleges that following his back surgery, Defendants refused to prescribe an antibiotic

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even though he requested one to avoid infection. Although Plaintiff alleges that Defendants should

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have inferred that he was at danger of getting an infection, he fails to allege facts to indicate that he

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was at risk of infection. Plaintiff’s allegations that the surgical site was swollen, cracked, and

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bleeding are insufficient to allege that he had an infection. The facts alleged in the complaint state

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a difference of opinion between Plaintiff and prison medical authorities as to proper treatment and

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do not give rise to a claim. Franklin v. Oregon, 662 F.2d 1337, 1355 (9th Cir. 1981); Mayfield v.

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Craven, 433 F.2d 873, 874 (9th Cir. 1970).

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Plaintiff also alleges that Defendants were deliberately indifference by failing to provide

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effective pain manage following his surgery. Plaintiff’s allegations that, between May and October

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6, 2008, he informed Defendants Doe One, Doe Two, Araich, Chen, Shittu, Ashby, Lopez, and

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Spaeth that his pain medication was ineffective and they failed to act and that Defendant Doe Three

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removed his staples without pain medication are sufficient to state a cognizable claim.

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However, Plaintiff fails to state a cognizable claim against any other defendant for denial of
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medication. While Plaintiff claims that his complaints regarding his pain medication were

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disregarded, the complaint evidences otherwise. After October 5, 2008, when he injured his Achilles

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tendon, Plaintiff saw Defendant Shittu on October 6, 2008, and codeine was ordered. (First Am.

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Compl. at ¶ 46.) On October 15, 2008, Plaintiff saw Defendant Shittu and complained about his

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severe pain. Defendant Shittu prescribed Ibuprofen. (Id. at ¶ 48.) On October 21, 2008, Plaintiff

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saw Defendant Schaefer who prescribed a neuro pain medication four times daily. (Id. at ¶ 50.) On

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October 30, 2008, Plaintiff was seen by Defendant Schaefer regarding pain in his back and right leg.

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Defendant Schaefer sent Plaintiff to the Delano Emergency Room to be examined for possible blood

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clots and ordered codeine for pain. (Id. at ¶ 56.)

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Plaintiff saw Defendant Schaefer on November 10, 2008, who increased his pain medication,

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and informed him she would recommend he receive an epidural. (Id. at ¶ 58.) Plaintiff was taken

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to Delano Emergency Room on November 22, 2008, after his cast caught on the stairs causing him

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to fall and injure his back. (Id. at ¶ 59.) Plaintiff was examined by Defendant Schaefer on December

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5, 2008, and she made changes to Plaintiff’s pain medication. (Id. at ¶ 64.) On February 9, 2009,

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Plaintiff saw Defendant Schaefer and complained that the medication was making him nauseous and

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caused vomiting. Defendant Schaefer informed Plaintiff that his body had not had time to adjust to

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the medication and it was the best medication for Plaintiff’s chronic pain. (Id. at ¶ 75.) On February

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26, 2009, Plaintiff complained to Defendant Rashidi that he was continuing to have bad reactions

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to the pain medication and Defendant Rashidi changed his medication. (Id. at ¶ 79.)

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Plaintiff’s allegation that after he was examined by Defendant Rashidi on December 23,

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2008, Defendant Lopez failed to follow Defendant Rashidi’s recommendation to prescribe

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Morphine, (id. at ¶ 69), states a difference of opinion between medical providers regarding treatment

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that does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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The facts show that after Plaintiff injured his Achilles tendon, he was seen eight times by his medical

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providers who made adjustments to his medication in response to his complaints. See Estelle, 429

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U.S. at 107 (medical decision regarding treatment is at most medical malpractice which does not

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state a claim for deliberate indifference). Plaintiff has failed to allege facts that any Defendant was

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deliberately indifferent to his need for pain medication after October 5, 2008.
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Denial of Requests for Accomodation

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Plaintiff allegations that Defendants refused his requests that he be assigned an ADA cell,

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a lower bunk and mattress chrono, and an exemption from proning due to his back pain fail to state

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a cognizable claim. Plaintiff’s medical providers denied Plaintiff’s requests after determining that

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the accommodations were not medically necessary. Plaintiff’s statement that the healing of his back

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was interrupted is insufficient to establish that he suffered any injury from the denial of the requests

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for accommodation. Additionally, the fact that Dr. Qamar had authorized the issuance of an

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orthopedic mattress on July 7, 2007, (id. at ¶ 73), does not state a cognizable claim against

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Defendants for denying Plaintiff’s request, Vild, 891 F.2d at 242.

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Plaintiff’s allegation that, after being placed in a cast, he was denied a lower tier chrono and

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subsequently fell down the stairs injuring his back is sufficient to state a claim against Defendants

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Shittu and Schaefer.

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However, Plaintiff fails to state a cognizable claim against Defendants Hedgepeth, Kimura,

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Matheny, Doe Four, and Doe Five. Plaintiff states that he mailed complaints to Defendants

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Hedgepeth and Kimurra informing them of the denial of his requests on November 25, 2008. (First

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Am. Compl. at ¶ 63.) Approximately three weeks later, on December 17, 2008, Plaintiff was moved

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to a lower tier. (Id. at ¶ 68.) The Court takes judicial notice that the complaints were mailed during

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the week of Thanksgiving. The complaint fails to show that Defendants Hedgepeth and Kimura

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were deliberately indifferent given that Plaintiff was moved soon after notifying them of his

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complaints.

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Although Plaintiff requested a lower tier from Defendants Matheny, Doe Four, and Doe Five,

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they did not move Plaintiff to a lower tier because they were not authorized to move Plaintiff without

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a lower tier/bunk cell chrono. (Id. at ¶ 67.) When resolving a claim under the Eighth Amendment

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against individual defendants, causation must be resolved by “a very individualized approach which

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accounts for the duties, discretion, and means of each defendant.” Leer v. Murphy, 844 F.2d 628,

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633-34 (9th Cir. 1988) citing with approval Williams v. Bennett, 689 F.2d 1370, 1384 (11th Cir.

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1982) (“There can be no duty, the breach of which is actionable, to do that which is beyond the

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power, authority, or means of the charged party. One may be callously indifferent to the fate of
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prisoners and yet not be liable for their injuries. Those whose callous indifference results in liability

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are those under a duty -- possessed of authority and means -- to prevent the injury.”) Since

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Defendants Matheny, Doe Four, and Doe Five did not have the authority to move Plaintiff they are

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not liable for the failure to grant his request.

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3.

Denial of Surgery

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Initially, while Plaintiff alleges that he was seen by Defendants Shittu and Schaefer who

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failed to act on his request for emergency treatment of his Achilles tendon, the record shows

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otherwise. Plaintiff was sent to a specialist approximately three weeks after his injury. The request

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to see a specialist would have been submitted by the treating physician, therefore his need for

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treatment was addressed.

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Plaintiff alleges that Defendant Paik was deliberately indifferent in failing to admit him to

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the hospital and order an emergency MRI on October 27, 2008. Plaintiff claims that the delay in

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treating his injury caused him to be unable to have surgery to repair his Achilles tendon. Plaintiff

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received his MRI on November 7, 2008, and was seen by Defendant Paik for a follow-up

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appointment on November 25, 2008. (Id. at ¶¶ 57, 60.) Plaintiff complains that Defendant Paik

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refused to perform surgery although he had stated that he would at the initial examination. However,

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at the time of the initial examination Defendant Paik would not have had the results of the MRI and

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therefore, would not know the extent of Plaintiff’s injury.

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The facts as alleged show that Defendant Paik determined that the MRI results indicated that

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surgery was not appropriate. This is further supported by the fact that Plaintiff was seen by other

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specialists who informed him that he was not a candidate for surgery. (Id. at ¶¶ 61, 71.) Plaintiff

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was informed by Dr. Chandrasekaran that surgery should have been done within seven to fourteen

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days of the injury to obtain the best results. The initial appointment with Defendant Paik occurred

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October 27, 2008, twenty two days after the injury. Neither the decision that Plaintiff was not a

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candidate for surgery or the refusal to admit Plaintiff to the hospital on October 27, 2008, rise to the

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level of deliberate indifference. Plaintiff’s disagreement with the treating physician as to proper

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treatment does not give rise to a claim. Franklin, 662 F.2d at 1355; Mayfield, 433 F.2d at 874.

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Additionally, there is no indication that Defendants Shittu, Schaefer, or Paik were aware that
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Plaintiff’s injury needed surgical treatment sooner and deliberately failed to act.

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To the extent that Plaintiff is alleging that Defendants were negligent or failed to diagnose

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and properly treat him, he fails to state a cognizable claim. An allegation by a prisoner that a

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physician has been merely indifferent or negligent or has committed medical malpractice in

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diagnosing or treating a medical condition does not state a constitutional claim. Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980); Toguchi, 391 F.3d at 1057. “Medical malpractice

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does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429

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U.S. at 106.

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Plaintiff alleges that, in February 2009, Plaintiff sent letters to Defendants Ghedhart and

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Harrington informing them about the delays in medical treatment, denials of accommodations, and

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ineffective pain management and they failed to act. (First Am. Compl. at ¶¶ 77, 78.) However, by

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this date, Defendants were treating Plaintiff with multiple medications in an attempt to address his

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complaints regarding pain and he had been assigned a lower cell. Plaintiff fails to show that

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Defendants Ghedhart or Harrington failed to act in response to any serious medical need that was

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not already being addressed by his treating physicians.

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4.

Failure Comply With Surgeon’s Orders

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Plaintiff’s allegations that the orders made by Defendant Rashidi were not followed, fails to

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state a cognizable claim. While Plaintiff states that Defendant Araich failed to clean and dress his

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wounds every two days as ordered, he has failed to show that it was her responsibility to clean and

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change the dressings, or that she was aware that his wounds were not being dressed. When Plaintiff

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was seen by Defendant Araich on May 9, 2008, she entered an order for his wounds to be cleaned

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and dressed, Plaintiff may not state a claim against Defendant Araich based upon the failure of other

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prison employees to follow the orders issued. Iqbal, 129 S. Ct. at 1948. The factual allegations do

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not link the failure to clean and dress his wounds to any named defendant.

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When Plaintiff was seen on May 24, 2008, his wound was cleaned and dressed and Plaintiff

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was informed that his staples would be removed on May 27, 2008. While Plaintiff complains that

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Defendant Rashidi ordered his staples to be removed on May 11, 2008, the difference of opinion

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between treating professionals as to when the staples should be removed is insufficient to state a
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cognizable claim. Vild, 891 F.2d at 242. The facts as alleged do not “show that the course of

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treatment the doctors choose was medically unacceptable under the circumstances, . . . and . . . they

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chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.

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McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Further there is no indication that the failure to remove

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the staples resulted in serious harm to Plaintiff.

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Finally, assuming that Plaintiff could show he suffered serious harm, Plaintiff’s statement

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that Defendant Lopez did not ensure that Plaintiff was transported for a six week follow-up

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appointment fails to show that Defendant Lopez had any knowledge of Plaintiff’s need to be

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transported. Plaintiff fails to set forth factual allegations to link any defendant to the failure to

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follow-up with Defendant Rashidi within two weeks.

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5.

Referral to Specialist

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Plaintiff claims that Defendants Lopez, Schaefer, and Shittu failed to have Plaintiff examined

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by a specialist at the University of California, Davis. According to Plaintiff’s complaint, he has been

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seen by several medical specialists who determined that he is not a candidate for surgery to repair

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the injury to his Achilles tendon and the fact that he wants additional consultations does not state a

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cognizable claim. Franklin, 662 F.2d at 1355; Mayfield, 433 F.2d at 874.

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C.

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Plaintiff may not bring suit against CDCR or against Defendants in their official capacity.

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“The Eleventh Amendment bars suits for money damages in federal court against a state [and] its

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agencies . . .” Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007), “regardless

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of the relief sought, unless the state unequivocally consents to a waiver of its immunity,” Yakama

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Indian Nation v. State of Washington, 176 F.3d 1241, 1245 (9th Cir. 1999); see also Seminole Tribe

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of Fla. v. Florida, 116 S. Ct. 1114, 1122 (1996). The CDCR is a state agency entitled to Eleventh

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Amendment Immunity. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Defendant Liability

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D.

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In addition to money damages, Plaintiff seeks a declaration that his rights were violated. “A

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declaratory judgment, like other forms of equitable relief, should be granted only as a matter of

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judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village,

Declaratory Relief

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333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful

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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford

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relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759

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F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a

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verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were

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violated. Accordingly, a declaration that Defendants violated Plaintiff’s rights is unnecessary, and

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this action shall proceed as one for money damages only.

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IV.

Conclusion and Order

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Plaintiff’s first amended complaint sets forth a cognizable claim against Defendants Araich,

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Chen, Shittu, Ashby, Lopez, Spaeth, Doe One, Doe Two, and Doe Three for failure to provide

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adequate pain medication; and Defendants Schaefer and Shittu for failing to grant his lower tier

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accommodation in violation of the Eighth Amendment. However, Plaintiff’s complaint does not

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state any other claims for relief under section 1983. Because Plaintiff has previously been notified

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of the deficiencies and given leave to amend, the Court recommends that the non-cognizable claims

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be dismissed, with prejudice. Noll, 809 F.2d at 1448-49. Based on the foregoing, it is HEREBY

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RECOMMENDED that:

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1.

This action proceed on Plaintiff’s first amended complaint, filed September 14, 2010,

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against Defendants Araich, Chen, Shittu, Ashby, Lopez, Spaeth, Doe One, Doe Two,

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Doe Three, and Schaefer for deliberate indifference to medical needs for monetary

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relief;

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2.

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Plaintiff’s ADA and remaining Eighth Amendment claims be dismissed, with
prejudice, for failure to state a claim under section 1983; and

3.

Defendants CDCR, Rashidi, Paik, Orthopedic Medical Center, Matheny, Hedgepeth,

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Kimura, Tolano, Ghedhart, Harrington, and Does Four through Seven be dismissed,

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with prejudice, based upon Plaintiff’s failure to state a cognizable claim against them.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
icido3

October 14, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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