King v. Chokatos et al

Filing 36

ORDER Finding Cognizable Claims; ORDER for this Case to Proceed Against Defendants Chokatos and Stringer on Plaintiff's Eighth Amendment Medical Claims and Supplemental State Law Claims signed by Magistrate Judge Gary S. Austin on 10/01/2015. Answer due by 11/3/2015.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DARRELL WAYNE KING,

12

Plaintiff,

13
14

vs.
JOHN D. CHOKATOS, et al.,

15

Defendants.

16

ORDER FINDING COGNIZABLE CLAIMS
ORDER FOR THIS CASE TO PROCEED
AGAINST DEFENDANTS CHOKATOS AND
STRINGER ON PLAINTIFF’S EIGHTH
AMENDMENT MEDICAL CLAIMS AND
SUPPLEMENTAL STATE LAW CLAIMS
THIRTY DAY DEADLINE FOR DEFENDANTS
TO FILE ANSWER TO FIRST AMENDED
COMPLAINT
(ECF No. 33.)

17
18
19

1:12-cv-01936-LJO-GSA-PC

I.

BACKGROUND

20

Plaintiff filed the Complaint commencing this action on November 29, 2012. (ECF No.

21

1.) The court screened the Complaint pursuant to 28 U.S.C. 1915A and issued an order on

22

August 19, 2013, finding that Plaintiff stated cognizable claims under § 1983 against

23

defendants Dr. John D. Chokatos and LVN Michelle Ivy Stringer (“Defendants”) for

24

inadequate medical care in violation of the Eighth Amendment. (ECF No. 10.)

25

directed the U.S. Marshal to serve process upon Defendants. (Id.)

The court

26

On February 18, 2014, Defendants filed a motion to dismiss the Complaint for failure to

27

exhaust remedies, failure to comply with the California Government Torts Act, and failure to

28

state a claim for professional negligence against defendant Stringer. (ECF No. 16.) On August
1

1

25, 2014, the court issued an order granting in part and denying in part Defendants’ motion to

2

dismiss. (ECF No. 32.) Plaintiff was ordered to either file an amended complaint or notify the

3

court of his willingness to proceed only with the claims found cognizable by the court. (ECF

4

No. 32.) On September 2, 2014, Plaintiff filed the First Amended Complaint, which is now

5

before the court for screening. (ECF No. 33.)

6

II.

SCREENING REQUIREMENT

7

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

8

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

9

The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

10

legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

11

that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

12

' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

13

paid, the court shall dismiss the case at any time if the court determines that the action or

14

appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

15

A complaint is required to contain Aa short and plain statement of the claim showing

16

that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

17

not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere

18

conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

19

1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

20

(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

21

unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

22

(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

23

matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

24

at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

25

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

26

state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

27

F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

28

plausibility standard. Id.
2

1

III.

SUMMARY OF PLAINTIFF’S ALLEGATIONS

2

Plaintiff is presently incarcerated in the custody of the California Department of

3

Corrections and Rehabilitation (CDCR) at Pleasant Valley State Prison (PVSP) in Coalinga,

4

California, where the events at issue in the First Amended Complaint allegedly occurred.

5

Plaintiff names as defendants Dr. John D. Chokatos and LVN Michele Ivy Stringer

6

(“Defendants”). Defendants were employed by the CDCR at PVSP at the time of the events at

7

issue. Plaintiff’s factual allegations follow.

8

Plaintiff injured his spine in early 2008. An x-ray revealed lumbar muscle spasms,

9

narrowing of the L3-L5 vertebrae, and possible disc herniation or degeneration. During the

10

next three years, Plaintiff’s spinal condition worsened. During this period, Plaintiff was seen

11

by various physicians, who all prescribed opioid pain medication after it was determined that

12

NSAID analgesics were ineffective. Plaintiff’s back pain eventually became so severe that he

13

could not walk unassisted and could only ameliorate his pain slightly if he lay on his left side in

14

a fetal position.

15

In early 2011, Plaintiff suffered from numbness of his left side from the waist down.

16

On July 25, 2011, Plaintiff collapsed to the ground when his legs lost function due to severe

17

back pain which left him unable to walk. Plaintiff was transported to the Medical Clinic via

18

stretcher.

19

submitted a CDCR Form 7362, Health Care Services Request Form (“Request”), complaining

20

of extreme pain and numbness in his left side from hip to toes and severe muscle spasms.

This incident was documented in Plaintiff’s chart.

Two days later, Plaintiff

21

On July 28, 2011, Plaintiff visited defendant Dr. Chokatos at the Medical Clinic.

22

Plaintiff told Chokatos that his spinal pain was severe, that his left leg and foot would become

23

numb if he moved suddenly, and that he needed a wheelchair. Chokatos told Plaintiff, “I don’t

24

think you need a wheelchair or Tramadol. I don’t think you’re in the pain you say you’re in.”

25

(First Amended Complaint (FAC), ECF No. 33 ¶23.) Chokatos did not order Plaintiff a

26

wheelchair or pain medication, contrary to accepted medical practice. Chokatos ordered an x-

27

ray of Plaintiff’s lumbar spine, which was taken that day. Dr. Tony Deeths [not a defendant]

28
3

1

compared this x-ray to the March 11, 2008 x-ray and wrote in Plaintiff’s chart that he found

2

disc narrowing of the L1-L5 vertebrae, and spondylosis.

3

Three days later, on July 31, 2011, Plaintiff submitted a Request complaining of “severe

4

hip pain.” (FAC ¶27.) On August 2, 2011, Plaintiff was seen again by Chokatos. Chokatos

5

observed that Plaintiff was using a cane which he had to borrow from another inmate. In the

6

Medical Progress Note for this examination, Chokatos falsely stated that as to Plaintiff’s lower

7

back pain, “There were no abnormal orthopedic or neurologic findings.” (FAC ¶30.) Contrary

8

to accepted medical practice, Chokatos did not order an MRI or refer Plaintiff to an orthopedic

9

or neurological specialist.

10

On August 8, 2011, Plaintiff was examined by a nurse who noted in his chart that he

11

complained that his back still hurt quite a bit. On August 12, 2011, Plaintiff submitted another

12

Request, complaining of excruciating pain and partial functioning of his left side. On August

13

28, 2011, Plaintiff submitted a 6th Request, stating that he has a chronic condition, is not

14

receiving adequate treatment, and cannot sleep well.

15

noticeable and “[t]here is something growing internally.” (FAC ¶35.) On August 31, 2011,

16

Plaintiff was examined by Physician’s Assistant (PA) J. Fortune [not a defendant] who

17

reviewed Plaintiff’s chart and x-rays, ordered an MRI of Plaintiff’s lumbar spine, and issued

18

chronos for a ground floor cell, bottom bunk, back brace, and cane.

Plaintiff reported that a bulge was

19

On September 12, 2011, during physical therapy, Plaintiff’s legs went numb and he was

20

rushed to the Correctional Treatment Center (hospital). The nurse noted Plaintiff’s complaints

21

that he was unable to do anything, even exercise, could not deal with the pain around the clock,

22

and needed to be sent out because he thinks something is wrong inside. Plaintiff reported that

23

when he urinates, he has a sharp pain coming from his back to his left bladder area. The nurse

24

noted a severe right lateral trunk shift, that Plaintiff walks slowly with a cane, and that his back

25

is not in alignment with low body when he ambulates. Plaintiff was also seen by PA Randolph

26

Wilson [not a defendant] who ordered that he be examined at the Clinic the next day.

27

Plaintiff received a priority ducat to visit Chokatos on September 14, 2011, but

28

Chokatos refused to see him on September 14th and again on the 15th. Plaintiff talked to his
4

1

psychiatrist about the problem, who called Chokatos, and Chokatos told her he would see

2

Plaintiff that day, but he did not. Plaintiff submitted another Request and complained about his

3

inadequate medical treatment.

4

On September 16, 2011, Dr. Ranjiv Saini [not a defendant] conducted an MRI

5

examination of Plaintiff’s lumbosacral spine, as ordered by Fortune. Saini documented that the

6

MRI showed “degenerative changes” including a left disc extrusion causing “moderate to

7

severe spinal stenosis in the left lateral recess and impingement of the left exiting nerve roots.”

8

(FAC ¶48.)

9

A week later, Plaintiff was examined by PA Wilson, who reviewed the MRI results and

10

Plaintiff’s chart, renewed Plaintiff’s prescription for pain medication, issued a chrono for

11

Plaintiff to use a wheelchair and cane for three months, referred Plaintiff to a neurologist, and

12

ordered that at work Plaintiff must “avoid prolonged standing, walking, [and] lifting [over 15

13

pounds].” (FAC ¶50.)

14

On September 24, 2011, Plaintiff approached defendant LVN Stringer for a dose of pain

15

medication, and she told him his prescription had not been refilled.

16

frustration because this was the fourth time Stringer failed to renew the prescription. Stringer

17

grew irritated and said, “You don’t have to take any meds,” and left the housing unit. (FAC

18

¶54.) From September 24-26, Plaintiff did not receive pain medication, resulting in severe,

19

debilitating pain.

Plaintiff expressed

20

On September 28, 2011, Plaintiff was called to the Clinic by Chokatos who told

21

Plaintiff that Stringer said she saw him run up and down the stairs. Chokatos said he was

22

taking away the wheelchair and pain medication “because you don’t need them.” (FAC ¶57.)

23

Plaintiff believes Stringer falsely told Chokatos that he had run up and down the stairs.

24

Plaintiff told Chokatos that this was not true and asked Chokatos to call the correctional

25

officers in Plaintiff’s housing unit to confirm it was false. Chokatos refused and said that “the

26

LVN has no reason to lie on you. I know Stringer.” (FAC ¶60.) Chokatos wrote in his notes

27

that nobody with Plaintiff’s condition would be able to run up and down a flight of stairs, and

28

ordered Plaintiff’s pain medication be discontinued, wheelchair and cane be confiscated, and
5

1

Plaintiff’s assignment to the bottom bunk and a ground floor cell be revoked. Chokatos also

2

changed Plaintiff’s job assignment limitations from “avoid prolonged standing, walking, and

3

lifting” to “cannot continuously squat, crouch, crawl.” (FAC ¶63.) Plaintiff believes there are

4

no job positions where an inmate must continuously squat, crouch, or crawl.

5

On October 13, 2011, Plaintiff submitted another Request complaining, in part,

6

“ongoing numbness in my leg and foot ... I am in constant pain which is becoming unbearable.

7

I need to see a doctor ASAP.” (FAC ¶65.) That day, Chokatos removed Plaintiff from the

8

Disability Placement Program, falsely writing that there was “no evidence of a significant

9

mobility impairment.” (FAC ¶66.)

10

On October 17, 2011, Plaintiff was examined by E. Conway, RN [not a defendant] who

11

documented his complaints of a loss of bladder control and that his medication was not

12

controlling his pain.

13

On October 19, 2011, Plaintiff was seen by the Clinical Case Management Review
The CCMRC contacted Plaintiff’s

14

Committee (CCMRC) about his ongoing complaints.

15

housing unit officers, who denied seeing him run up and down stairs and corroborated the fact

16

that he has been moving slower, holding onto things, and not moving as much over the last

17

three months. The CCMRC found that Plaintiff’s complaints of pain and observable symptoms

18

were consistent with all objective evidence, and recommended that he see a neurosurgeon as

19

soon as possible, remain in a wheelchair, remain with a lower bunk and ground floor

20

assignment, and continue taking the Tramadol that Chokatos had discontinued. The next day,

21

Chokatos ignored the CCMRC’s orders and discontinued Plaintiff’s wheelchair, cane, back

22

brace, and bottom bunk and ground floor assignment.

23

On October 23, 2011, Plaintiff submitted a Request complaining of an overwhelming

24

hot burning sensation going down his glute muscle, the back of his leg, and all the way to his

25

left foot, which was wearing him down mentally and emotionally.

26

On October 28, 2011, Plaintiff was evaluated by neurosurgeon Dr. Majid Rahimifar

27

[not a defendant], who reviewed Plaintiff’s records and examined him. He noted that Plaintiff

28

was in severe distress, walked with a pelvic tilt to the right, and had classic symptoms
6

1

corresponding to the MRI finding. He diagnosed Plaintiff with spinal stenosis and a left foot

2

drop resulting from a ruptured L4-L5 disc. He recommended that Plaintiff receive lower back

3

surgery as soon as possible.

4

recommendation for surgery.

Chokatos received Rahimifar’s report and ignored the

5

On October 31, 2011, Plaintiff was called to an 8:00am appointment at the Clinic by

6

Chokatos, who made Plaintiff sit outdoors in his wheelchair for over five hours. During this

7

time, other inmates who were called to the Clinic after Plaintiff were seen by Chokatos.

8

Plaintiff asserts that the average wait time for a doctor appointment at the Clinic is less than an

9

hour. Twice during this period, other inmates complained to Clinic Officer Alcala that Plaintiff

10

was suffering severe back pain, which was worsening, and was moaning in pain. Each time an

11

inmate complained, Chokatos said, “He can either wait for his appointment or refuse it.” (FAC

12

¶83.)

13

Chokatos standing at the Clinic door watching Plaintiff and laughing.

While Plaintiff sat outside in pain, officers, inmates, and medical staff observed

14

Around 1:30 pm, Plaintiff’s pain became so severe that he tried to stand up to relieve it,

15

but his legs gave out and he collapsed to the ground. Other inmates got the attention of officers

16

who sounded the alarm for medical emergency. Officers, inmates, and medical staff observed

17

Chokatos standing at the Clinic window watching as Plaintiff lay on the ground screaming in

18

pain. Medical staff did not respond to the alarm, despite the Clinic being less than 30 feet from

19

where Plaintiff fell. Plaintiff believes that Chokatos ordered Clinic staff not to respond.

20

Officers strapped Plaintiff to a stretcher, placed it on a gurney, wheeled Plaintiff into

21

Chokatos’ office, and left the Clinic. Plaintiff screamed in agony and begged Chokatos to allow

22

him to lie on his side instead of flat on his back, which made the pain worse, but Chokatos

23

ignored Plaintiff’s pleas for over 10 minutes, causing Plaintiff to lose consciousness. Chokatos

24

ordered medical staff to wheel Plaintiff’s gurney into the Clinic holding cage, saying, “I’m tired

25

of hearing this guy.” (FAC ¶93.)

26

Plaintiff awoke in the holding tank, strapped to the gurney on his back, and begged for

27

help for about an hour. Plaintiff’s pain became so severe that he lost consciousness, emptying

28

///
7

1

his bladder and bowels. Plaintiff regained consciousness in the back of an ambulance on the

2

way to the hospital.

3

Upon arrival at the hospital, Plaintiff was evaluated by PA Wilson who noted that

4

Plaintiff was crying and visibly distressed, was unable to walk, had decreased sensation to his

5

lower extremity, and had a hot fiery stabbing pain that shot through his groin and down his leg.

6

PA Wilson ordered that Plaintiff be given Tramadol and morphine for pain and then be

7

immediately transported to the E.R. at Bakersfield Memorial Hospital for emergency spinal

8

surgery. Plaintiff was admitted to the hospital and received emergency surgery to remove the

9

herniated L4-L5 disc. Plaintiff remained hospitalized for over 10 days to recover.

10

Plaintiff requests declaratory relief, monetary damages, costs of suit, and attorney’s

11

fees.

12

IV.

PLAINTIFF=S MEDICAL CLAIMS

13

The Civil Rights Act under which this action was filed provides:

14

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .

15
16
17
18

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

19

provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor,

20

490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see

21

also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los

22

Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir.

23

2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

24

To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

25

under color of state law and (2) the defendant deprived him of rights secured by the

26

Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

27

2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing

28

“under color of state law”). A person deprives another of a constitutional right, “within the
8

1

meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or

2

omits to perform an act which he is legally required to do that causes the deprivation of which

3

complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th

4

Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); “The requisite causal

5

connection may be established when an official sets in motion a ‘series of acts by others which

6

the actor knows or reasonably should know would cause others to inflict’ constitutional harms.”

7

Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743).

8

causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”

9

Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City

10

This standard of

of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
Deliberate Indifference – Eighth Amendment

11

A.

12

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

13

inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

14

1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

15

The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

16

medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

17

further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

18

defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

19

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

20

Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

21

omitted). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

22

prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing

23

McGuckin, 974 F.2d at 1060).

24

officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

25

the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

26

delay in receiving medical treatment, the delay must have led to further harm in order for the

27

prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at

28

///

Deliberate indifference may be manifested Awhen prison

9

1

1060 (citing Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir.

2

1985)).

3

ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

4

1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

5

facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

6

that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

7

825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

8

was not, then the official has not violated the Eighth Amendment, no matter how severe the

9

risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.
AA showing of medical malpractice or negligence is insufficient to establish a

10

2002)).

11

constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

12

is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

13

F.2d 1332, 1334 (9th Cir. 1990)).

14

AA difference of opinion between a prisoner-patient and prison medical authorities

15

regarding treatment does not give rise to a ' 1983 claim.@ Franklin v. Oregon, 662 F.2d 1337,

16

1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff Amust show that the course

17

of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

18

that they chose this course in conscious disregard of an excessive risk to plaintiff=s health.@

19

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

20

Discussion

21

Plaintiff has demonstrated that he had serious medical needs, due to a medical condition

22

that caused him extreme pain and other physical symptoms. Further, the court finds that

23

Plaintiff states cognizable Eighth Amendment medical claims against defendants Chokatos and

24

Stringer, for deliberate indifference to his serious medical needs.

25

B.

26

Plaintiff brings claims against defendants Chokatos and Stringer for medical

27

malpractice, which is a state tort. Plaintiff is informed that violation of state tort law is not

28

sufficient to state a claim for relief under ' 1983. To state a claim under ' 1983, there must be

Medical Malpractice -- State Law Claim

10

1

a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693

2

(1976). Although the court may exercise supplemental jurisdiction over state law claims,

3

Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367.

4

Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has

5

original jurisdiction, the district court Ashall have supplemental jurisdiction over all other

6

claims in the action within such original jurisdiction that they form part of the same case or

7

controversy under Article III [of the Constitution],@ with specific exceptions.

8

jurisdiction over state claims exists when the federal claim is sufficiently substantial to confer

9

federal jurisdiction, and there is a 'common nucleus of operative fact between the state and

10

federal claims.'" Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (quoting Gilder v. PGA

11

Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991)). A[O]nce judicial power exists under ' 1367(a),

12

retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary.@

13

Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has

14

cautioned that Aif the federal claims are dismissed before trial, . . . the state claims should be

15

dismissed as well.@ United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

"Pendent

16

In this instance, the Court has found cognizable ' 1983 claims in the First Amended

17

Complaint against defendants Chokatos and Stringer. Therefore, at this juncture, the Court

18

shall exercise supplemental jurisdiction over Plaintiff=s state tort law claims that form part of

19

the same case or controversy as Plaintiff=s cognizable federal claims.1

20

V.

CONCLUSION

21

The Court finds that Plaintiff=s First Amended Complaint states cognizable claims

22

against defendants Chokatos and Stringer for deliberate indifference to serious medical needs in

23

violation of the Eighth Amendment. Accordingly, Plaintiff shall be allowed to proceed with

24

the First Amended Complaint filed on September 2, 2014, on the claims found cognizable by

25

the Court and supplemental state law claims.

26
27
28

1
At this stage of the proceedings, the Court makes no determination about the viability of Plaintiff=s state
tort claims.

11

1

Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

2

1.

This action now proceeds with the First Amended Complaint, on Plaintiff=s

3

Eighth Amendment claims against defendants Dr. John D. Chokatos and LVN

4

Michele I. Stringer, for failure to provide adequate medical care in violation of

5

the Eighth Amendment, and for supplemental state law claims; and

6

2.

7

Within thirty days from the date of service of this order, Defendants shall file an
Answer to the First Amended Complaint.

8
9
10
11

IT IS SO ORDERED.
Dated:

October 1, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12