Moran v. Ola et al
Filing
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ORDER DISMISSING Action for Failure to State a Cognizable Claim for Relief, Subjecting Plaintiff to Strike Under 28 U.S.C. § 1915(g); ORDER DIRECTING Clerk of Court to Enter Judgment and Close Case 20 , signed by Magistrate Judge Stanley A. Boone on 9/7/17. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NICOLAS MORAN,
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Plaintiff,
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v.
A. OLA, et al.,
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Defendants.
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Case No.: 1:14-cv-01487-SAB (PC)
ORDER DISMISSING ACTION FOR FAILURE
TO STATE A COGNIZABLE CLAIM FOR
RELIEF, SUBJECTING PLAINTIFF TO STRIKE
UNDER 28 U.S.C. § 1915(g)
ORDER DIRECTING CLERK OF COURT TO
ENTER JUDGMENT AND CLOSE CASE
[ECF No. 20]
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. §
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1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF
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No. 6.)
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Currently before the Court is Plaintiff’s third amended complaint, filed August 9, 2017. (ECF
No. 20.)
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I.
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SCREENING REQUIREMENT
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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 Court
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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous
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or malicious,” that “fail to state a claim on which relief may be granted,” or that “seek monetary relief
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against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally
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participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
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2002).
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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally
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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,
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which requires sufficient factual detail to allow the Court to reasonably infer that each named
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defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
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572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not
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sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying
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the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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II.
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BACKGROUND
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Plaintiff’s original complaint was filed on September 24, 2014. (ECF No. 1.) The Court ruled
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on certain motions, and the originally-assigned magistrate judge then retired from the bench in August
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2015. (ECF No. 7.) The matter was then reassigned to the undersigned.
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On February 16, 2016, the Court screened Plaintiff’s complaint and dismissed it for the failure
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to state a cognizable claim upon which relief could be granted, with leave to amend within thirty days.
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(ECF No. 9.) Following an extension of time, on April 15, 2016, Plaintiff filed a first amended
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complaint. (ECF No. 12.)
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On October 19, 2016, the Court screened Plaintiff’s first amended complaint and dismissed it
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for the failure to state a claim upon which relief may be granted, with leave to amend only his claim of
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false charges of hoarding medication. (ECF No. 13.) Following the partial granting of an extension of
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time, Plaintiff filed his second amended complaint on December 8, 2016. (ECF No. 16.)
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On May 31, 2017, the Court screened Plaintiff’s second amended complaint and dismissed it
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for the failure to state a claim upon which relief may be granted, with one final grant of leave to
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amend only his claim of a violation of his due process rights related to false charges of hoarding
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medication. (ECF No. 17.) Following the grant of an extension of time, Plaintiff filed his third
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amended complaint on August 9, 2017. (ECF No. 20.)
The Court now screens Plaintiff’s third amended complaint in the context of this procedural
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history.
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III.
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COMPLAINT ALLEGATIONS
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Plaintiff is currently in the custody of the California Department of Corrections (CDCR) at
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Avenal State Prison. Plaintiff’s third amended complaint concerns claims against defendant
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correctional officials employed by the CDCR at Pleasant Valley State Prison. Plaintiff names the
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following individuals as Defendants: A. Ola, M.D.; R. Wilson, III, M.D.; Toni Clarke, Chief
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Supportive Executive; Donald McElroy, Chief Executive Officer; John Does #1 and #2, medical
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providers.
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Plaintiff alleges as follows: The deliberate indifference of defendants John Does #1 and #2, R.
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Wilson, A. Ola, T. Clarke, and D.B. McElroy to the substantial risk of serious harm to Plaintiff’s
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health or safety, has deprived and continues to deprive Plaintiff of his rights under the Due Process
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Clause of the Fourteenth Amendment to the United States Constitution.
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On January 26, 2011, John Doe #1 issued a problem list CDCR form 7420-A stating that
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Plaintiff received a 115 for hoarding his pain medication (Jan. 16, 2011 medial record, ECF No. 16, at
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p. 35.) Plaintiff never received any notification of these charges, and asserts that they are not true.
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On April 22, 2011, Defendant Wilson issued a medical report (active medication) stating that
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Plaintiff got caught hoarding Neurontin and Tramadol. Defendant Wilson ordered for Plaintiff’s
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medication to be stopped. (Medication Reconciliation – Active Medications as of 4/22/2011, ECF No.
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16, at p. 36.) Plaintiff does not remember getting caught hiding medication, or being punished for
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those charges. Plaintiff never received any notification of said charges.
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On May 6, 2011, Defendant Wilson issued a medical report CDCR form 7230-M Primary Care
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Provider Progress Note and stated that Plaintiff received a 115 write-up for hoarding pain medication
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in his mattress, and that it was a clear violation to the pain agreement signed on January 15, 2011.
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(May 6, 2011 Progress Note, ECF No. 16, at p. 37.)
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On August 31, 2011, John Doe #2 issued a CDCR form 7420-A problem list, and stated that
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Plaintiff received a 115 for hoarding pain medication, Neurontin and Tramadol. (Aug. 31, 2011
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Problem List/Flow Record, ECF No. 16, at p. 38.) Plaintiff never received any notice of said charges.
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On January 24, 2012, Defendant Ola issued a primary care provider note, CDCR form 7230-M,
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and stated that Plaintiff asked for Neurontin and Tramadol, but the problem list shows 115 citation for
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hoarding in April 2011. Plaintiff never received any notice of such write-up 115 RVR.
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CCR, CDCR and Title 15 §§ 3320(a)(1) and 3200(c)(1) and (2) states that:
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A classified copy of the CDC form 115 per section 3313(a) CDC form 115-A
(Rev. 07/88) and any additional supplemental information documented via the CDC form
115-c (Rev. 05/95) containing any elements of the violation charged, shall normally be
provided to the inmate within 15 days from the day the information leading to the charges
is discovered by staff.
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2.
A disciplinary hearing shall not be held until the inmate has been provided with a
classified copy of the CDC form 115 and all non-confidential reports containing
information relative to the charge, including the investigate report at least 24 hours to
review the material and prepare for the hearing.
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Plaintiff never received any write-up 115 RVR, neither was he notified about the charges for
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him to be able to defend his interest to retain his needed pain medication. Plaintiff was not allowed the
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minimum of due process to be heard, protected by the United States Constitution.
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On March 15, 2012, Plaintiff filed a 602 appeal complaining about his serious medical
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condition on his cervical, lower back, and throat. (See CDCR 602, Log. #PVSP-HC-12047992, ECF
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No. 16, at pp. 22-24.) During the process of his appeal, Plaintiff requested some of his medical
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records. While reviewing them, he noticed that some of the copies/medical reports reflected/stated that
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Plaintiff had received a Rules Violation Report (RVR 115) for hoarding medication. (See medical
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records, ECF No. 16, at pp. 35-39.) Plaintiff requested a copy of the RVR, and did not receive a
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response.
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On September 19, 2013, during Plaintiff’s second 602, he notified the California Correctional
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Health Care Services supervisors about Defendant Ola’s inaccurate medical reports. (CDCR 602 Log
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#PVSP-HC-13050088-8, ECF No. 16, at p. 42.) Plaintiff was not notified of any action taken to
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investigate his complaints.
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On May 12, 2014, during the process of Plaintiff’s third 602, he continued notifying the
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California Correctional Health Care Services supervisors about the inaccurate medical reports issued
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by Defendants John Doe #1, Wilson, John Doe #2, and Ola, and he continued requesting the 115 copy.
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(CDCR 602 Log #PVSP-HC-14050671-8, ECF No. 16, at p. 57.) S. Navarro, the health care appeals
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coordinator, rejected Plaintiff’s appeal two times.
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On approximately June 4, 2014, during the process of Plaintiff’s fourth 602, he continued
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notifying the CDCR Health Care Services supervisor about defendants mentioned false
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statements/reports. (CDCR 602 Log #PVSP-HC-1405719, ECF No. 16, at p. 64.) On June 16, 2014, S.
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Navarro canceled Plaintiff’s fourth 602, instead of meeting with him to help him with the problem, or
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sending someone to protect Plaintiff’s 602 process and his rights to be heard.
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On approximately November 5, 2014, during the process of Plaintiff’s fifth 602, he continued
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notifying the CDCR Health Care Services supervisor about the inaccurate/false statements issued and
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filed in Plaintiff’s personal confidential medical file by the defendants. (CDCR 602 Log #PVSP-HC-
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15051172-8, ECF No. 16, at p. 74.).
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On January 28, 2015, the Correctional Health Care Services Administrator Regina Corona
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denied Plaintiff’s fifth 602, based solely on the report of Defendant Ola, who also issued his medical
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report based solely on Defendant Wilson’s reports, which are based on John Doe’s problem lists
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and/or hearsay, as Plaintiff has been notified that there are no further medical reports. Neither are there
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any other 115 RVR, at least Plaintiff never received any citation for the 115 hearing.
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On April 14, 2015, Defendant Toni Clarke, Chief Support Executive of Health Care Services,
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denied Plaintiff’s fifth 602, and no proper procedures were followed to correct defendants’
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inaccurate/false statements solely on the grounds that Plaintiff did not submit a note to let them know
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the problem. (Institutional Response for Second Level HC Appeal, Log #PVSP-HC-15051172, ECF
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No. 16, at pp. 83-85.)
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On April 14, 2015, Defendant D.B. McElroy, Chief Executive Officer of the Health Care
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Services, denied Plaintiff’s fifth 602 appeal after being aware of all the mess, and decided to do
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nothing to correct it. (Id.)
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Defendants Clarke and McElroy are policy makers and had the responsibility and obligation to
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ensure that the institutional medical procedures were properly followed. Both defendants failed to
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instruct, supervise, control, and discipline all named defendants in their performance of their duties to
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refrain from falsifying reports, neglecting to follow proper CDCR policy, failing to conduct lawful
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investigations of Plaintiff’s complaints, otherwise depriving him of his constitutional statutory and
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departmental privileges, rights and immunities. Defendants Clarke and McElroy violated Plaintiff’s
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Eighth Amendment rights by failing to adequately supervise the medical staff subordinate to them.
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From approximately June 2008 to January/April 2011, Plaintiff was prescribed pain medication
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(Tramadol and Neurontin) for his serious medical needs/condition, including pain on his throat, neck
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and lower back. Because of Defendants’ medical reports, he is not allowed to get the medication back.
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Plaintiff seeks a declaratory judgment that his rights were violated, an expungement of his
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medical records and central file, compensatory damages, punitive damages, and any other relief that
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he is entitled to.
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IV.
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DISCUSSION
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Plaintiff alleges a violation of his rights protected by the Due Process Clause of the Fourteenth
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Amendment, because he received no notice or opportunity to defend himself against alleged charges
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for hoarding medication in an alleged 115 RVR. Plaintiff asserts that the allegations that he was
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hoarding medication are false, and the 115 write-up has been used by medical providers as a basis for
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refusing to prescribe him narcotic pain medications, which he contends is necessary to treat his serious
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medical condition.
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As noted above, Plaintiff’s allegations have been previously screened, and he previous pleaded
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that he was prescribed other pain medications. However, his preference is for the narcotic pain
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medications that he alleges he is being denied on the grounds of the false 115 RVR for medication
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hoarding. (See ECF No. 9, at pp. 5-6.) Plaintiff’s allegations that he was denied his preferred treatment
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have been repeatedly found to be insufficient to state a claim for a violation of the Eighth Amendment
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based on deliberate indifference to a serious medical need. (Id.; see also ECF No. 13, at pp. 8-11.)
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Plaintiff’s current third amended complaint raises this issue via a claim asserting a violation of his due
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process rights.
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The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life,
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liberty, or property; and those who seek to invoke its procedural protection must establish that one of
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these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005). To state a
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claim, Plaintiff must first identify the interest at stake. Id. Liberty interests may arise from the Due
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Process Clause or from state law. Id. The Due Process Clause itself does not confer on inmates a
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liberty interest in avoiding more adverse conditions of confinement, id. at 221-22 (citations and
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quotation marks omitted), and state-created liberty interests arise not from the mandatory language in
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prison regulations but from the nature of the condition of confinement, id. at 222-23 (citing Sandin v.
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Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293 (1995)). Such “interests will be generally limited to
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freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to
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give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and
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significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.
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at 483-84 (citations omitted); Wilkinson, 545 U.S. at 221; Brown v. Oregon Dep’t of Corr., 751 F.3d
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983, 987 (9th Cir. 2014); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
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In this case, the protected liberty interests Plaintiff asserts is that he should specifically be
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prescribed the narcotic pain medication he prefers, as opposed to other pain medication that his
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medical providers have prescribed. The Court finds that Plaintiff has not adequately alleged a due
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process violation here. Plaintiff has not alleged a deprivation of a protected liberty or property interest
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other than being denied his preferred medical treatment. However, as Plaintiff is a convicted prisoner,
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his rights to adequate medical care are covered by the Eighth Amendment. See County of Sacramento
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v. Lewis, 523 U.S. 833, 842-43 (1998) (where particular Amendment provides an explicit textual
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source of constitutional protection, claim is properly analyzed under that Amendment, not the more
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generalized notion of substantive due process); see also Adams v. Arab, No. 10-cv-706-MMA (BLM),
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2011 WL 13100736, at *8-9 (S.D. Cal. Oct. 24, 2011) (rejecting state prisoner’s characterization of
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claim for inadequate medical care as violation of his Fifth and Fourteenth Amendment due process
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rights, and instead analyzing claim under Eighth Amendment). As discussed above, the Court has
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repeatedly found that Plaintiff’s allegations that non-opioid medications, in his view, do not work as
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well as opioid medications for his pain, are not sufficient to state any claim for deliberate indifference
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to a serious medical need in violation of the Eighth Amendment. Accordingly, Plaintiff’s claim should
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therefore be dismissed for the failure to state a claim upon which relief may be granted.
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V.
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CONCLUSION AND ORDER
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Plaintiff’s third amended complaint fails to state a cognizable claim for relief. Despite
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guidance from the Court and numerous opportunities to amend, Plaintiff has been unable to plead
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allegations sufficient to state any cognizable claim. The Court is persuaded that Plaintiff is unable to
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allege any additional facts that would support a cognizable claim in this case, and further amendment
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would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may
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not deny leave to amend when amendment would be futile.”) Based on the nature of the deficiencies at
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issue, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122,
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1130 (9th. Cir. 2000); Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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This action is dismissed for Plaintiff’s failure to state a claim upon which relief may be
granted. This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g); and
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The Clerk of Court is directed to enter judgment and close this case.
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IT IS SO ORDERED.
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Dated:
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September 7, 2017
UNITED STATES MAGISTRATE JUDGE
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