(PC) Solano v. Tate et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims signed by Magistrate Judge Stanley A. Boone on 11/29/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/18/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LIBRADO SOLANO, JR.,
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Plaintiff,
v.
DR. HAROLD TATE, et al.,
Defendants.
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Case No.: 1:15-cv-00756-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS
[ECF Nos. 1, 8]
Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction on June 26, 2015. To date,
Defendants have not consented or declined to United State Magistrate Judge jurisdiction.
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On July 29, 2015, the Court found that Plaintiff’s complaint stated a cognizable claim for
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damages against Defendants Drs. Tate and Yin for deliberate indifference to a serious medical need, in
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violation of the Eighth Amendment of the United States Constitution. (ECF No. 8.) The Court
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dismissed Plaintiff’s claim against Drs. Tate and Yin in their official capacity, claim for declaratory
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relief, and claim against Dr. Tate for the treatment he received following his surgery. (Id.) The Court
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indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff had
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consented to Magistrate Judge jurisdiction and no other parties had yet appeared. (Id.)
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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)
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requires the consent of all named plaintiffs and defendants, even those not served with process, before
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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,
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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not
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have jurisdiction to dismiss the claims in its January 25, 2016 order.
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Based upon the foregoing, the undersigned will now recommend to the District Judge that this
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case continue to proceed only on Plaintiff’s cognizable claims, and that the claims described above be
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dismissed, for the reasons explained herein.
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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
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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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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)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,
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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now
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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive
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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow
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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,
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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer
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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely
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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556
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U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
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On June 11, 2013, Plaintiff was transferred to the California Correctional Facility Special
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Housing Unit in Tehachapi. (Compl. 4,1 ECF No. 1.) During the intake examination, Plaintiff
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informed the medical staff that he had a hernia injury on the left side and testicular pain. (Id.)
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Plaintiff was advised that he would need to bring the issues to the attention of medical staff. (Id.)
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On June 13, 2013, Plaintiff told a nurse at the clinic that he had a hernia injury and lump that
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were causing testicular pain and he had been prescribed medication and referred for surgery while
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housed at Folsom State Prison. (Id. at 4-5.) Plaintiff was advised that he would receive pain
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medication that evening. (Id. at 5.) Plaintiff did not receive any pain medication and submitted a
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Health Care Request. (Id.)
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After being informed that he would not receive any pain medication until he was seen by a
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doctor, Plaintiff was seen by Dr. Thomas Bingamon on June 27, 2013. (Id. at 5.) Dr. Bingamon
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informed Plaintiff that his hernia surgery had been approved and that an appointment had to be made
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with the surgeon. (Id.) Plaintiff asked if he could receive a different pain medication because the
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Naprosen was not helping. (Id.) Dr. Bingamon refused to change Plaintiff’s medication and told him
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to “hang in there.” (Id.)
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On June 30, 2013, Plaintiff filed an inmate appeal seeking a change in his pain medication.
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(Id. at 5.) Plaintiff saw the surgeon on July 2, 2013 and was advised that his surgery would take place
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within two months. (Id.)
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On July 9, 2013, Dr. Tate interviewed Plaintiff in regards to his inmate appeal. (Id. at 5.)
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Plaintiff told Dr. Tate that the pain medication was not helping the severe pain from the hernia and
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testicle; and he needed better pain control while he waited for surgery. (Id.) Dr. Tate refused to
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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.
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change the medication and informed Plaintiff that he would be okay. (Id.)
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On October 4, 2013, Plaintiff had still not received surgery and submitted a Health Care
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Request to discover the status of his surgery and complain about the hernia and testicular pain. (Id. at
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5.) Plaintiff saw Dr. Tate on October 21, 2013. (Id.) Dr. Tate threatened to take Plaintiff off his
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Naprosen for abusing pain medications. (Id.) Plaintiff alleges that Dr. Tate refused to allow him to
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discuss his medical condition which was getting worse and causing more pain. (Id.)
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Plaintiff underwent surgery on December 6, 2013 and was discharged that same day. (Id. at 6.)
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On December 14, 2013, Plaintiff had a sneezing attack and the incision site began to swell up and
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cause severe pain. (Id.) Several hours later, Plaintiff was taken to the Medical Clinic and was seen by
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Dr. Allan J. Yin. (Id.) Dr. Yin informed Plaintiff that his sneezing had caused the mesh to come apart
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causing internal bleeding and surgery would be needed. (Id.) Plaintiff asked to be sent to the hospital
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because the pain and swelling was increasing. (Id.) Dr. Yin refused to send Plaintiff to the hospital,
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but prescribed two Ibuprofen for pain and sent Plaintiff back to his cell stating that he would check on
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Plaintiff later. (Id.) Five hours later, Plaintiff woke up soaked in blood from the incision site. (Id.)
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Plaintiff was taken to the hospital by ambulance. (Id.)
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On December 17, 2013, Plaintiff returned from the hospital. (Id. at 6.) The following morning
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Plaintiff was to be seen by Dr. Tate and told correctional officers that he was not able to walk and
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needed a wheelchair. (Id.) The officers told Plaintiff that they would check on a wheelchair, but
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never returned. (Id.) On December 19, 2013, Plaintiff was escorted to the medical clinic for an
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appointment. (Id.) Plaintiff saw Dr. Tate who informed Plaintiff that the only reason the incision
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would have reopened was if Plaintiff cut it open himself. (Id.) Dr. Tate examined the incision and
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told Plaintiff that the appointment was over. (Id.) Plaintiff told Dr. Tate that he was afraid to walk
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back to the housing unit because he had been on bed rest and could fall. (Id.) Dr. Tate told Plaintiff
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that if he fell the correctional officers would pick him up. (Id.) Plaintiff had to walk back to his cell
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“in severe agony and pain.” (Id.)
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Plaintiff brings this action against Drs. Harold Tate and Allan J. Yin, in their individual and
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official capacities, alleging deliberate indifference to his serious medical needs and is seeking
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monetary damages and declaratory judgement.
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III.
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DISCUSSION
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A.
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Plaintiff brings this action against Drs. Tate and Yin in their individual and official capacities.
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Plaintiff may not bring suit against Drs. Tate and Yin in their official capacity. “The Eleventh
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Amendment bars suits for money damages in federal court against a state, its agencies, and state
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officials acting in their official capacities.” Aholelel v. Dept. of Public Safety, 488 F.3d 1144, 1147
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(9th Cir. 2007). Thus, Plaintiff’s cannot proceed with his official capacity claims.
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B.
Official Capacity
Deliberate Indifference
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Plaintiff alleges that Drs. Tate and Yin exhibited deliberate indifference to his serious medical
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needs. While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical
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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to
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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled
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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.
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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). To
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state a claim, Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat
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[his] condition could result in further significant injury or the unnecessary and wanton infliction of
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pain,” and (2) that “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680
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F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act
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or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the
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indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind
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is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d
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at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.
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1.
Dr. Yin
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When Dr. Yin examined Plaintiff he knew that the mesh from the prior surgery had torn away
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and that Plaintiff was bleeding internally. Dr. Yin informed Plaintiff that additional surgery would be
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needed, but refused to send Plaintiff to the hospital. Rather, Dr. Yin sent Plaintiff back to his cell with
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pain medication and did not check on him. Within several hours, Plaintiff awoke covered in blood and
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was rushed by ambulance to the hospital. An allegation by a prisoner that a physician has been merely
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indifferent or negligent or has committed medical malpractice in diagnosing or treating a medical
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condition does not state a constitutional claim. Broughton v. Cutter Laboratories, 622 F.2d 458, 460
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(9th Cir. 1980). However, the allegations in the complaint are not such that the Court could infer mere
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negligence or medical malpractice by Dr. Yin. At the pleading stage, Plaintiff’s allegations are
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sufficient to state a plausible claim that Dr. Yin was aware that Plaintiff had a serious medical need
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and failed to adequately respond. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1018 (9th Cir.
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2010).
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2.
Dr. Tate
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Plaintiff alleges that in July 2013 he informed Dr. Tate that the medication he was receiving
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was not helping his severe pain and Dr. Tate refused to address a change in medication. In October
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2013, Dr. Tate threatened to take Plaintiff’s pain medication away accusing him of abusing pain
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medication without allowing Plaintiff to explain that his pain was getting worse. This is sufficient to
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state a plausible deliberate indifference claim against Dr. Tate.
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However, Plaintiff also alleges that after he had surgery Dr. Tate made him walk back to his
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cell. While Plaintiff states that this caused him to be in severe pain and agony, Plaintiff told Dr. Tate
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that he was afraid to walk back to his cell because he might fall as he had been on bedrest. Plaintiff
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has alleged no facts by which the Court can infer that Dr. Tate was aware that Plaintiff had a serious
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medical need and failed to appropriately respond. Plaintiff fails to state a plausible claim against Dr.
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Tate for the treatment he received following his surgery.
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C.
Declaratory Relief
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Plaintiff seeks a declaratory judgment that his Eighth Amendment 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, 333
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U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful purpose
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in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief
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from the uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d
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1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in
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favor of Plaintiff, that verdict will be a finding that Plaintiff’s constitutional rights were violated.
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Accordingly, a declaration that any Defendant violated Plaintiff’s rights is unnecessary and this action
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shall proceed for monetary damages.
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IV.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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For screening purposes only, this action proceed against Defendants Drs. Yin and Tate
for deliberate indifference as explained above; and
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Plaintiff’s claim against Drs. Tate and Yin in their official capacity, claim for
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declaratory relief, and claim against Dr. Tate for the treatment he received following his surgery be
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dismissed for failure to state a cognizable claim.
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 28 U.S.C. § 636(b)(l). Within fourteen (14) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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November 29, 2017
UNITED STATES MAGISTRATE JUDGE
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