Stevens v. Beard et al

Filing 30

FINDINGS and RECOMMENDATIONS recommending that 23 Defendants' Motion to Dismiss be DENIED in its Entirety re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 5/2/2018. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LYRALISA LAVENA STEVENS,

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Plaintiff,

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v.
JEFFREY BEARD, et al.,

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Defendants.

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Case No.: 1:17-cv-01002-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
REGARDING DEFENDANTS’ MOTION TO
DISMISS THE COMPLAINT
[ECF No. 23]

Plaintiff Lyralisa Lavena Stevens is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion to dismiss, filed January 11, 2018.

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I.

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RELEVANT HISTORY

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This action is proceeding against Defendants Jeffrey Beard, Christopher Podratz, Godwin

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Ugwueze, John Choy, Kim Cornish, Clarence Cryer, Felix Igbinosa, Anthony Enenmoh, Trachelle

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Hurtado, Renee Kanan, Jeffrey Carrick, Scott Kernan, J. Lewis, and R. Coffin for deliberate

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indifference to a serious medical need for failure to provide transgender surgery.

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As previously stated, on January 11, 2018, Defendants filed a motion to dismiss, along with a

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separate request for judicial notice. (ECF Nos. 23, 24.) Plaintiff did not file an opposition and the

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time to do so has expired. Therefore, Defendants’ motion is deemed submitted for review without oral

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argument. Local Rule 230(l).

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II.

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LEGAL STANDARD

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A motion to dismiss, based on res judicata grounds, is properly made under Federal Rule of

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Civil Procedure 12(b)(1). Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759, 763 (9th Cir. 2007).

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However, the court applies California law on claim preclusion to cases brought in federal court under

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42 U.S.C. § 1983. “Congress has specifically required all federal courts to give preclusive effect to

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state-court judgments whenever the courts of the State from which the judgments emerged would do

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so.” Allen v. McCurry, 449 U.S. 90, 96 (1980).

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A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim,

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and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts

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alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th

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Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s review is

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generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998

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(9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of

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Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

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To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

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true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation

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Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court

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must accept the factual allegations as true and draw all reasonable inferences in favor of the non-

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moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los

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Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).

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Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter,
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668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe

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v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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III.

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DISCUSSION
Summary of Plaintiff’s Complaint

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A.

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Plaintiff is a male-to-female transgender inmate who alleges and contends that she was denied

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sex-reassignment surgery in violation of the Eighth Amendment.
Plaintiff has repeatedly received recommendations for sexual reassignment surgery from
California Department of Corrections and Rehabilitation (CDCR) doctors, psychologists, and state

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appointed specialists. In spite of such recommendations, between 2007 and 2016 the Defendants have

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repeatedly created dilatory hormonal therapy programs that provide only hormones without the

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medically necessary surgery.

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Plaintiff contends that her doctors warned Defendants that her brain tumor will return if she
does not receive sex-reassignment surgery.
On October 3, 2016, Defendant Dr. Carrick (Deputy Medical Executive of Utilization

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Management at California Correctional Health Care Services) sent Defendants Podratz, Ugwueze,

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Choy, Cornish, Cryer, Igbinosa, Enenmoh, Hurtado, and Kanan, the Headquarters Utilization

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Management Committee determination letter which denied Plaintiff’s request for sex-reassignment

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surgery because her current treatment for gender dysphoria provided significant relief and were

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adequate to treat her condition.

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B.

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Defendants request the Court take judicial notice of the following records and documents:

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1. Stevens v. Cate, No. 2:12-cv-0239 KJN P (E.D. Cal.), Amended Complaint, April 6, 2012,

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Request for Judicial Notice

ECF No. 10 (Defs.’ Ex. A);
2. In re Lyralisa Lavena Stevens, California Court of Appeals First Appellate District
Division Two, No. A126466, Order, September 21, 2011 (Defs.’ Ex. B);
3. In re Lyralisa Lavena Stevens, Supreme Court of California, No. S196925, Order,
December 14, 2011 (Defs.’ Ex. C);
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4. California Correctional Health Care Services, Inmate Medical Services Policies &

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Procedures Homepage (Defs.’ Ex. D);1

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5. California Correctional Health Care Services, Volume 4, Medical Services, Chapter 26,

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Gender Dysphoria Management Policy (Defs.’ Ex. E);2 and

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6. California Correctional Health Care Services/Division of Health Care Services Care Guide:

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Gender Dysphoria (Defs.’ Ex. F);3

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7. Supplement to California Correctional Health Care Services/Division of Health Care

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Services Care Guide: Gender Dysphoria – Guidelines for Review of Requests for Sex

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Reassignment Surgery (SRS) (May 24, 2016, Version) (Defs.’ Ex. G.)4

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(Req. for Jud. Not., (“RJN”) Exs. A-F; ECF No. 24.)

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Federal Rule of Evidence 201 permits the Court to take judicial notice at any time. A

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judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally

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known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready

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determination by resort to sources who accuracy reasonably cannot be questioned. Fed. R. Evid.

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201(b). Courts may take judicial notice of facts related to the case before it. Amphibious Partners,

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LLC v. Redman, 534 F.3d 1357, 1361-1362 (10th Cir. 2008) (district court was entitled to take

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judicial notice of its memorandum of order and judgment from previous case involving same parties).

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This Court may judicially notice the records and filing of other court proceedings. Tellabs, Inc. v.

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Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802

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n.2 (9th Cir. 2002). This includes documents filed in state courts. Harris v. Cnty. of Orange, 682 F.3d

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1126, 1132 (9th Cir. 2012).

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https://cchcs.ca.gov/policies/

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https:cchcs.ca.gov/wp-content/sites/60/2017/08/IMSPP-v04-ch.26.pdf

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https:cchcs.ca/gov/wp-content/sites/60/2017/08/Gender-Dysphoria-Care-Guide.pdf

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https://cchcs.ca.gov/wp-content/uploads/sites/60/2017/08.Guidelines-for-Review-of-Requests-for-Sex-ReassignmentSurgery-SRS.pdf.

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The Court may take judicial notice of information on a government website when neither party

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disputes either the website’s authenticity or the accuracy of the information displayed. See Daniels-

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Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 999 (9th Cir. 2010 (taking judicial notice of school district’s

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approved vendors publicly displayed on website); see also Paralyzed Veterans of Am. V. McPherson,

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No. C 06-4760 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008 (collecting cases). Here,

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Plaintiff does not contest the authenticity of the cited websites or the accuracy of the information

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presented. Accordingly, Defendants’ request for judicial of Exhibits A through F is granted.

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C.

Motion to Dismiss

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Defendants first argue that because Plaintiff has previously litigated the same claims that she

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brings in this action against these same Defendants in a prior action, she is precluded from bringing

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the claims again in this action.

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1.

Doctrine of Res Judicata

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“The Federal Full Faith and Credit statute, 28 U.S.C. § 1738, requires federal courts to ‘give to

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a state-court judgment the same preclusive effect as would be given that judgment under the law of the

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State in which the judgment was rendered.’” Gonzales v. Cal. Dept. of Corr., 739 F.3d 1226, 1230

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(9th Cir. 2014) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)). “By

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precluding parties from contesting matters that they have had a full and fair opportunity to litigate,”

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the doctrines of claim preclusion and issue preclusion “protect against the expense and vexation

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attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by

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minimizing the possibility of inconsistent decision.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008)

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(internal quotation marks and citation omitted). In determining the claim or issue preclusive effect of

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a state court judgment, the Court looks to the California standard. Brodheim v. Cry, 584 F.3d 1262,

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1268 (9th Cir. 2009); Intri-Plex Techs., Inc., v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).

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The doctrine of res judicata protects “litigants from the burden of relitigating an identical

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issue” and promotes “judicial economy by preventing needless litigation.” Parklane Hosiery Co. v.

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Shore, 439 U.S. 322, 326 (1979). It “bars litigation in a subsequent action of any claims that were

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raised or could have been raised in the prior action.” Owens v. Kaiser Found. Health Plan, Inc., 244

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F.3d 708, 713 (9th Cir. 2001). Stated differently, “[c]laim preclusion, often referred to as res judicata,
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bars any subsequent suit on claims that were raised or could have been raised in a prior action.” Cell

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Therapeutics, Inc., v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009); accord Tahoe Sierra

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Preservation Council, Inc. v. Tahoe Reg. Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003)

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(“Newly articulated claims based on the same nucleus of facts may still be subject to a res judicata

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finding if the claims could have been brought in the earlier action.”). Res judicata applies to section

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1983 actions. Clark v. Yosemite Community College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986).

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Moreover, habeas proceedings can have preclusive effect in subsequent civil rights actions. Silverton

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v. Dep’t of Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981) (holding that state habeas proceedings can

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have issue or claim preclusive effect in subsequent § 1983 actions because the “mere difference in the

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form of relief” sought in the two actions is unimportant); Gonzales v. Cal. Dept. of Corr., 739 F.3d

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1226, 1231 (9th Cir. 2014) (reasoned denials of California habeas petitions have claim preclusive

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effect).

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The court applies the doctrine whenever there is: (1) a final judgment on the merits; (2) identity

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or privity between parties; and (3) an identity of claims. Tahoe-Sierra Preservation, 322 F.3d at 1077.

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These three elements constitute a successful res judicata defense. Id.

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For the reasons explained below, the Court finds that this action and the state habeas action do
not involve the same claims.

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a.

Final Judgment on the Merits

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Defendants submit that Plaintiff previously filed a § 1983 action entitled Stevens v. Cate, Case

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No. 2:12-cv-0239 GEB KJN P, 2013 WL 3772479 (E.D. Cal. July 16, 2013), in which she argued that

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the defendants violated her Eighth Amendment rights by failing to provide her with necessary medical

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care-namely, sex-reassignment surgery. (Defs.’ Req. Jud. Ntc., Ex. A.) The court dismissed the

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action as barred by the doctrine of res judicata because Plaintiff had previously filed a state habeas

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action that was denied in, In re Lyralisa Lavena Stevens, Case No. A126466 (California Supreme

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Court, Fifth Appellate District, September 21, 2011), and Case No. S196925 (California Supreme

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Court, December 14, 2011), in which Plaintiff also sought sex-reassignment surgery. Stevens v. Cate,

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2013 WL 3772479, at *4-7 (aff’d in Stevens v. Singh, 592 F. App’x 588, 589 (9th Cir. 2015); Defs.’

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Req. Jud. Ntc., Exs. B-C.) The state court decisions are considered a final judgment on the merits.

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The Court next turns to identity of claims to see whether res judicata applies.

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b.

Identity of Claims

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Courts “apply four criteria to decide whether there is an identity of claims: ‘(1) whether rights

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or interests established in the prior judgment would be destroyed or impaired by prosecution of the

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second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether

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the two suits involve infringement of the same right; and (4) whether the two suits arise out of the

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same transactional nucleus of facts.’” Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir.

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2012) (quoting United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th

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Cir. 2011)). “The fourth criterion is the most important,” id. (citing Liquidators of European Fed.

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Credit Bank, 630 at 1151), and “[w]hether two suits arise out of the same transactional nucleus

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depends upon whether they are related to the same set of facts and whether they could conveniently be

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tried together,” Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 918 (9th Cir.

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2012) (citing ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010))

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(internal quotation marks omitted). In most cases, “the inquiry into the ‘same transactional nucleus of

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facts’ is essentially the same as whether the claim could have been brought in the first action.”

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Liquidators of European Fed. Credit Bank, 630 F.3d at 1151. A plaintiff need not bring every possible

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claim, but where claims arise from the same factual circumstances, the plaintiff must bring all related

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claims together or forfeit the opportunity to bring any omitted claim in a subsequent proceeding. Id.

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(quotation marks omitted).

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Defendants submit that Plaintiff is attempting to bring the same claim again, involving the

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same primary right in contending that Defendants violated her constitutional right to medical care by

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not providing her sex-reassignment surgery. The Court does not agree.

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“The critical focus of primary rights analysis is the harm suffered.” Brodheim, 584 F.3d at

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1268. Plaintiff’s state habeas petition did not, and could not, allege harm occurring after it was filed.

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This federal action is distinct because Plaintiff’s harm occurred in 2016 “were caused at different

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times, by different acts, and by potentially different actors.” Id. at 1268-1269. Indeed, the prior civil

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rights action filed in this Court entitled Stevens v. Cate, Case No. 2:12-cv-0239 GEB KJN P, the Court
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found that there was identity of the claims because Plaintiff attached a copy of the state habeas petition

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to his civil rights complaint. Stevens, 2013 WL 3772479, at *4. Here, Plaintiff has attached a copy of

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the October 3, 2016 denial of SRS by the Headquarters Utilization Management Committee (HUMC)

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and Sex Reassignment Surgery Review Committee (SRSRC). (Compl. at 9.) Therefore, this action

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involves the 2016 decision and is not the same claim as that presented in the state court petition. In the

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state court petition the issue involved prior decisions in 2008 and 2010 in which Plaintiff was denied

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SRS. Because the Court finds that the decisions did not involve the same claim, the Court need not

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and will not determine whether there was identity and/or privity between the parties.
2.

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Factual Linkage of Defendants’ Alleged Misconduct

Next, Defendants argue that Plaintiff named them in this action without alleging any facts

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linking their conduct to any alleged wrongdoing. Based on a review of the allegations in the

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complaint and attached exhibit it is reasonable to infer that each Defendant played some role in the

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decision to deny Plaintiff’s surgery. Indeed, in his opposition, Plaintiff submits a description of each

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Defendants involvement in the decision to deny him surgery (Pl.’s Opp’n at 3-8),5 and Defendants did

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not address this argument in their reply. Accordingly, the Court finds that, at the pleading stage,

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Plaintiff has sufficiently linked each Defendant to an affirmative act or omission giving rise to his

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claim for deliberate indifference.

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3.

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Defendants further argue that even if Plaintiff named the proper Defendants, her Eighth

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Failure to State a Cognizable Claim for Relief

Amendment claim fails because it alleges only a mere disagreement with the course of treatment.
The Eighth Amendment of the United States Constitution entitles Plaintiff to medical care and

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is violated when a prison official acts with deliberate indifference to an inmate’s serious medical

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needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds,

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Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122

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(9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious

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References herein to page numbers are to the Court’s ECF pagination headers.

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medical need by demonstrating that failure to treat [his] condition could result in further significant

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injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the

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need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096).

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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or

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possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails

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more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122.

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“A difference of opinion between a physician and the prisoner - or between medical

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professionals - concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)),

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overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014);

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Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances and that the defendants chose this course in conscious

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disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332)

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(internal quotation marks omitted).

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An inmate’s gender dysphoria can constitute a serious medical need in which prison officials

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may not be deliberately indifferent without violating the Eighth Amendment. Rosati v. Igbinoso, 791

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F.3d 1037, 1039-40 (9th Cir. 2015); see also Norsworthy v. Beard, 87 F.Supp.3d 1164, 1187 (N.D.

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Cal. 2015).

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Based on Plaintiff’s allegations in the complaint, the Court finds that Plaintiff has plausibly

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alleged more than a mere disagreement with the course of treatment. Plaintiff’s allegations

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demonstrate that several medical experts have recommended SRS, yet in 2016 Defendants denied her

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SRS in conscious disregard of an excessive risk to her health despite the severity of her symptoms and

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psychological well-being. (Compl. at 5.) Further, Plaintiff correctly submits that Title 15 of the

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California Code of Regulations section 3350.1 provides vaginoplasty to cisgender female but not to

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transfer females, such as Plaintiff. (Id.)
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In his opposition, Plaintiff makes several arguments relating to the denial of certain property

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and discrimination against transgender women in violation of the Fourteenth Amendment; however, in

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the operative screening order the Court found that Plaintiff stated a cognizable claim for only the

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denial of transgender surgery in violation of the Eighth Amendment. (ECF No. 10.) Plaintiff did not

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challenge the Court’s screening order and the screening order controls. Plaintiff cannot expand or add

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new claims outside the scope of his complaint in an opposition filed in response to a motion to

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dismiss. Rather, at this juncture, Plaintiff must seek leave to amend the complaint in accordance with

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Rule 15(a) of the Federal Rules of Civil Procedure and Local Rule 137(c).
4.

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Injunctive Relief Claim Barred Under as Plata Class Member

Defendants contend that Plaintiff’s claims of deliberate indifference and request for injunctive

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relief are barred because she is a class member in Plata v. Schwarzenegger, No. C-01-1351 TECH

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(N.D. Cal., filed May 14, 1990); Plata Stipulation ¶ 8; RJN Ex. H; see also Brown v. Plata, 563 U.S.

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493, 507 (2011)). The Court does not find that Plaintiff’s claim to be barred by Plata.
The Ninth Circuit has held that “[i]ndividual claims for injunctive relief related to medical

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treatment are discrete from the claims for systemic reform addressed in Plata.” Pride v. Correa, 719

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F.3d 1130, 1137 (9th Cir. 2013) (“[W]here a California prisoner brings an independent claim for

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injunctive relief solely on his own behalf for specific medical treatment denied to him, Plata does not

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bar the prisoner’s claim for injunctive relief.”). The Court in Correa noted that precluding a prisoner

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from proceeding on a claim for injunctive relief for individual medical care would lead to unwarranted

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delay. Id.
In this instance, Defendants fail to demonstrate that Plaintiff’s claim for denial of SRS is

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duplicative of the relief sought in Plata. There is simply no evidence that Plaintiff’s claim falls within

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the scope of the litigation in Plata. In fact, if Defendants’ argument is accepted, California inmates

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would be prohibited from presenting an Eighth Amendment medical claims seeking equitable relief

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until the Plata class action was fully resolved. Such ruling would cause undue delay as noted in

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Correa. Accordingly, Defendants’ argument that Plaintiff’s Eighth Amendment claim is barred by

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Plata is rejected.

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5.

Qualified Immunity

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Lastly, Defendants argue that they are entitled to qualified immunity. Defendants specifically

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argue that they are entitled to qualified immunity because the exhibits attached to Plaintiff’s complaint

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show that the Headquarters Utilization Management Committee and the Sex Reassignment Surgery

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Review Committee considered Plaintiff’s request for sex-reassignment surgery and determined that

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Plaintiff’s current treatments for gender dysphoria provided significant relief that was adequate and

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sufficient for her condition.

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Qualified immunity is “immunity from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mueller v.

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Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citation and internal quotations omitted). Qualified

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immunity shields government officials from civil damages unless their conduct violates “clearly

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established statutory or constitutional rights of which a reasonable person would have known.”

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important

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interests - the need to hold public officials accountable when they exercise power irresponsibly and the

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need to shield officials from harassment, distraction, and liability when they perform their duties

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reasonably,” Pearson v. Callahan, 555 U.S. 223, 231 (2009), and it protects “all but the plainly

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incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986).

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In resolving the claim of qualified immunity, the Court must determine whether, taken in the

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light most favorable to Plaintiff, Defendant’s conduct violated a constitutional right, and if so, whether

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the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001); Mueller, 576 F.3d at 993.

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While often beneficial to address in that order, the Court has discretion to address the two-step inquiry

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in the order it deems most suitable under the circumstances. Pearson, 555 U.S. at 236 (overruling

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holding in Saucier that the two-step inquiry must be conducted in that order, and the second step is

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reached only if the court first finds a constitutional violation); Mueller, 576 F.3d at 993-94.

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As set forth above, Plaintiff alleges a cognizable claim for deliberate indifference against

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Defendants for denial of SRS. Defendants argue that they acted reasonably by basing their decision

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on legitimate medical opinions. This argument is premature at this stage of the proceedings.

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Accepting Plaintiff’s allegations as true, as this Court must, no reasonable medical professional would
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have believed that denying Plaintiff SRS in conscious disregard of an excessive risk to her health

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despite previous medical recommendations and physical well-being would be permissible under the

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Eighth Amendment. Whether the evidence will support Plaintiff’s assertions is a question that cannot

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be resolved at this juncture. Although qualified immunity from suit should be resolved at the earliest

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stage possible, the Supreme Court has recognized that resolving qualified immunity based solely on

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the pleadings without the benefit of factual development of the record may be difficult. Pearson v.

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Callahan, 555 U.S. 223, 238-39 (2009); see also Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999)

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(further factual development outside the complaint may be necessary to establish affirmative defense

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of qualified immunity); Moss v. U.S. Secret Service, 572 F.3d 962, 974-75 (9th Cir. 2009) (where

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extra-record evidence is proffered or required to determine the facts at hand, qualified immunity must

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be asserted in a summary judgment motion). Accordingly, Defendants have not demonstrated that

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they are entitled to qualified immunity.

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IV.

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RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion to dismiss

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be denied in its entirety.

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This Findings and Recommendation 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 thirty (30) days after

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being served with this Findings and Recommendation, the parties may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(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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May 2, 2018
UNITED STATES MAGISTRATE JUDGE

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