Hughes v. CDCR

Filing 112

ORDER signed by District Judge Kimberly J. Mueller on 3/28/2017; Except as modified by this order 110 Findings and Recommendations are ADOPTED in FULL; GRANTING 61 Motion to Dismiss as to defendant Jansen; DENYING 103 Motion to Amend the Compl aint. Plaintiff is granted one final opportunity to file an amended complaint that cures the deficiencies identified in the magistrate judge's findings and recommendations with respect to the claims against CDCR and Dr. Doe within thirty days from the date of this order. (Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARD HUGHES, 12 13 No. 2:11-cv-1856-KJM-EFB P Plaintiff, v. ORDER 14 MARTIN H. JANSEN, M.D., 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding through counsel in an action brought under 42 18 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 17, 2017, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 27 the file, with the exception discussed below the court finds the findings and recommendations to 28 be supported by the record and by the proper analysis. 1 1 At page five, the findings and recommendations contain the following statement: 2 Although plaintiff believes that he should be taking Wellbutrin instead of Strattera because Strattera allegedly does not treat depression and causes his mental health to deteriorate [internal citations omitted], mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. [Citations omitted.] 3 4 5 6 ECF No. 110 at 5. The court does not agree that plaintiff’s allegations in this regard reflect only a 7 difference of opinion concerning the appropriate treatment for his depression. Plaintiff alleges 8 that “Wellbutrin is an antidepressant used to treat MDD [Major Depressive Disorder]” and that 9 “Strattera (atomoxetine) is a norephinephrine reuptake inhibitor used to treat Attention Deficit 10 Hyperactivity Disorder; it is not used to treat MDD.” ECF No. 60 ¶¶ 13, 14. Deliberate 11 indifference is shown if physicians choose a “course of treatment” that is “medically unacceptable 12 under the circumstances” and the course of treatment was chosen “in conscious disregard of an 13 excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) 14 (citing, inter alia, Farmer v. Brennan, 511 U.S. 825, --- - ---, 114 S.Ct. 1970, 1978-79 (1994)). 15 Plaintiff’s allegations, taken together, are that he suffered from MDD, that he was successfully 16 treated for MDD with a drug used to treat MDD (Wellbutrin) but then taken off that medication 17 and prescribed a medication not used to treat MDD (Strattera). One reasonable inference from 18 plaintiff’s allegations is that he was left effectively untreated for MDD for an extended period of 19 time, leading to a nearly fatal suicide attempt. These allegations represent more than a mere 20 difference of opinion about an appropriate course of treatment. 21 That said, the court agrees with the magistrate judge that defendant Jansen’s involvement 22 in the events complained of was limited to one encounter, and that the allegations about that 23 encounter are insufficient to support a claim that defendant Jansen acted with deliberate 24 indifference to plaintiff’s serious medical needs. 25 ///// 26 ///// 27 ///// 28 ///// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Except as modified by this order, the findings and recommendations filed February 17, 3 4 5 2017, are adopted in full; 2. Defendant Jansen’s Rule 12(b)(6) motion to dismiss (ECF No. 61) is granted and defendant Jansen is dismissed from this action with prejudice; 6 3. Plaintiff’s motion to amend (ECF No. 103) is denied as futile; and 7 4. Plaintiff is granted one final opportunity to file an amended complaint that cures the 8 deficiencies identified in the magistrate judge’s findings and recommendations with respect to the 9 claims against CDCR and Dr. Doe within thirty days from the date of this order. 10 DATED: March 28, 2017 11 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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