Cramer v. Horowitz et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/21/15 RECOMMENDING that defendants motion to dismiss (ECF No. 24 ) be granted as to plaintiffs damages claim against defendant in her official capacity and denied in all other respects. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LORENZO CRAMER,
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Plaintiff,
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No. 2:14-cv-1472-TLN-EFB P
v.
FINDINGS AND RECOMMENDATIONS
EVALYN HOROWITZ,
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Defendant.
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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.
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§ 1983, alleges an Eighth Amendment claim of deliberate indifference to medical needs against
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defendant Horowitz, his primary care physician. See ECF No. 1 (alleging she dismissed repeated
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complaints of pain, reduced and ultimately stopped pain medication based upon “sparse”
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information that plaintiff was selling it, and that she really just wanted to limit all inmates to the
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“basic pain meds”). Horowitz moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
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Civil Procedure. ECF No. 24. For the reasons that follow, it is recommended that the motion be
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granted in part.
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The Complaint1
I.
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In June of 2013, plaintiff and another inmate got into a fight, which resulted in an injury to
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plaintiff’s neck and shoulder. ECF No. 1 at 3. Before the fight, plaintiff had endured some
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measure of pain in his shoulder and arm because of a prior gunshot injury, which caused his hand
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to “claw.” Id. at 4, 6. Plaintiff initially dismissed the increased level of pain as stiffness and
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soreness resulting from the fight, but over the next few weeks, the pain increased. Id. at 4. As a
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result, plaintiff requested medical attention. Id. at 3.
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Plaintiff was seen by a medical technical assistant (“MTA”) on July 22, 2013. Id. at 4.
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The MTA referred plaintiff to defendant Horowitz, who was plaintiff’s primary care physician
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from 2012 to late 2013. Id. at 4-5. According to plaintiff, defendant, who knew about plaintiff’s
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pre-existing shoulder injury, initially ignored this referral. Id. at 4. Plaintiff alleges that it was
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only after several weeks had passed and plaintiff filed an administrative appeal that defendant
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finally saw plaintiff for his complaints of pain. Id. Plaintiff further alleges that with nothing
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more than a “visual observation,” defendant told plaintiff to “stop being a crybaby” and that she
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would “not order any treatment concerning the injury to [plaintiff’s] neck and shoulder.” Id.
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On an unspecified date, after plaintiff complained that he “was in a lot of pain” and that
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his current medication was not helping, defendant lowered plaintiff’s dosage and then stopped the
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medication altogether. Id. at 5. About a year before doing so, plaintiff had been accused of
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“cheeking” his medication and then selling it. Id. at 6. When inmates are caught “cheeking” their
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medications they are subject to disciplinary action and testing to determine whether they are
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taking their medications as directed. Id. Plaintiff tested positive for the correct dosage of his
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medication and was never disciplined. Id. Nevertheless, defendant discontinued plaintiff’s
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medication based upon the mere allegation of “cheeking.” Id. Defendant also “made it clear”
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that she intended to cut everyone’s medications to “just the basic pain meds.” Id.
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This case proceeds on plaintiff’s original complaint, which plaintiff signed under penalty
of perjury on May 26, 2014. ECF No. 1 at 8. The following statement of facts is based entirely
upon the allegations in plaintiff’s complaint.
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After his medication was discontinued, plaintiff had access to “[M]otrin” and “other non-
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habit forming medications” for his pain. Id. Defendant continued to ignore plaintiff’s requests
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for pain management and treatment. Id. As of November 2013, plaintiff had a new primary care
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physician. Id. at 5.
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Plaintiff sues defendant in her individual capacity and in her official capacity. Id. at 7.
He seeks unspecified compensatory and punitive damages. Id. at 3.
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II.
Standards
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A. Rule 12(b)(6)
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To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
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complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6)
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standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims
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that would entitle him to relief “has been questioned, criticized, and explained away long
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enough,” and that having “earned its retirement,” it “is best forgotten as an incomplete, negative
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gloss on an accepted pleading standard”). Thus, the grounds must amount to “more than labels
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and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 1965.
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Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative
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level on the assumption that all the allegations in the complaint are true (even if doubtful in
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fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable
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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
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The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v.
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Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most
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favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v.
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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include
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specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
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(1992).
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The court may disregard allegations contradicted by the complaint’s attached exhibits.
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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing,
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Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as
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true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266
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F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir.
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1987)). The court may consider matters of public record, including pleadings, orders, and other
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papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir.
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1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104
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(1991). “[T]he court is not required to accept legal conclusions cast in the form of factual
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allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.
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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept
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unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.
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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
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Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its
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defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before
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dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson,
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809 F.2d 1446, 1448 (9th Cir. 1987).
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B. Eighth Amendment Deliberate Indifference
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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a
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plaintiff must establish that he had a serious medical need and that the defendant’s response to
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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see
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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to
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treat the condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,
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delay, or intentional interference with medical treatment, or by the way in which medical care is
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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
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To act with deliberate indifference, a prison official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if
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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing
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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate
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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,
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884 F.2d 1312, 1314 (9th Cir. 1989) (per curiam). A failure to competently treat a serious
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medical condition, even if some treatment is prescribed, may constitute deliberate indifference in
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a particular case. Id.
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It is important to differentiate common law negligence claims of malpractice from claims
predicated on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment.
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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
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1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi, 391 F.3d at 1057.
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III.
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Analysis
Defendant argues that dismissal is warranted here because: (1) plaintiff’s allegations
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amount to a difference in opinion regarding the treatment he received; (2) defendant is entitled to
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qualified immunity; and (3) defendant is entitled to immunity in her official capacity. As
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discussed below, the court finds that plaintiff’s factual allegations assert more than a mere
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difference in opinion and state a proper claim for relief under the Eighth Amendment. In
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addition, the court finds that defendant is not entitled to qualified immunity. Plaintiff’s claims for
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damages against defendant in her official capacity, however, are barred by the Eleventh
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Amendment.
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Defendant argues that plaintiff “does not identify [a] serious medical need.” She further
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argues that her suspicion of “felony distribution” provided a reasonable basis for her actions and
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therefore she did not act with conscious disregard to plaintiff’s medical needs. ECF No. 24-1 at
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5-7. She also claims that plaintiff’s allegation that she “ignored” his requests for pain treatment is
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undercut by his admission that he had access to “non-habit forming” pain medication. Id. at 6.
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Defendant argues that plaintiff’s allegations suggest, at most, that he disagrees with defendant’s
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actions “because she did not prescribe him the type or dose of pain medication that he desired.”
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Id. at 5.
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According to the complaint, plaintiff experienced “serious pain” in his shoulder, neck, arm
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and hand as a result of a prior gunshot injury and a prison fight. ECF No. 1 at 3, 5, 7. The pain
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medication he was given did little to alleviate that pain. Id. at 5. After this unspecified pain
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medication was discontinued, plaintiff was limited to only “[M]otrin” and “other non-habit
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forming medications.” Id. at 6. Plaintiff’s pain persisted. Id. Contrary to defendant’s argument,
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the complaint identifies an objectively serious medical need.
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The complaint also alleges more than a disagreement with the type or dose of pain
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medication that plaintiff received. The complaint alleges that defendant, despite knowing that
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plaintiff needed pain management, was initially not willing to provide any. If plaintiff allegations
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are taken as true, as they must be on this motion, defendant initially responded to plaintiff’s
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complaints of pain by calling plaintiff a “crybaby,” telling him that she would not provide him
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with any treatment, and ordering him removed from her office. Id. at 4. At some point plaintiff
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received pain medication for his injury which did not alleviate the pain. Defendant then
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discontinued it—not according to her medical judgment, but to further an agenda of limiting all
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inmates to only basic pain medications, and ostensibly because of an old and unsubstantiated
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allegation that plaintiff had “cheeked” his medication.
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Not surprisingly, defendant disputes several of these allegations and argues she was not
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deliberately indifferent because she reasonably suspected plaintiff of “cheeking” his medications.
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But the court cannot make that determination at this stage of the proceedings. On this motion, the
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court must assume plaintiff’s allegations to be true. Liberally construed, the complaint alleges
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that defendant’s suspicion was not reasonable, but rather a pretext for discontinuing plaintiff’s
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medication in an effort to limit all inmates to basic pain medications. Moreover, the fact that
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plaintiff could access basic pain medications does not undermine plaintiff’s allegations that
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defendant ignored plaintiff’s requests for an effective pain management plan. Contrary to
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defendant’s argument, the complaint states an Eighth Amendment deliberate indifference claim
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against her.
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According to defendant, an exhibit attached to plaintiff’s opposition demonstrates that
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plaintiff cannot state a claim against her. See ECF No. 28 at 3-4 (referring to defendant’s own
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progress notes, attached as an exhibit to plaintiff’s opposition). However, plaintiff’s attachment
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of a document as an exhibit to his opposition does not mean that plaintiff has adopted as true all
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of the statements in the document. See Franklin v. Dudley, No. CIV S-07-2259 FCD EFB P,
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2009 U.S. Dist. LEXIS 86618, at *7-8 (E.D. Cal. Sept. 22, 2009). Defendant may, at a later stage
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of the litigation, choose to test the sufficiency of plaintiff’s evidence to prove his allegations. But
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the instant motion is brought under Rule 12(b)(6), which is not the procedure for disputing facts
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alleged in the complaint. Rather, at this stage in the proceedings, the court must take the factual
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allegations of the complaint as true and construe them in a light most favorable to the nonmoving
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party. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). As discussed
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supra, the facts alleged in the complaint are sufficient to state a claim upon which relief may be
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granted.
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Defendant also seeks dismissal base on qualified immunity. “The doctrine of qualified
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immunity protects government officials ‘from liability for civil damages insofar as their conduct
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does not violate clearly established statutory or constitutional rights of which a reasonable person
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would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
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Fitzgerald, 457 U.S. 800, 818 (1982)). Resolving the defense of qualified immunity involves a
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two-step process; the court must determine (1) whether the plaintiff has alleged or shown a
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violation of a constitutional right, and (2) whether the right at issue was clearly established at the
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time of defendant’s alleged misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533
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U.S. 194, 201-02 (2001)). “Qualified immunity is applicable unless the official’s conduct
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violated a clearly established constitutional right.” Pearson, 555 U.S. at 232. To be clearly
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established, “[t]he contours of the right must be sufficiently clear that a reasonable official would
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understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
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(1987).
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Defendant argues she is entitled to qualified immunity because (1) she “reasonably
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believed that her conduct –gradually lowering the dosage for [plaintiff]’s pain medication and
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then limiting him to Motrin and other medication – was lawful,” and (2) plaintiff “admits” that
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defendant discontinued the medication because she suspected plaintiff of selling it. ECF No. 24-1
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at 8. These arguments rely upon a selective reading of plaintiff’s complaint. The complaint
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alleges that initially, defendant knowingly ignored plaintiff’s complaints of pain and refused to
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provide any treatment. When plaintiff later complained that the pain medication he received was
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ineffective, defendant allegedly responded by reducing the medication and then discontinuing it
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altogether. Contrary to defendant’s assertion, plaintiff has not admitted that defendant’s conduct
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was genuinely motivated by a suspicion that he was selling his medication. After noting that
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defendant “cut” plaintiff’s medication “on the sparse documented allegation of cheeking,” the
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complaint alleges that defendant “made it clear . . . she intended to cut everyones [sic]
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medications to just the basic pain meds” and that she had “several complaints levied against her
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for cutting or discontinuing medications needed by prisoners for sever[e] pain issues.” ECF No. 1
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at 6. As noted, the complaint suggests that defendant actually discontinued plaintiff’s medication
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in an effort to limit all inmates to basic pain medications. That defendant disputes these
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allegations does not entitle her to dismissal under Rule 12(b)(6). Whether evidence will support
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plaintiff’s assertions or defendant’s is a question for later proceedings. On this motion, the court
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must take as true plaintiff’s allegations, which are sufficient to allege a violation of a clearly
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established constitutional right.
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Lastly, defendant argues she is entitled to Eleventh Amendment immunity from plaintiff’s
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monetary damages claim brought against her in her official capacity. Claims for damages against
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the state, its agencies or its officers for actions performed in their official capacities are barred
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under the Eleventh Amendment, unless the state waives its immunity. Kentucky v. Graham, 473
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U.S. 159, 169 (1985); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)
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(neither a state nor its officials acting in their official capacities are persons under § 1983).
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Section 1983 does not abrogate the states’ Eleventh Amendment immunity from suit. See Quern
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v. Jordan, 440 U.S. 332, 344-45 (1979). See also Hafer v. Melo, 502 U.S. 21, 30 (1991)
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(clarifying that Eleventh Amendment does not bar suits against state officials sued in their
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individual capacities, nor does it bar suits for prospective injunctive relief against state officials
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sued in their official capacities). Accordingly, plaintiff’s claims for damages against the
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defendant in her official capacity are barred by the Eleventh Amendment and must be dismissed.
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IV.
Recommendation
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For the reasons stated above, IT IS RECOMMENDED that defendant’s motion to dismiss
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(ECF No. 24) be granted as to plaintiff’s damages claim against defendant in her official capacity
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and denied in all other respects.
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These findings and recommendations are 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 days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 21, 2015.
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