Hicks v. Arya

Filing 60

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 05/16/18 RECOMMENDING that Defendant Aryas summary judgment motion 46 on the grounds that plaintiff failed to exhaust administrative remedies as to his claims regarding h epatitis C and Celebrex be granted; defendant Aryas summary judgment motion on the grounds that plaintiff failed to exhaust administrative remedies as to his claim regarding cervical traction be denied; defendants summary judgment motion as to the me rits of plaintiffs claim regarding cervical transfer be denied without prejudice to renewal at a later stage of these proceedings. Plaintiffs motion to file a second amended complaint 47 be granted in part and denied in part. Plaintiffs motion to f ile a second amended complaint raising new claims regarding treatment for hepatitis C and denial of adequate pain medication be denied. Plaintiffs motion to file a second amended complaint be granted as to his claims alleging that defendants Arya, Bo denheimer, Hopkins and Felder denied his request to be transferred in order to receive cervical traction. In the alternative, plaintiffs claims that defendants Bodenheimer, Sahota, Knipp and Hopkins denied plaintiff adequate pain medication, containe d in the proposed second amended complaint, be dismissed for failing to state potentially colorable claims for relief. Motions 46 and 47 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M) Modified on 5/17/2018 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. HICKS,

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Plaintiff,

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No. 2: 16-cv-2465 TLN KJN P

v.

FINDINGS AND RECOMMENDATIONS

AFSHIN ARYA et al.,

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Defendants.

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I. Introduction

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is defendant Arya’s motion for summary judgment

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(ECF No. 46) and plaintiff’s motion to file a second amended complaint (ECF No. 47). For the

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reasons stated herein, the undersigned recommends that both motions be granted in part and

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denied in part.

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II. Background

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A. Original Complaint

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Pursuant to the mailbox rule, on October 11, 2016, plaintiff filed the original complaint

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naming only Dr. Arya as a defendant.1 (ECF No. 1.) Plaintiff alleged that defendant Arya failed
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The original complaint does not contain a proof of service. For purposes of the pending
motions, pursuant to the mailbox rule, the undersigned presumes plaintiff mailed his complaint on
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to provide him with adequate medical treatment for cervical spondylosis and hepatitis C.
Plaintiff alleged that on September 16, 2014, Ron Brown, a contract physical therapist at

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California State Prison-Sacramento (“CSP-Sac”), recommended that plaintiff be transferred to

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another prison in order to receive cervical traction three times a week due to Brown’s limited

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scheduling availability. (Id. at 6.)

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In December 2014, plaintiff was transferred to the California Medical Facility (“CMF”).

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(Id.) Plaintiff was housed at CMF from December 2014 through January 2016, where he received

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cervical traction and heat pad therapy twice a week “with marked improvement in pain relief, grip

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strength in his left hand and increased range of motion in his neck and shoulder.” (Id. at 6-7.)

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In January 2016, plaintiff’s cervical traction was discontinued when he was transferred to two

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different prisons. (Id. at 7.) In February 2016, plaintiff was evaluated by an outside sports/pain

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physician who recommended cervical traction, electrodiagnostic nerve testing, trigger point

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injections and an increase in gabapentin. (Id.)

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In June 2016, plaintiff was evaluated by an outside neurosurgeon who recommended
continued cervical traction over surgery. (Id.)
In June 2016, an electromyogram and nerve conduction study revealed paraspinal muscle

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nerve root damage. (Id.) In June 2016, an ultrasound of plaintiff’s liver revealed that he had

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Stage III liver disease. Plaintiff alleged that he was not informed of the results of the ultrasound

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until September 2016. (Id.)

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On September 27, 2016, defendant Dr. Arya saw plaintiff for a chronic care appointment.

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(Id. at 8.) At that time, plaintiff was housed at California State Prison-Sacramento (“CSP-Sac”).

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Plaintiff told defendant Arya about his cervical spondylosis history. (Id.) Plaintiff told defendant

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Arya that the pain medication he took was ineffective and that he suffered from pain, and loss of

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sleep and grip strength. (Id.) Defendant Arya told plaintiff that he would prescribe Celebrex, an

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NSAID. (Id.) Plaintiff told defendant Arya that he had taken Celebrex in the past, but it was

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ineffective, and that plaintiff had hepatitis C. (Id.) Defendant Arya prescribed Celebrex anyway

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the date it was signed, i.e., October 11, 2016.
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and ordered physical therapy. (Id.)

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Plaintiff told defendant Arya that physical therapy at that prison was for acute care only,

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and that the physical therapist would recommend his transfer to another prison capable of

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providing more scheduled, routine cervical traction. (Id.) Plaintiff asked to be medically

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transferred to an institution capable of providing traction two or three times per week. (Id. at 9.)

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Defendant Arya told plaintiff that due to his custodial housing in the psychiatric services unit

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(“PSU”), a medical transfer was not available. (Id.) Plaintiff told defendant Arya that he was

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allowing custody to intentionally interfere with his medical treatment for reasons unrelated to his

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medical needs. (Id.)

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Defendant Arya told plaintiff that he had Stage III liver disease. (Id.) Defendant Arya
told plaintiff that his condition was serious, but he refused to order hepatitis drug treatment. (Id.)

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B. First Amended Complaint

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Pursuant to the mailbox rule, plaintiff filed his first amended complaint on June 12, 2017.

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(ECF No. 26.) The amended complaint named as defendants Dr. Arya, CSP-Sac Chief Executive

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Officer Felder, and California Correctional Health Care Facilities Deputy Director Lewis. (Id. at

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5.)

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The first amended complaint included the same allegations against defendant Arya as

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were made in the original complaint. (See id. at 11-15.) Plaintiff additionally claimed that he told

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defendant Arya that CSP-Sac lacked the equipment necessary for cervical traction. (Id. at 14.)

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With respect to defendants Felder and Lewis, plaintiff alleged that these defendants

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improperly denied his grievances seeking treatment for hepatitis C. Plaintiff alleged that on

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December 9, 2016, defendant Felder denied his grievance. (Id. at 16-17.) Plaintiff alleged that on

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March 17, 2017, defendant Lewis denied his grievance. (Id. at 17-18.)

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Plaintiff alleged that his hepatitis C treatment finally began on May 22, 2017,
approximately 11 months after he was found to have Stage III liver disease. (Id. at 26.)

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C. Prior Court Orders Addressing Motion to Amend

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Defendant Arya opposed plaintiff’s motion to file the first amended complaint on the

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grounds that plaintiff failed to administratively exhaust the claims against defendant Arya made
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in the original complaint. (ECF No. 30). Thus, defendant argued that the motion to amend was

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futile. (Id.)

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On August 23, 2017, the undersigned recommended that plaintiff’s motion to amend be

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granted. (ECF No. 38.) The undersigned rejected defendant’s argument that amendment was

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futile because of non-exhaustion. (Id. at 6.) The undersigned found that the issue of exhaustion

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of administrative remedies is not appropriately raised, or considered, by the court in an opposition

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to a motion to amend. See Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (dismissal of

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a prisoner civil rights action for failure to exhaust administrative remedies must generally be

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decided pursuant to a motion for summary judgment under Rule 56, Federal Rules of Civil

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Procedure). (Id.) The undersigned also found that it was not clear that plaintiff had failed to

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exhaust his administrative remedies with respect to his claims against defendant Arya. (Id.)

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On December 12, 2017, the Honorable Morrison C. England adopted the August 23, 2017
findings and recommendations. (ECF No. 54.)

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D. Motion for Summary Judgment

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On September 29, 2017, defendant Arya filed the pending summary judgment motion.

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(ECF No. 46.) Defendant moves for summary judgment on the grounds that plaintiff failed to

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exhaust administrative remedies and as to the merits of plaintiff’s claims. (Id.)

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E. Motion for Leave to File Second Amended Complaint

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Pursuant to the mailbox rule, plaintiff filed his proposed second amended complaint and

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motion for leave to amend on October 2, 2017. (ECF No. 47.) The proposed second amended

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complaint names as defendants Dr. Arya, Chief Executive Officer Felder, and Deputy Director

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Lewis. Also named as defendants in the proposed second amended complaint are D. Hopkins, R.

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Rudas, P. Sahota, R. Gil, D. Bodenheimer, M. Felder, D. Knipp, J. Yang and C. Carmichael.

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The second amended complaint contains two claims. Claim one alleges that defendants

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provided inadequate medical treatment for cervical spondylosis by failing to provide adequate

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pain medication and for denying plaintiff’s request to be transferred to CMF for cervical traction.

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Claim two alleges that defendants provided inadequate medical treatment for hepatitis C.

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The second amended complaint includes the same claims made against defendant Arya as

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in the original and first amended complaints, i.e., the claims arising out of defendant Arya’s

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September 27, 2016 examination of plaintiff. The claims against the other defendants arise from

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incidents allegedly occurring after September 27, 2016.

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III. Discussion

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Defendant Arya opposes the pending motion to amend on the same grounds that he

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opposed the first motion to amend: amendment is futile, because plaintiff failed to exhaust

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administrative remedies as to his claims against defendant Arya. (ECF No. 51.) As discussed

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above, the undersigned rejected this argument in the findings and recommendations addressing

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plaintiff’s first motion to amend because the issue of administrative exhaustion was not

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appropriately raised, or considered, by the court in an opposition to a motion to amend. See

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Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc) (dismissal of a prisoner civil rights

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action for failure to exhaust administrative remedies must generally be decided pursuant to a

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motion for summary judgment under Rule 56, Federal Rules of Civil Procedure).

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Because defendant has now raised the issue of administrative exhaustion in the pending

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summary judgment motion, the undersigned can reach the issue of futility as it relates to the

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pending motion for leave to file a second amended complaint.

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Accordingly, the undersigned herein first addresses the portion of defendant’s summary
judgment motion addressing administrative exhaustion.

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A. Motion for Summary Judgment re: Exhaustion of Administrative Remedies

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Legal Standard for Summary Judgment

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Summary judgment is appropriate when it is demonstrated that the standard set forth in

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Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the

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movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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Under summary judgment practice, the moving party always bears
the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,” which it believes demonstrate
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the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

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56(c)).

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“Where the nonmoving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

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Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

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387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

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committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial

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burden of production may rely on a showing that a party who does have the trial burden cannot

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produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

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“[A] complete failure of proof concerning an essential element of the nonmoving party’s case

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necessarily renders all other facts immaterial.” Id. at 323.

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Consequently, if the moving party meets its initial responsibility, the burden then shifts to

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the opposing party to establish that a genuine issue as to any material fact actually exists. See

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

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establish the existence of such a factual dispute, the opposing party may not rely upon the

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allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

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form of affidavits, and/or admissible discovery material in support of its contention that such a

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dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party

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must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

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of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return

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a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

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(9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d
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1564, 1575 (9th Cir. 1990).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

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amendments).

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In resolving a summary judgment motion, the court examines the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.

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Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at

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255. All reasonable inferences that may be drawn from the facts placed before the court must be

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drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences

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are not drawn out of the air, and it is the opposing party’s obligation to produce a factual

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predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.

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Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

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demonstrate a genuine issue, the opposing party “must do more than simply show that there is

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some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could

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not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

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trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

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By contemporaneous notice provided on January 12, 2017 (ECF No. 10), plaintiff was

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advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal

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Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc);

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Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

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Legal Standards for Exhaustion of Administrative Remedies

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The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under section 1983..., or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies

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to all inmate suits about prison life, whether they involve general circumstances or particular

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episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534

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U.S. 516, 532 (2002).

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Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731,

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741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other

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critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme Court has

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also cautioned against reading futility or other exceptions into the statutory exhaustion

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requirement. See Booth, 532 U.S. at 741 n.6. Moreover, because proper exhaustion is necessary,

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a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise

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procedurally defective administrative grievance or appeal. See Woodford, 548 U.S. at 90–93.

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“[T]o properly exhaust administrative remedies prisoners ‘must complete the administrative

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review process in accordance with the applicable procedural rules,’ [ ]—rules that are defined not

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by the PLRA, but by the prison [or jail] grievance process itself.” Jones v. Bock, 549 U.S. 199,

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218 (2007) (quoting Woodford, 548 U.S. at 88).

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In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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On January 28, 2011, California prison regulations governing inmate grievances were revised.

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Cal. Code Regs. tit. 15, § 3084.7. Now inmates in California proceed through three levels of

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appeal to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal

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form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the

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Director of the CDCR. Cal. Code Regs. tit. 15, § 3084.7. Under specific circumstances, the first

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level review may be bypassed. Id. The third level of review constitutes the decision of the

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Secretary of the CDCR and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3).

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Since 2008, medical appeals have been processed at the third level by the Office of Third Level

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Appeals for the California Correctional Health Care Services.

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A California prisoner is required to submit an inmate appeal at the appropriate level and

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proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183

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(9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). Since the 2011 revision,

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in submitting a grievance, an inmate is required to “list all staff members involved and shall

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describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). Further, the

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inmate must “state all facts known and available to him/her regarding the issue being appealed at

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the time,” and he or she must “describe the specific issue under appeal and the relief requested.”

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Cal. Code Regs. tit. 15, §§ 3084.2(a)(4). An inmate has thirty calendar days to submit his or her

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appeal from the occurrence of the event or decision being appealed, or “upon first having

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knowledge of the action or decision being appealed.” Cal. Code Regs. tit. 15, § 3084.8(b).

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Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Bock, 549

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U.S. at 204, 216. In Albino, the Ninth Circuit agreed with the underlying panel’s decision “that

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the burdens outlined in Hilao [v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996),] should

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provide the template for the burdens here.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)

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(en banc) (hereafter “Albino”). A defendant need only show “that there was an available

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administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino, 747

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F.3d at 1172. Once the defense meets its burden, the burden shifts to the plaintiff to show that the

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administrative remedies were unavailable. See Albino, 747 F.3d at 1172; Draper v. Rosario, 836

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F.3d 1072, 1080 (9th Cir. 2016) (inmate did not meet his burden when he failed to identify any

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actions prison staff took that impeded his ability to exhaust his administrative remedies, or

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otherwise explain why he failed to comply with the administrative remedies process). The

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ultimate burden of proof, however, remains with the defendant. Id.

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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if

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he establishes that the existing administrative remedies were effectively unavailable to him. See

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Albino, 747 F.3d at 1172–73. When an inmate’s administrative grievance is improperly rejected

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on procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell,

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623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224–26 (9th Cir.

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2010) (warden’s mistake rendered prisoner’s administrative remedies “effectively unavailable”);
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Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (prisoner not required to proceed to third

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level where appeal granted at second level and no further relief was available).

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Analysis

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Defendant Arya argues that plaintiff failed to exhaust his administrative remedies prior to

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filing this action on October 11, 2016. See Jones v. Bock, 549 U.S. 199, 211 (2007) (prior to

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filing suit, inmates are required to exhaust the available administrative remedy process). In

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support of this argument, defendant cites the declaration of J. Lewis, employed by California

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Correctional Health Care Services (“CCHCS”) as the Deputy Director of Policy and Risk

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Management Services (“PRMS”). (ECF No. 46 at 33.) J. Lewis states that at the request of the

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Attorney General’s Office, a review of the inmate health care appeal records in the “HCARTS”

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database was conducted for plaintiff, for any health care appeals regarding complaints related to

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Hepatitis C that were submitted by plaintiff between October 14, 2012, through October 16, 2016.

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(Id. at 35.) The review revealed that plaintiff had not filed any staff complaints against defendant

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Arya. (Id.)

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The review also revealed two health care appeals regarding complaints related to Hepatitis

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C. (Id.) The first appeal, PBSP HC 120227223, was received November 27, 2012. (Id.) The

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health care appeal was canceled for lack of cooperation. (Id.) The second health care appeal,

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SAC HC 16033189 (processed as SAC SC 16001813), was exhausted at the Third Level on

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March 17, 2017. (Id.) J. Lewis goes on to state that on June 20, 2017, plaintiff exhausted

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administrative health care appeal SAC HC 16033680 at the third level regarding the request for

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cervical traction therapy. (Id. at 36.)

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Defendant’s evidence demonstrates that plaintiff failed to exhaust his administrative

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remedies, regarding his claim that defendant Arya failed to treat his hepatitis C, prior to filing this

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action. In his opposition, plaintiff offers no evidence demonstrating that he properly exhausted

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this claim. Accordingly, defendant Arya’s motion for summary judgment on the grounds that

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plaintiff did not administratively exhaust his claims regarding hepatitis C prior to filing this action

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should be granted.

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In his declaration, J. Lewis does not state that he searched the HCARTS database for

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grievances filed by plaintiff related his to his claims alleging inadequate pain medication and his

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request for cervical traction. Instead, J. Lewis states that plaintiff exhausted a grievance

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regarding cervical traction on June 20, 2017. A copy of the third level decision denying

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grievance no. SAC HC 160336800, attached to defendant’s summary judgment motion, indicates

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that it was denied on July 11, 2017. (Id. at 57.) This decision states that plaintiff’s appeal

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contained the following requests: 1) to be given opiate pain medication; 2) to be considered for

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laser surgery to the neck and lower back; 3) to be referred to a pain specialist; 4) to be considered

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for trigger point injections; and 5) to be transferred to CMF for prolonged cervical traction/heat

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paid treatment. (Id.)

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As discussed in the August 23, 2017 findings and recommendations, plaintiff presented

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evidence that he exhausted another grievance related to his claims for adequate pain medication

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and cervical traction. Defendant’s summary judgment motion does not address this grievance.

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The undersigned discusses this grievance herein.

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On March 3, 2016, while housed at Mule Creek State Prison (“MCSP”), plaintiff filed a

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grievance requesting that the recommendations of Dr. Silas, pain specialist, be adopted by CDCR,

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i.e. grievance no. MCSP HC 16048219. (ECF No. 33 at 10-12.) Plaintiff also requested that he

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be transferred to CMF for cervical traction and heat therapy. (Id.) Plaintiff stated that Dr. Silas

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had recommended an increase in his gabapentin and trigger point injections, and a follow-up with

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a neurosurgeon. (Id. at 12.)

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On June 12, 2016, while still housed at MCSP, plaintiff submitted the grievance to the

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third level of review. (Id. at 13.) On September 29, 2016, plaintiff’s third level grievance was

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denied. (Id. at 29.) The Director’s Level decision stated that plaintiff’s grievance contained the

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following requests: 1) the recommendations of Dr. Silas, pain specialist, be adopted by CDCR in

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full; 2) to be medically transferred to CMF for cervical traction and heat therapy; 3) to be seen by

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a neurosurgeon in person or via telemedicine; and 4) the first level of review be bypassed for

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immediate review by the Chief Executive Officer. (Id. at 29.)

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The Director’s Level decision stated that plaintiff’s medical records indicated the
following:

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On July 5, 2016, you were transferred to California State Prison,
Sacramento (SAC).

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Since your arrival to SAC, documentation indicates you have
received nursing assessments and Primary Care Provider (PCP)
follow up evaluation and treatment to September 27, 2016, for your
history of neck and lower back pain, including neurosurgery
consultation and electromyogram (EMG) and nerve conduction
study (NCS) with findings of left C6-C7 paraspinal muscle nerve
root mild irritation and degenerative disk disease (DDD). The PCP
reviewed the neurosurgeon’s recommendations with you, noting no
surgical intervention indicated at this time and to follow up as
needed. The PCP noted a plan of care including continuing current
medications, adding trial of the non-formulary medication
celecoxib (Celebrex), referral for physical therapy, and PCP follow
up in near future. The PCP additionally noted you were provided
self-exercises.

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(Id.)
Regarding cervical traction, the decision stated, “

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There is no documentation to support the [sic] PCP determined you
meet the CCHCS UM criteria for further diagnostics or to be
referred back to a neurosurgeon, or that cervical traction or heat
therapy is clinically indicated at this time…”

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(Id. at 30.)
Regarding pain medication, the decision stated,

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The order for celecoxib is currently pending non-formulary
approval, per the Inmate Medical Services Policies and Procedures
(IMSP&P), Volume 9, Chapter 8.

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Your pain medication regimen has been reviewed and adjusted on
multiple occasions indicative of ongoing assessment of your pain
complaints. Your current pharmacy profile indicates active orders
for the medication acetaminophen and gabapentin for pain
management.

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(Id. at 29-30.)

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The September 29, 2016 director’s level decision, quoted above, clearly reviewed

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defendant Arya’s notes from his September 27, 2016 exam of plaintiff. In denying the grievance,

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the decision stated that defendant Arya did not find that plaintiff required cervical traction. This
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decision addressed plaintiff’s claim requesting a transfer in order to receive cervical traction.
As stated in the August 23, 2017 findings and recommendations, prisoners are not

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required to file and exhaust separate grievances each time they allegedly receive inadequate

4

medical care for an ongoing condition. See Lewis v. Naku, 2007 WL 3046013 at *5 (E.D. Cal.

5

2007). The primary purpose of a grievance is to alert the prison to a problem and facilitate its

6

resolution, not to lay the groundwork for litigation. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th

7

Cir. 2009); accord Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010). Because the September 29,

8

2016 third level decision addressed plaintiff’s request for a transfer to CMF in order to receive

9

cervical traction, and defendant Arya’s September 27, 2016 finding that plaintiff did not qualify

10

for cervical traction, plaintiff exhausted his administrative remedies as to this claim prior to filing

11

his complaint. The fact that plaintiff later filed another grievance requesting a transfer to CMF

12

for cervical traction does not undermine this finding. Accordingly, defendant Arya should be

13

denied summary judgment as to this claim.

14

In the original complaint, plaintiff also alleged that defendant Arya prescribed Celebrex

15

after plaintiff told him that it was ineffective to treat his pain. The September 29, 2016 decision

16

generally addresses plaintiff’s complaints regarding pain medication, and notes that defendant

17

Arya prescribed Celebrex on September 27, 2016. However, this decision does not address

18

plaintiff’s specific claim that Celebrex was ineffective, and that he brought this fact to defendant

19

Arya’s attention. Plaintiff’s claim that defendant Arya wrongly prescribed Celebrex did not

20

involve an ongoing claim regarding inadequate pain medication. Instead, this claim was specific

21

to defendant Arya.

22

Accordingly, the undersigned finds that the September 29, 2016 director’s level decision

23

did not exhaust plaintiff’s claim that defendant Arya wrongly prescribed Celebrex. The record

24

contains no other evidence that plaintiff exhausted this claim prior to filing this action.

25

Accordingly, defendant Arya’s motion for summary judgment on the grounds that plaintiff failed

26

to exhaust this claim prior to filing this action should be granted.

27
28

Having addressed the issue of administrative exhaustion, the undersigned now considers
the pending motion to amend (rather than addressing defendant Arya’s motion for summary
13

1

judgment as to the merits of plaintiff’s claims).

2

B. Motion to Amend

3

1. Legal Standard for Motion to Amend

4

“Five factors are taken into account to assess the propriety of a motion for leave to amend:

5

bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether

6

the plaintiff has previously amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d

7

1147, 1154 (9th Cir. 2014) (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)).

8

These factors do not “merit equal weight,” and “it is the consideration of prejudice to the

9

opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316

10

F.3d 1048, 1052 (9th Cir. 2003) (per curiam). “Absent prejudice, or a strong showing of any of

11

the remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to

12

amend.” Id.

13

2. Discussion

14

Defendant argues that plaintiff’s motion to file a second amended complaint should be

15

denied on the grounds that amendment is futile because the claims raised against defendant Arya

16

in the original complaint are not properly exhausted.

17

A plaintiff may add newly exhausted claims in an amended complaint, only if the claims

18

asserted in the original complaint were administratively exhausted when the action was

19

commenced. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (“a

20

prisoner does not comply with [the exhaustion] requirement by exhausting available remedies

21

during the course of the litigation”); see also Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th

22

Cir. 2010) (a plaintiff may, in an amended or supplemental pleading, adding newly exhausted

23

claims based on related conduct that occurred after the filing of the original complaint.).2

24

a. Claims Regarding Denial of Request for Transfer for Cervical Traction

25

As discussed above, plaintiff properly administratively exhausted his claim against

26

defendant Arya alleging denial of his request for a transfer to CMF in order to receive cervical

27
28

2

Defendant does not argue that the newly raised claims are not exhausted.
14

1

traction. Thus, plaintiff’s motion to raise the same, potentially colorable, claims against

2

defendants Bodenheimer (ECF No. 47-1 at 10), Hopkins (id. at 11-12) and Felder (id. at 14-15), is

3

not futile.

4

b. Claims Regarding Hepatitis C

5

As discussed above, plaintiff did not administratively exhaust his claims against defendant

6

Arya regarding hepatitis C prior to filing this action. Thus, the claims raised in the proposed

7

second amended complaint alleging that defendants provided inadequate medical care for

8

hepatitis C may not be raised. See McKinney v. Carey, supra. The claims regarding hepatitis C

9

are not related to the administratively exhausted claims regarding the denial of plaintiff’s request

10

for a transfer to CMF in order to receive cervical traction. See Rhodes v. Robinson, supra.

11

Accordingly, the motion to file a second amended complaint raising new claims alleging

12

inadequate medical care regarding hepatitis C should be denied.

13

c. Claims Regarding Denial of Adequate Pain Medication

14

As discussed above, plaintiff failed to administratively exhaust his claim that defendant

15

Arya wrongly prescribed Celebrex on September 26, 2017, prior to plaintiff filing this action.

16

Thus, plaintiff may include his new claims alleging denial of adequate pain medication only if

17

they are related to his administratively exhausted claim alleging denial of his request for a transfer

18

for cervical traction made against defendant Arya in the original complaint. See Rhodes v.

19

Robinson, supra. For the reasons stated herein, the undersigned finds that these claims are not

20

sufficiently related.

21

In order to put this finding in context, the undersigned herein sets forth the new claims

22

alleging denial of adequate pain medication contained in the proposed second amended

23

complaint. These claims are made against defendants Bodenheimer, Hopkins, Knipp, Felder,

24

Sahota and Gil.

25

////

26

////

27

////

28
15

1

Proposed New Claims Alleging Inadequate Pain Medication3

2

Regarding defendant Bodenheimer, plaintiff alleges that he saw defendant Bodenheimer

3

on October 18, 2016. (ECF No. 47-1 at 10.) Plaintiff allegedly told him that defendant Arya had

4

(improperly) prescribed Celebrex. (Id.) Plaintiff complained of continued neck pain. (Id.)

5

Regarding defendant Hopkins, plaintiff alleges that on January 17, 2017, he was seen by

6

defendant Hopkins in relation to a medical appeal concerning the denial of medical services. (Id.

7

at 11.) Plaintiff requested opiate medication. (Id.)

8
9
10

Defendant Hopkins noted that prior treatment at CMF with gabapentin had proved
successful in treating plaintiff’s pain. (Id. at 12.) Defendant Hopkins stated that he would add
Tylenol # 3 to the gabapentin. (Id.)

11

On January 20, 2017, plaintiff’s gabapentin order expired. (Id.) Plaintiff alleges that

12

gabapentin is non-formulary. (Id.) Plaintiff alleges that the non-formulary order for the

13

gabapentin expired on January 29, 2017. (Id.) Plaintiff alleges that he tried to explain to the

14

nursing staff that defendant Hopkins had prescribed Tylenol # 3 for him. (Id. at 12-13.) Plaintiff

15

alleges that the issue regarding Tylenol # 3 was not addressed until he saw defendant Hopkins

16

again on January 26, 2017. (Id. at 13.) Plaintiff alleges that on January 26, 2017, defendant

17

Hopkins “doubled up” the Tylenol # 3 and agreed to submit another non-formulary request for

18

gabapentin. (Id.)

19

Regarding defendant Knipp, plaintiff alleges that after nine days passed, he had had severe

20

pain and had still not received gabapentin as promised by defendant Hopkins on January 26,

21

2017. (Id. at 13.) Plaintiff then resubmitted his medical appeal as a second level request for

22

emergency review to defendant Knipp. (Id. at 13.) Plaintiff alleges that he complained of “Dr.

23

Hopkins and Dr. Sahota perjured first level response of granting additional pain medication to the

24

gabapentin.” (Id.) Plaintiff also complained of nursing negligence and requested a personal

25

interview. (Id.) Plaintiff alleges that defendant Knipp failed to respond to his claims of staff

26
27
28

3

Later in these findings and recommendations, the undersigned alternatively recommends that
the claims against defendants Bodenheimer, Hopkins, Knipp and Sahota alleging inadequate pain
medication be denied for failing to state potentially colorable claims for relief.
16

1

misconduct or to treat the appeal as an emergency. (Id.)

2

Regarding defendant Felder, plaintiff alleges that defendant Felder responded to his

3

second level grievance on March 3, 2017. (Id. at 14.) In his response, defendant Felder noted

4

that 21 days had passed without plaintiff receiving any gabapentin. (Id.) Defendant Felder also

5

acknowledged a 30-day order for gabapentin, but failed to address the “core issue of the order and

6

non-formulary expiring in just 8 days with no follow-up scheduled despite Dr. Hopkins efforts to

7

write a 90-day order.” (Id.) Defendant Felder reasoned that plaintiff should have a goal “to

8

achieve a level of pain control that allows you to function in your activities of daily living.” (Id.)

9

Regarding defendant Sahota, plaintiff alleges that as a result of the actions of defendants

10

Sahota and Felder, plaintiff’s gabapentin prescription expired on March 10, 2017, and was not

11

renewed until April 18, 2017, at another prison. (Id.)

12

Regarding defendant Gil, plaintiff alleges that after he was transferred to California State

13

Prison-Corcoran (“Corcoran”), he was seen by defendant Gil on April 18, 2017. (Id. at 16.)

14

Plaintiff requested the renewal of his gabapentin prescription. (Id.) Defendant Gil renewed

15

plaintiff’s gabapentin prescription at 300 mg tid. (Id.) Plaintiff told defendant Gil that he had

16

previously been prescribed gabapentin at 1200 mg. tid, and that 300 mg. tid would not effectively

17

treat his pain. (Id.) Defendant Gil refused plaintiff’s request for an increased dosage of

18

gabapentin. (Id.)

19

Discussion

20

The claim against defendant Arya in the original complaint regarding denial of plaintiff’s

21

request for cervical traction and the claims against the new defendants in the proposed second

22

amended complaint for denial of pain medication are based on the same constitutional

23

amendment and are apparently related to the same alleged serious medical need. However,

24

plaintiff’s claims alleging denial of adequate pain medication are new claims against new

25

defendants. The proposed new claims largely relate to plaintiff’s failure to receive gabapentin.

26

Moreover, the claims against defendant Gil occurred at a different prison (Corcoran) seven

27

months after the September 27, 2016 exam by defendant Arya.

28

////
17

1

Plaintiff’s claims alleging inadequate pain medication are not sufficiently related to

2

plaintiff’s claim alleging denial of his request for cervical traction. See Rhodes v. Robinson, 621

3

F.3d at 1006 (citing Federal Rule of Civil Procedure 15(d); see Planned Parenthood v. of

4

Southern Arizona v. Neely, 130 F.3d 400,402 (9th Cir. 1997) (“Rule 15(d) cannot be used to

5

introduce a separate, distinct, new cause of action); Singh v. Washburn, 2016 WL 1039705 at *9-

6

10 (D. Ore. 2016) (denying prisoner’s request to file supplement complaint raising separate and

7

distinct claims); Contreraz v. Stockbridge, 2012 WL 396503, at *1 (E.D.Cal. Feb.7, 2012)

8

(denying prisoner’s request to file a supplemental complaint on the grounds that doing so

9

“[w]ould not serve the interests of judicial economy and convenience, and the proposed claims

10
11

are simply not sufficiently related to the present claim to support allowing leave to supplement”).
Accordingly, plaintiff’s motion to file a second amended complaint raising his claims

12

alleging denial of adequate pain medication should be denied on the grounds that these claims are

13

not sufficiently related to the exhausted claim raised against defendant Arya in the original

14

complaint.

15

Conclusion

16

In the opposition to plaintiff’s motion to amend, defendant also, somewhat cryptically,

17

argues that plaintiff delayed in raising the new claims alleged in the proposed second amended

18

complaint. (ECF No. 51 at 2.) Defendant argues that “[i]n fact, it is clear from his own filings,

19

that he only attempted to obtain the records after discovery closed.” (Id.) Even assuming

20

defendant is correct that plaintiff delayed in raising his new claims, undue delay, while relevant,

21

will not by itself justify denial of leave to amend. See, e.g., Morongo Band of Mission Indians v.

22

Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (“The delay of nearly two years, while not alone

23

enough to support denial, is nevertheless relevant.”); United States v. Webb, 655 F.2d 977, 980

24

(9th Cir. 1981) (“Specifically, we noted that delay alone no matter how lengthy is an insufficient

25

ground for denial of leave to amend”); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.

26

1973) (reversing trial court decision to deny leave to amend after unjustified five-year delay and

27

noting that “we know of no case where delay alone was deemed sufficient grounds to deny a Rule

28

15(a) motion to amend”).
18

1

Accordingly, plaintiff’s alleged delay in raising the new claims regarding cervical traction

2

in the proposed second amended complaint is not alone sufficient to justify denying plaintiff’s

3

motion to amend.

4

Defendant makes no other arguments in support of the opposition to plaintiff’s motion to

5

file a second amended complaint. Accordingly, the undersigned recommends that plaintiff’s

6

motion to file the second amended complaint to add new claims regarding his alleged failure to

7

receive cervical traction be granted. See Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–

8

31 (N.D. Cal. 1989 (the non-moving party bears the burden of showing why leave to amend

9

should not be granted); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)

10

(“[t]he party opposing amendment bears the burden of showing prejudice.”).

11

3. Non-Colorable Claims

12

In the alternative, for the reasons stated herein, the undersigned finds that plaintiff’s

13

claims alleging denial of adequate pain medication raised in the proposed second amended

14

complaint against defendants Bodenheimer, Hopkins, Knipp and Sahota are not potentially

15

colorable.

16

Defendant Bodenheimer

17

Regarding defendant Bodenheimer, plaintiff alleges that he saw defendant Bodenheimer

18

on October 18, 2016. (ECF No. 47-1 at 10.) Plaintiff allegedly told him that defendant Arya had

19

(improperly) prescribed Celebrex. (Id.) Plaintiff complained of continued neck pain. (Id.)

20

To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

21

plaintiff must establish that he had a serious medical need and that the defendant’s response to

22

that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

23

also Estelle v. Gamble, 429 U.S. 97, 106 (1976). To act with deliberate indifference, a prison

24

official must both be aware of facts from which the inference could be drawn that a substantial

25

risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S.

26

825, 837 (1994).

27
28

While plaintiff alleges that he told defendant Bodenheimer that the Celebrex did not work
and that he was in pain, plaintiff does not allege how defendant Bodenheimer responded to these
19

1

complaints. Because plaintiff has not described what action defendant Bodenheimer took, or

2

failed to take, after being told that the Celebrex did not effectively treat plaintiff’s pain, plaintiff

3

has not demonstrated that defendant Bodenheimer acted with deliberate indifference.

4

Accordingly, plaintiff has failed to state a potentially colorable Eighth Amendment claim against

5

defendant Bodenheimer regarding pain medication. This claim against defendant Bodenheimer

6

should be dismissed.

7

Defendant Hopkins

8

As discussed above, plaintiff alleges that on January 17, 2017, he asked defendant

9

Hopkins for opiate medication. (ECF No. 47-1 at 11.) Defendant Hopkins noted that prior

10

treatment at CMF with gabapentin had proved successful in treating plaintiff’s pain. (Id. at 12.)

11

Defendant Hopkins stated that he would add Tylenol # 3 to the gabapentin. (Id.)

12

On January 20, 2017, plaintiff’s gabapentin order expired. (Id.) Plaintiff alleges that

13

gabapentin is non-formulary, which apparently means that it must be specially ordered. (Id.)

14

Plaintiff alleges that the non-formulary order for the gabapentin expired on January 29, 2017.

15

(Id.) Plaintiff alleges that he tried to explain to the nursing staff that defendant Hopkins had

16

prescribed Tylenol # 3 for him. (Id. at 12-13.) Plaintiff alleges that the issue regarding Tylenol

17

# 3 was not addressed until he saw defendant Hopkins again on January 26, 2017. (Id. at 13.)

18

Plaintiff alleges that on January 26, 2017, defendant Hopkins “doubled up” the Tylenol # 3 and

19

agreed to submit another non-formulary request for gabapentin. (Id.)

20

Plaintiff’s claim against defendant Hopkins regarding his prescription of pain medication

21

in January 2017 is not clear. If plaintiff is claiming that defendant Hopkins denied his request for

22

opioids, and instead prescribed gabapentin and Tylenol # 3, this claim does not rise to the level of

23

deliberate indifference in violation of the Eighth Amendment. See McGuckin v. Smith, 974 F.2d

24

1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller,

25

104 F.3d 1133 (9th Cir. 1997) (a defendant “must purposefully ignore or fail to respond to a

26

prisoner’s pain or possible medical need in order for deliberate indifference to be established.”);

27

see also Parlin v. Sodhi, 2012 WL 5411710 at *4 (C.D. Cal. Aug. 8, 2012) (“At its core,

28

plaintiff’s claim is that he did not receive the type of treatment and pain medication that he
20

1

wanted when he wanted it. His preference for stronger medication—Vicodin, Tramadol, etc.,—

2

represents precisely the type of difference in medical opinion between a lay prisoner and medical

3

personnel that is insufficient to establish a constitutional violation.”); Tran v. Haar, 2012 WL

4

37506 at *3–4 (C.D. Cal. Jan. 9, 2012) (plaintiff’s allegations that defendants refused to prescribe

5

“effective medicine” such as Vicodin and instead prescribed Ibuprofen and Naproxen reflected a

6

difference of opinion between plaintiff and defendants as to the proper medication necessary to

7

relieve plaintiff’s pain and failed to state an Eighth Amendment claim).

8
9
10
11

Plaintiff also does not allege that defendant Hopkins caused, or had knowledge of, any of
the alleged delays he experienced in receiving gabapentin and Tylenol # 3 after they were
prescribed by defendant Hopkins.
Accordingly, in the alternative, the undersigned recommends that the claims alleging that

12

defendant Hopkins failed to prescribe adequate pain medication be dismissed for failing to state

13

potentially colorable claims.

14

Defendant Knipp

15

Plaintiff alleges that after nine days passed, and he had severe pain and had still not

16

received gabapentin as promised by defendant Hopkins on January 26, 2017, he resubmitted his

17

medical appeal as a second level request for emergency review to defendant Knipp. (ECF No.

18

47-1 at 13.) Plaintiff alleges that he complained of “Dr. Hopkins and Dr. Sahota perjured first

19

level response of granting additional pain medication to the gabapentin.” (Id.) Plaintiff also

20

complained of nursing negligence and requested a personal interview. (Id.) Plaintiff alleges that

21

defendant Knipp failed to respond to his claims of staff misconduct or to treat the appeal as an

22

emergency. (Id.)

23

The undersigned acknowledge that, “a plaintiff may establish liability on the part of

24

defendants involved in the administrative grievance process under the Eighth Amendment by

25

alleging that his appeal put defendants on notice that he had a serious medical need that was not

26

being met, and their denial, therefore, constituted deliberate indifference to his medical need.”

27

Brammer v. Yates, 2011 WL 5873393, at *5 (E.D. Cal. Nov. 22, 2011). However, plaintiff’s

28

allegations against defendant Knipp regarding his review of plaintiff’s grievance do not state a
21

1

potentially colorable Eighth Amendment claim. While plaintiff alleges that defendant Knipp

2

failed to treat his appeal alleging the denial of pain medication as an emergency, plaintiff does not

3

allege when or how defendant Knipp responded to his grievance. Without knowing when or how

4

defendant Knipp responded to the grievance, the undersigned cannot determine whether

5

defendant Knipp acted with deliberate indifference. For these reasons, in the alternative, the

6

undersigned recommends that the claims against defendant Knipp alleging denial of adequate

7

pain medication be dismissed for failing to state potentially colorable claims.

8

Defendant Sahota

9

Plaintiff alleges that as a result of the actions of defendant Sahota, plaintiff’s gabapentin

10

prescription expired on March 10, 2017, and was not renewed until April 18, 2017, at another

11

prison. (ECF No. 47-1 at 14-15.) Plaintiff does not describe Sahota’s conduct which led to the

12

alleged expiration of his gabapentin prescription.

13

The Civil Rights Act under which this action was filed provides as follows:

14

Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

15
16
17

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

18

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

19

Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

20

liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

21

affirmative link between the incidents of police misconduct and the adoption of any plan or policy

22

demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

23

to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

24

affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

25

legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

26

588 F.2d 740, 743 (9th Cir. 1978).

27
28

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior and, therefore, when a named defendant
22

1

holds a supervisorial position, the causal link between him and the claimed constitutional

2

violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

3

(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

4

438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

5

denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

6

official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

7

F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

8

participation is insufficient).

9

The claim that defendant Sahota caused the expiration of plaintiff’s gabapentin

10

prescription should be dismissed because plaintiff does not describe the actions of defendant

11

Sahota leading to this alleged deprivation.

12

IV. Conclusion

13

For the reasons discussed above, the undersigned recommends that defendant Arya’s

14

summary judgment motion, on the grounds that plaintiff failed to exhaust administrative remedies

15

as to his claims regarding hepatitis C and Celebrex, be granted; the motion for summary judgment

16

on the grounds that plaintiff failed to exhaust administrative remedies regarding plaintiff’s claims

17

concerning his transfer to CMF for cervical traction should be denied.

18

For the reasons discussed above, the undersigned recommends that plaintiff’s motion for

19

leave to file a second amended complaint be granted with respect to the claims alleging that

20

defendants Bodenheimer, Hopkins, and Felder denied plaintiff’s request for a transfer in order to

21

receive cervical traction, on the grounds that these claims are sufficiently related to the same

22

claim raised against defendant Arya in the original complaint.

23

The undersigned recommends that plaintiff’s motion to file a second amended complaint

24

alleging that defendants Bodenheimer, Hopkins, Knipp, Felder, Sahota and Gil denied him

25

adequate pain medication should be denied on the grounds that these claims are not sufficiently

26

related to the administratively exhausted claim raised against defendant Arya in the original

27

complaint, alleging denial of plaintiff’s request for a transfer in order to receive cervical traction.

28

////
23

1

In the alternative, the undersigned recommends the claims alleging that defendants

2

Bodenheimer, Sahota, Knipp and Hopkins denied plaintiff adequate pain medication, contained in

3

the proposed second amended complaint, be dismissed for failing to state potentially colorable

4

claims for relief.

5

If the district court adopts these findings and recommendations, the undersigned will order

6

defendant Arya to file a response to the second amended complaint, and order service of

7

defendants Bodenheimer, Hopkins and Felder.

8

Because the undersigned recommends that this action proceed as to newly named

9

defendants Bodenheimer, Hopkins and Felder regarding plaintiff’s claim alleging denial of

10

cervical traction, the undersigned recommends that defendant Arya’s motion for summary

11

judgment on the merits of this claim be denied without prejudice to renewal at a later stage of

12

these proceedings. The undersigned also need not address defendant Arya’s motion for summary

13

judgment as to the merits of plaintiff’s claim that defendant wrongly prescribed Celebrex and

14

failed to provide hepatitis C treatment because these claims are not administratively exhausted.

15

Accordingly, IT IS HEREBY RECOMMENDED that:

16

1. Defendant Arya’s summary judgment motion (ECF No. 46) on the grounds that

17

plaintiff failed to exhaust administrative remedies as to his claims regarding hepatitis C and

18

Celebrex be granted; defendant Arya’s summary judgment motion on the grounds that plaintiff

19

failed to exhaust administrative remedies as to his claim regarding cervical traction be denied;

20

defendant’s summary judgment motion as to the merits of plaintiff’s claim regarding cervical

21

transfer be denied without prejudice to renewal at a later stage of these proceedings;

22
23
24
25
26

2. Plaintiff’s motion to file a second amended complaint (ECF No. 47) be granted in part
and denied in part;
3. Plaintiff’s motion to file a second amended complaint raising new claims regarding
treatment for hepatitis C and denial of adequate pain medication be denied;
4. Plaintiff’s motion to file a second amended complaint be granted as to his claims

27

alleging that defendants Arya, Bodenheimer, Hopkins and Felder denied his request to be

28

transferred in order to receive cervical traction;
24

1

5. In the alternative, plaintiff’s claims that defendants Bodenheimer, Sahota, Knipp and

2

Hopkins denied plaintiff adequate pain medication, contained in the proposed second amended

3

complaint, be dismissed for failing to state potentially colorable claims for relief.

4

These findings and recommendations are submitted to the United States District Judge

5

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

6

after being served with these findings and recommendations, any party may file written

7

objections with the court and serve a copy on all parties. Such a document should be captioned

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

9

objections shall be filed and served within fourteen days after service of the objections. The

10

parties are advised that failure to file objections within the specified time may waive the right to

11

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

12

Dated: May 16, 2018

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