Thornberry v. Chau et al

Filing 36

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/8/2019 GRANTING 22 Motion to Amend; DENYING without prejudice 24 Request for Subpoenas; DENYING without prejudice 26 and 27 Motions to Compel; DENYING 31 Motion for Summary Judgment and 28 Motion to "Exceed the Page Length"; VACATING all deadlines in 21 Discovery and Scheduling Order; and DISMISSING 23 First Amended Complaint with leave to amend within 30 days of service of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE THORNBERRY,

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No. 2:18-cv-0094 WBS EFB P

Plaintiff,
v.

ORDER

JAMES CHAU, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to

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42 U.S.C. § 1983. He filed his initial complaint on January 16, 2018. ECF No. 1. The court

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screened that complaint and determined that, based on plaintiff’s Eighth Amendment medical

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deliberate indifference claims, service was appropriate for defendant Adlasghar Mohyuddin. ECF

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No. 9. The court recommended dismissal of plaintiff’s claims against all other defendants. Id.

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Those recommendations were adopted on June 12, 2018. ECF No. 16.

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On August 27, 2018, after defendant Mohyuddin filed an answer and the court had issued

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a discovery and scheduling order (ECF No. 21), plaintiff filed a motion to amend his complaint

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(ECF No. 22) together with a proposed amended complaint (ECF No. 23). Thereafter, he filed a

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request for subpoenas (ECF No. 24) and a motion to compel discovery responses (ECF Nos. 26 &

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27). He also filed a motion for summary judgment (ECF No. 31) and a motion to “exceed the

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page length” (ECF No. 28). Plaintiff’s motion to amend is granted, Fed. Rule Civ. P. 15(a), and

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the court will screen the amended complaint. Further, all deadlines in the discovery and
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scheduling order are vacated. Plaintiff’s request for subpoenas, his motions to compel, and the

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summary judgment motions are denied.

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Screening

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I.

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Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant.

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Legal Standards

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action's elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint's allegations are

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true.” Id. (citations omitted). Dismissal is appropriate 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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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007).

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II.

Analysis
A.

Background

The amended complaint asserts claims only against defendant Mohyuddin. Plaintiff

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alleges that, in June of 2017, he was examined by physician assistant Diedre Bodenhamer for

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spinal and neurological damage and chronic pain associated therewith. ECF No. 23 at 3-4. At

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the end of the encounter, Bodenhamer allegedly suggested epidural steroidal injections (“ESI”) as

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a potential treatment for plaintiff’s chronic pain. Id. at 4. Plaintiff was amenable to this plan and

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Bodenhamer ordered an MRI of his spine to determine suitability of ESI. Id. at 4-5. After the

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MRI was completed, Bodenhamer referred plaintiff to an outside consultant at the Doctor’s

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Hospital of Manteca California for a second opinion. Id. at 5. The outside doctor agreed with

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Bodenhamer’s proposed ESI treatment. Id.

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After the outside consult was completed, however, plaintiff received a new prison housing

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assignment. Id. As a consequence of this reassignment, plaintiff was automatically placed under

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the care of a different medical provider – defendant Mohyuddin. Id. at 5-6. In September of

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2017, plaintiff was examined by defendant. Id. at 6. Plaintiff alleges that, at this examination,

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defendant “spent a disproportionate amount of time attempting to discern whether plaintiff was

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attempting to overstate his symptoms . . .” Id. Plaintiff claims that defendant adopted a

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contemptuous attitude toward him during this interaction. Id.

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Then, in October 2017, plaintiff saw defendant again, this time after returning from an

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outside consult regarding the proposed ESI treatment. Id. at 7. Defendant allegedly tried to

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dissuade him from pursuing that treatment plan. Id. Plaintiff claims that defendant “made no

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secret of his disdain for epidural injections as treatment for chronic pain . . . .” Id. Plaintiff states

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that defendants’ skepticism flies in the face of ESI treatment’s documented successes and the fact

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that it has become routine in treating chronic pain. Id. at 8. Plaintiff elaborates on the reasons

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why he disagrees with Mohyuddin’s skepticism of ESI treatments, including plaintiff’s belief that

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Mohyuddin confused the symptoms of acute pain with chronic debilitating pain. Id. at 8

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(referencing FDA guidelines). He also suggests that Mohyuddin intentionally misrepresented

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“plaintiff’s medical need and the likelihood of success with the EPI injection.” Id.
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Finally, plaintiff alleges that the “most troubling” part of his interactions with defendant was the

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latter’s obvious desire to reach a particular medical conclusion. Id. at 9. However, the complaint

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does not state that Mohyuddin actually barred plaintiff’s access to such treatment.

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B.

Analysis

Plaintiff’s claims against defendant, as currently pleaded, amount to nothing more than a

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difference of opinion regarding his treatment. Such disagreement does not give rise to a

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constitutional claim. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Nothing in

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plaintiff’s amended complaint indicates that defendant’s skepticism of ESI treatment was not

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grounded in good faith. It may be that defendant was wrong, perhaps his skepticism was so out

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of step with common medical practice as to be negligent, maybe grossly so. But that is not the

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standard for deliberate indifference, which instead requires that a defendant “recognize[ ] [an]

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unreasonable risk and actually intend[ ] to expose the plaintiff to such risks without regard to the

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consequences to the plaintiff.” L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir. 1996). The state of

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mind required to show deliberate indifference standard is akin to criminal recklessness. Farmer

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v. Brennan, 511 U.S. 825, 827 (1994). The claims here – that defendant was skeptical of ESI

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treatment, that his medical examinations were weighted toward a particular conclusion, that he

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attempted to dissuade plaintiff from pursuing ESI treatment – cannot, taken as true and viewed

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under the most generous interpretation possible, reach that high standard.

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C.

Leave to Amend

Having determined that this amended complaint fails to state a viable claim, the court

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must determine whether to grant plaintiff further leave to amend. Given that plaintiff’s previous

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complaint raised at least one colorable claim and that, conceivably, the instant claims could be

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cured by the allegation of other facts, the court will give plaintiff one opportunity to amend. See

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Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

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Request for Subpoenas, Motion to Compel, and Summary Judgment Motions
In light of the fact that the operative complaint in this action fails to state a cognizable

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claim, the court will deny plaintiff’s request for subpoenas (ECF No. 24) and motions to compel

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(ECF Nos. 26 & 27) without prejudice. The court must also deny the motion for summary
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judgment (ECF No. 31) and motion to “exceed the page length” (ECF No. 28). He may renew

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these requests when and if the court determines that a subsequent complaint articulates a

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cognizable claim. For the same reason, the court will stay all deadlines in the discovery and

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scheduling order (ECF No. 21) until further order of the court.

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Conclusion

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Accordingly, it is ORDERED that:

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1. Plaintiff’s motion to amend (ECF No. 22) is GRANTED;

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2. Plaintiff’s request for subpoenas (ECF No. 24) is DENIED without prejudice;

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3. Plaintiff’s motions to compel (ECF Nos. 26 & 27) are DENIED without prejudice;

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4. Plaintiff’s motion for summary judgment (ECF No. 31) and motion to “exceed the

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page length” (ECF No. 28) are denied;

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5. All deadlines in the discovery and scheduling order (ECF No. 21) are vacated and if

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plaintiff files an amended complaint which survives screening, a new scheduling order will be

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entered;

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6. Plaintiff’s first amended complaint (ECF No. 23) is DISMISSED with leave to amend
within 30 days of service of this order; and
7. Failure to comply with any part of this this order may result in dismissal of this action.
DATED: February 8, 2019.

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