Goolsby v. Ridge et al

Filing 23

ORDER Granting Defendants' Motion To Dismiss Plaintiff's First Amended Complaint (Re Doc. 13 ): This Order supercedes the Report and Recommendation issued on 5/10/2011 (Doc. 20 ). Defendant Wilson's Motion to Dismiss count two of the Amended Complaint for Plaintiff's failure to exhaust administrative remedies is granted without leave to amend. Goolsby's allegations against Wilson in count three are sua sponte dismissed without leave to amend. Defendants Ridge and Marti nez's Motion to Dismiss the Eighth Amendment charges against them in count one for failing to personally examine Goolsby and failing to prescribe the medications Plaintiff preferred is granted without leave to amend for failure to state a claim. Further, Ridge and Martinez's Motion to Dismiss these two claims based on qualified immunity is granted without leave to amend. Their Motion to Dismiss the claim alleging that Ridge and Martinez failed to ensure that Goolsby underwent the diagn ostic tests ordered by treating physicians at county jail is granted with leave to amend. Defendants' claim of qualified immunity for this claim is premature. Finally, Goolsby's request for injunctive relief is moot and is denied. Plaintiff is granted 45 days leave from the date this Order is filed in which to file a Second Amended Complaint which cures all the deficiencies of pleading the claim in count one against Drs. Ridge and Martinez that they failed to ensure that Goolsby underwent the diagnostic tests ordered by physicians at county jail as noted. Signed by Magistrate Judge Ruben B. Brooks on 5/23/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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THOMAS GOOLSBY,
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Plaintiff,
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v.
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NEAL RIDGE, M.D.; M. MARTINEZ,
M.D.; C. WILSON, correctional
officer,

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Defendants.
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Civil No. 09cv02654 WQH (RBB)
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT [ECF
NO. 13]

On May 10, 2011, this Court issued a Report and Recommendation

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Granting Defendants’ Motion to Dismiss Plaintiff’s First Amended

20

Complaint [ECF Nos. 13, 20].

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Defendants’ Ex Parte Application for an Order Referring This Case

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To the Magistrate Judge was filed, along with the Declaration fo

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Sylvie P. Snyder and the Notice, Consent and Reference of a Civil

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Action to a Magistrate Judge [ECF No. 21].

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to magistrate judge jurisdiction when he filed his First Amended

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Complaint.1

The next day, on May 11, 2011,

Plaintiff had consented

On May 19, 2011, United States District Court Judge

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The Court will cite to the First Amended Complaint using the
page numbers assigned by the electronic case filing system.
1

09cv02654 WQH(RBB)

1

William Q. Hayes granted Defendants’ Ex Parte Application and

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referred the case to this Court [ECF No. 22].

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light of the consent to magistrate judge jurisdiction, this Order

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supercedes the Report and Recommendation issued on May 10, 2011

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[ECF No. 20].

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Accordingly, in

Plaintiff Thomas Goolsby, a state prisoner proceeding pro se

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and in forma pauperis, filed a Complaint against Defendants Ridge,

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Martinez, Sanchez, and Wilson on November 23, 2009, pursuant to 42

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U.S.C. § 1983 [ECF Nos. 1, 4].

He filed an Amended Complaint,

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along with a Memorandum of Points and Authorities, on March 24,

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2010 [ECF No. 5].

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Ridge, Martinez, and Wilson, but not Defendant Sanchez.

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Compl. 1, ECF No. 5.)

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Martinez, and Wilson filed a Motion to Dismiss Plaintiff’s First

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Amended Complaint, along with a Memorandum of Points and

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Authorities, the Declaration of J. Rivera, and the Declaration of

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R. Cobb [ECF No. 13].

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advising Plaintiff of Defendants’ Motion to Dismiss, in part, for

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failure to exhaust, and allowing Goolsby time to present any

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additional evidence demonstrating exhaustion [ECF No. 15].

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Plaintiff’s Reply to Defendants’ Motion to Dismiss, with Goolsby’s

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“jail records” attached as an exhibit, was filed along with an

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exhibit nunc pro tunc to November 2, 2010 [ECF No. 17].

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construes this pleading as Plaintiff’s Opposition.2

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2010, Defendants’ Reply to Plaintiff’s Opposition to Defendants’

In his subsequent pleading, Plaintiff included
(See Am.

On September 16, 2010, Defendants Ridge,

The Court issued a Klingele/Rand Notice

The Court

On December 3,

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2

The Court will also cite to the Opposition using the page
numbers assigned by the electronic case filing system.
2

09cv02654 WQH(RBB)

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Motion to Dismiss Plaintiff’s Amended Complaint was filed [ECF No.

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18].

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The Court has reviewed the Amended Complaint and attachment,

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Defendants’ Motion to Dismiss and attachments, Plaintiff’s

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Opposition and exhibits, and Defendants’ Reply.

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stated below, Defendants’ Motion to Dismiss is GRANTED.

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I.

For the reasons

FACTUAL BACKGROUND

Although Plaintiff is currently incarcerated at California
Correctional Institution in Tehachapi, California, the allegations

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in the Amended Complaint arise from events that occurred while

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Goolsby was housed at Richard J. Donovan Correctional Facility

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(“Donovan”) between December 16, 2008, and February 11, 2009.

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Compl. 1, 3, ECF No. 5.)

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that he was transferred from San Diego County Jail to Donovan on

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December 16, 2008.

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transfer to Donovan, medical doctors at San Diego County Jail had

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diagnosed the following injuries:

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sprained or strained back and neck muscles, possible strictures

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(intestinal cuts), a human bite on his right hand, and damaged back

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muscles.

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injuries because he fell down stairs, had an altercation with his

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cell partner, and collapsed in his cell.

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that the doctors at county jail treated his injuries by giving him

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a neck brace, a walker, and medications.

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ordered several tests to be performed on Plaintiff:

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resonance imaging test (“MRI”), to ascertain whether Goolsby’s

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rotator cuff was torn; an endoscopy; and a colonoscopy.

In his Amended Complaint, Goolsby alleges

(Id. at 3.)

(Id. at 4-5.)

(Am.

He claims that shortly before his

a potentially torn rotator cuff,

Plaintiff asserts he received these

(Id.)

Goolsby states

(Id. at 5.)

The doctors

a magnetic

(Id.)

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09cv02654 WQH(RBB)

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In count one of the Amended Complaint, Plaintiff contends that

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medical doctors Ridge and Martinez violated his constitutional

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rights to receive adequate medical care and to be free from cruel

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and unusual punishment.

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2.)

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Martinez were deliberately indifferent to his serious medical

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needs.

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these Defendants were aware of his medical needs because of his

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previous doctors’ orders for medical care and his repeated requests

(Id. at 3; id. Attach. #1 Mem. P. & A. 1-

Specifically, Goolsby states that Defendants Ridge and

(Am. Compl. 3, 8, 11, ECF No. 5.)

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for medical attention.

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despite Defendants’ awareness of his condition, they did not

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examine Plaintiff’s injuries, order medication, or ensure that the

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medical tests ordered by the doctors at county jail were performed.

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(Id. at 11.)

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failed to order that his walker be returned to him after it was

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improperly taken by Defendant Wilson, a correctional officer at

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Donovan.

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(Id. at 4, 6-8.)

Plaintiff argues that

According to Goolsby,

Plaintiff maintains that Ridge and Martinez also

(Id. at 9, 11.)

In counts two and three, Goolsby makes similar Eighth

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Amendment claims regarding Defendant Wilson’s deliberate

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indifference to Plaintiff’s serious medical needs and Wilson’s

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failure to protect Plaintiff from the use of excessive force.

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at 15-16; id. Attach. #1 Mem. P. & A. 7 (citing Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006)).)

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that Wilson acted with deliberate indifference to Plaintiff’s

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severe neck, back, and shoulder pain when Wilson took Goolsby’s

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walker from him, forced him to live in a top-tier cell, and

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handcuffed his arms behind his back.

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id. Attach. #1 Mem. P. & A. 5-6.)

(Id.

Goolsby alleges in count two

(Am. Compl. 13-15, ECF No. 5;

Plaintiff contends in count

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09cv02654 WQH(RBB)

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three that Defendant Wilson’s actions constituted a failure to

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protect Goolsby from “painful and unsafe activities.”

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16, ECF No. 5; id. Attach. #1 Mem. P. & A. 6-7.)

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II.

LEGAL STANDARDS APPLICABLE TO DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM

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(Am. Compl.

A.

Motions to Dismiss for Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to

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Federal Rule of Civil Procedure 12(b)(6) tests the legal

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sufficiency of the claims in the complaint.

Davis v. Monroe County

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Bd. of Educ., 526 U.S. 629, 633 (1999).

“The old formula –- that

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the complaint must not be dismissed unless it is beyond doubt

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without merit –- was discarded by the Bell Atlantic decision [Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)].”

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Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

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A complaint must be dismissed if it does not contain “enough facts

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to state a claim to relief that is plausible on its face.”

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Atl. Corp., 550 U.S. at 570.

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the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the

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misconduct alleged.”

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1937, 1949 (2009).

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factual allegations in the complaint, as well as reasonable

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inferences to be drawn from them, and must construe the complaint

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in the light most favorable to the plaintiff.

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129 S.Ct. at 1949-50; see also

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382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank,

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352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

Limestone

Bell

“A claim has facial plausibility when

Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.

This Court must accept as true all material

Id., __ U.S. at __,

Cholla Ready Mix, Inc. v. Civish,

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09cv02654 WQH(RBB)

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The Court does not look at whether the plaintiff will

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“ultimately prevail but whether the claimant is entitled to offer

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evidence to support the claims.”

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236 (1974); see Bell Atl. Corp. v. Twombly, 550 U.S. at 563 n.8.

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dismissal under Rule 12(b)(6) is generally proper only where there

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“is no cognizable legal theory or an absence of sufficient facts

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alleged to support a cognizable legal theory.”

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250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).

Scheuer v. Rhodes, 416 U.S. 232,
A

Navarro v. Block,

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The Court need not accept conclusory allegations in the

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complaint as true; rather, it must “examine whether [they] follow

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from the description of facts as alleged by the plaintiff.”

13

v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation

14

omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir.

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1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994))

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(stating that on Rule 12(b)(6) motion, a court “is not required to

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accept legal conclusions cast in the form of factual allegations if

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those conclusions cannot reasonably be drawn from the facts

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alleged[]”).

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allegations that are merely conclusory, unwarranted deductions of

22

fact, or unreasonable inferences.”

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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Holden

“Nor is the court required to accept as true

Sprewell v. Golden State

When resolving a motion to dismiss for failure to state a

25

claim, the Court generally may not consider materials outside the

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pleadings.

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n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120

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F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen.

Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197

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09cv02654 WQH(RBB)

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Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995).

“The focus of

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any Rule 12(b)(6) dismissal . . . is the complaint.”

Schneider,

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151 F.3d at 1197 n.1.

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allegations that may be raised in a plaintiff’s opposition to a

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motion to dismiss brought pursuant to Rule 12(b)(6).

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Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993); 2 James

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Wm. Moore et al., Moore’s Federal Practice § 12.34[2] (3d ed. 1997)

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(“The court may not . . . take into account additional facts

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asserted in a memorandum opposing the motion to dismiss, because

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such memoranda do not constitute pleadings under Rule 7(a).”)).

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“When a plaintiff has attached various exhibits to the

This precludes consideration of “new”

Id. (citing

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complaint, those exhibits may be considered in determining whether

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dismissal [i]s proper . . . .”

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(citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)).

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The Court may also consider “documents whose contents are alleged

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in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading . . . .”

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Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other

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grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th

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Cir. 2002); Stone v. Writer’s Guild of Am. W., Inc., 101 F.3d 1312,

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1313-14 (9th Cir. 1996).

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B.

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Parks Sch. of Bus., 51 F.3d at 1484

Branch v.

Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights

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case, the Court must construe the pleadings liberally and afford

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the plaintiff any benefit of the doubt.

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

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of liberal construction is “particularly important in civil rights

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cases.”

Karim-Panahi v. Los
The rule

Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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09cv02654 WQH(RBB)

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In giving liberal interpretation to a pro se civil rights

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complaint, the Court may not “supply essential elements of claims

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that were not initially pled.”

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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conclusory allegations of official participation in civil rights

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violations are not sufficient to withstand a motion to dismiss.”

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Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th

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Cir. 1984) (finding conclusory allegations unsupported by facts

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insufficient to state a claim under § 1983).

Ivey v. Bd. of Regents of the Univ.
“Vague and

“The plaintiff must

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allege with at least some degree of particularity overt acts which

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defendants engaged in that support the plaintiff’s claim.”

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733 F.2d at 649 (internal quotation omitted).

Jones,

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Nevertheless, the Court must give a pro se litigant leave to

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amend his complaint “unless it determines that the pleading could

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not possibly be cured by the allegation of other facts.”

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Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation

17

omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir.

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1987)).

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dismissed, the court must provide the plaintiff with a statement of

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the complaint’s deficiencies.

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Where amendment of a pro se litigant’s complaint would be futile,

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denial of leave to amend is appropriate.

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F.3d 1074, 1077 (9th Cir. 2000).

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C.

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Lopez v.

Thus, before a pro se civil rights complaint may be

Karim-Panahi, 839 F.2d at 623-24.

See James v. Giles, 221

Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts

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sufficient to show (1) a person acting “under color of state law”

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committed the conduct at issue, and (2) the conduct deprived the

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plaintiff of some right, privilege, or immunity protected by the

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09cv02654 WQH(RBB)

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Constitution or laws of the United States.

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(West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th

3

Cir. 1986).

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42 U.S.C.A. § 1983

These Rule 12 (b)(6) guidelines apply to Defendants’ Motion.

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III.

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DEFENDANTS’ MOTION TO DISMISS

Defendants Ridge, Martinez, and Wilson move to dismiss

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Plaintiff’s Amended Complaint for failure to exhaust administrative

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remedies, failure to state a claim upon which relief may be

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granted, and under a theory of qualified immunity.

(Mot. Dismiss

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1-2, ECF No. 13; id. Attach. #1 Mem. P. & A. 7, 22.)

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A.

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13
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Exhaustion
1.

Motion to Dismiss Unexhausted Claims Pursuant to the
Unenumerated Portions of Rule 12(b)

Title 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act

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(“PLRA”) states:

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prison conditions under . . . 42 U.S.C. 1983 . . . or any other

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Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are

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available are exhausted.”

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exhaustion requirement applies regardless of the relief sought.

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Booth v. Churner, 532 U.S. 731, 741 (2001) (citation omitted).

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“No action shall be brought with respect to

42 U.S.C.A. § 1997e(a) (West 2003).

The

“‘[A]n action is “brought” for purposes of § 1997e(a) when the

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complaint is tendered to the district clerk[]’ . . . .”

Vaden v.

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Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006) (quoting Ford v.

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Johnson, 362 F.3d 395, 400 (7th Cir. 2004)).

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must “exhaust administrative remedies before submitting any papers

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to the federal courts.”

Therefore, prisoners

Id. at 1048 (emphasis added).

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09cv02654 WQH(RBB)

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Section 1997e(a)’s exhaustion requirement creates an

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affirmative defense.

Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

3

Cir. 2003).

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the absence of exhaustion.”

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§ 1983 actions properly raise the affirmative defense of failure to

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exhaust administrative remedies through an unenumerated motion to

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dismiss under Rule 12(b).

“[D]efendants have the burden of raising and proving
Id. (footnote omitted).

Defendants in

Id. (citations omitted).

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Unlike motions to dismiss for failure to state a claim for

9

which relief may be granted, “[i]n deciding a motion to dismiss for

10

failure to exhaust nonjudicial remedies, the court may look beyond

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the pleadings and decide disputed issues of fact.”

12

(citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837

13

F.2d 365, 369 (9th Cir. 1988)) (footnote omitted).

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discretion regarding the method they use to resolve such factual

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disputes.

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ruling on a motion to dismiss also may take judicial notice of

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‘matters of public record.’”

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926, 928 (C.D. Cal. 2005) (citing Lee v. City of Los Angeles, 250

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F.3d 668, 688 (9th Cir. 2001) (citations omitted)).

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district court looks beyond the pleadings to a factual record in

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deciding the motion to dismiss for failure to exhaust[,] . . . the

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court must assure that [the plaintiff] has fair notice of his

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opportunity to develop a record.”

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Id. at 1119-20

Courts have

Ritza, 837 F.2d at 369 (citations omitted).

“A court

Hazleton v. Alameida, 358 F. Supp. 2d

But “if the

Wyatt, 315 F.3d at 1120 n.14.

“[When] the district court concludes that the prisoner has not

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exhausted nonjudicial remedies, the proper remedy is dismissal of

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the claim without prejudice.”

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at 368 n.3).

Id. at 1120 (citing Ritza, 837 F.2d

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09cv02654 WQH(RBB)

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2.

The Administrative Grievance Process

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“The California Department of Corrections [‘CDC’] provides a

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four-step grievance process for prisoners who seek review of an

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administrative decision or perceived mistreatment:

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level, a first formal level, a second formal level, and the

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Director’s level.”

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Valoff, 422 F.3d 926, 929-30 (9th Cir. 2005)).

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appeal system can be found in title 15, sections 3084.1, 3084.5,

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and 3084.6 of the California Code of Regulations (“CCR”).3

an informal

Vaden, 449 F.3d at 1048-49 (citing Brown v.
The administrative

See

10

Brown, 422 F.3d at 929-30 (citing Cal. Code Regs. tit. 15, §§

11

3084.1(a), 3084.5(a)-(b), (e)(1)-(2), 3084.6(c) (amended 2011)).

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To comply with the CDC’s administrative grievance procedure,

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an inmate must submit the grievance at the informal level “within

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15 working days of the event or decision being appealed . . . .”

15

Cal. Code Regs. tit. 15, § 3084.6(c) (2010); see also Brown, 422

16

F.3d at 929.

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administrative grievance process before initiating a § 1983 suit in

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federal court.

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An inmate must proceed through all levels of the

See Vaden, 449 F.3d at 1051.

A prisoner’s grievances must be “sufficient under the

20

circumstances to put the prison on notice of the potential claims

21

and to fulfill the basic purposes of the exhaustion requirement.”

22

Irvin v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001).

23
24
25
26
27
28

3

The Code sections governing the prison administrative
grievance process were amended on December 17, 2010, effective
January 28, 2011. See Cal. Code Regs. tit. 15, §§ 3084 - 3084.8
(amended 2011). Because Goolsby filed the Amended Complaint on
March 24, 2010, the Court will use the regulations in effect at
that time. (See Am. Compl. 1, ECF No. 5); Cal. Code Regs. tit. 15,
§§ 3084 - 3084.8 (2010) (current version at Cal. Code Regs. tit.
15, §§ 3084 - 3084.8 (2011)); see also Shepard v. Cohen, No. 1:09cv-01628, 2011 U.S. Dist. LEXIS 6838, at *4 n.1 (E.D. Cal. Jan. 25,
2011).
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09cv02654 WQH(RBB)

1

Exhaustion serves several important goals, including “allowing a

2

prison to address complaints about the program it administers

3

before being subjected to suit, reducing litigation to the extent

4

complaints are satisfactorily resolved, and improving litigation

5

that does occur by leading to the preparation of a useful record.”

6

Jones v. Bock, 549 U.S. 199, 219 (2007) (citing Woodford v. Ngo,

7

548 U.S. 81, 88-91 (2006), Porter v. Nussle, 534 U.S. 516, 524

8

(2002)).

9

3.

Plaintiff’s Failure to Exhaust Allegations Against

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Defendant Wilson

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In count two of the Amended Complaint, Goolsby alleges that

12

Correctional Officer Wilson confiscated Plaintiff’s walker.

13

Compl. 12, ECF No. 5.)

14

walker back, explaining to Defendant Wilson that without it he

15

would suffer “serious pain and muscle spasm[]s and cramp[]s.”

16

at 13.)

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to allow him to use the walker.

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Wilson failed to assign Goolsby to a lower-tier cell.

19

Instead, Wilson assigned him to an upper-tier cell, forcing Goolsby

20

to climb up the stairs to his cell without a walker, causing him

21

“insane amounts of pain.”

22

Defendant Wilson handcuffed Goolsby’s hands behind his back,

23

“causing intense and excruciating pain in [Plaintiff’s] hurt right

24

shoulder.”

25

to be “bed ridden virtually for weeks.”

26

Wilson’s conduct amounted to a constitutional violation.

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15.)

(Am.

Goolsby claims that he pleaded for his

(Id.

Plaintiff argues that Wilson ignored his pleas and refused

(Id.)

(Id.)

(Id.)

Additionally, Defendant
(Id. at 14).

Plaintiff further complains that

According to Goolsby, this treatment caused him
(Id.)

He asserts that
(Id. at

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09cv02654 WQH(RBB)

1

Defendant Wilson maintains that Plaintiff failed to exhaust

2

the claim against him in count two of the Amended Complaint because

3

Goolsby did not submit a grievance “directly addressing” Wilson’s

4

purported confiscation of Plaintiff’s walker or his assignment of

5

Goolsby to the upper tier.

6

7-8, ECF No. 13.)

7

Plaintiff’s grievance, Defendants claim that Goolsby only submitted

8

a grievance regarding the medical care provided by Dr. Ridge and

9

Dr. Martinez.

(Mot. Dismiss Attach. #1 Mem. P. & A.

Although none of the Defendants are named in

(Id. at 2, 8.)

Because Plaintiff has not properly

10

exhausted the administrative remedies for his claims against

11

Wilson, Defendants argue the allegations should be dismissed.

12

at 8.)

13

a.

(Id.

Failure to Provide a Medically-Prescribed Appliance

14

According to Defendants, “In his First Amended Complaint,

15

Plaintiff admits that the inmate grievance he filed related only to

16

the lack of medical care:

17

care.’”

18

(quoting Am. Compl. 17, ECF No. 5).)

19

grievance alleging that Drs. Ridge and Martinez failed to examine

20

Plaintiff would not have put the prison on notice of a claim

21

against Correctional Officer Wilson for taking Goolsby’s walker.

22

(Id. at 8.)

23

be considered to have indirectly addressed Plaintiff’s walker[]

24

claim against Defendant Wilson.”

25

‘I filed a (602) for lack of medical

(Mot. Dismiss Attach. #1 Mem. P. & A. 1, ECF No. 13.
Defendants contend that the

Defendants state, “Thus, the inmate grievance cannot

(Id.)

Defendants also argue that Plaintiff’s original Complaint

26

mentioned only one grievance as well, and that grievance merely

27

challenged Defendants Ridge and Martinez’s alleged failure to

28

provide adequate medical care.

(Id. at 2 (citing Compl. 12, ECF

13

09cv02654 WQH(RBB)

1

No. 1).)

2

original Complaint that Goolsby filed on November 23, 2009.

3

at 1-2 (citing Andrews v. Metro North Communter R. Co., 882 F.2d

4

705, 707 (2nd Cir. 1989) (quoting White v. Acro/Polymers, Inc., 720

5

F.2d 1391, 1396 n.5 (5th Cir. 1983))); see Compl. 1, ECF No. 1; Am.

6

Compl. 1, ECF No. 5.)

7

Goolsby’s initial Complaint for failing to state a claim; Plaintiff

8

filed this Amended Complaint on March 24, 2010.

9

No. 4; Am. Compl. 1, ECF No. 5.)

10

To that end, Defendants ask the Court to consider the
(Id.

On March 9, 2010, the Court dismissed

(Order 6-7, ECF

“[W]hen a plaintiff files an amended complaint, ‘[t]he amended

11

complaint supercedes the original, the latter being treated

12

thereafter as non-existent.’”

13

1006 (9th Cir. 2010) (citing Loux v. Rhay, 375 F.2d 55, 57 (9th

14

Cir. 1967)).

15

orders, unless amended, are considered judicial admissions

16

conclusively binding.”

17

861 F.2d 224, 226 (9th Cir. 1988) (emphasis added).

18

Goolsby’s Amended Complaint supercedes the initial Complaint, and

19

the Court will consider the factual assertions in the Amended

20

Complaint when analyzing whether Plaintiff exhausted his remedies.

21

See Rhodes, 621 F.3d at 1006; see also American Title Ins. Co., 861

22

F.2d at 226.

23

Rhodes v. Robinson, 621 F.3d 1002,

“[F]actual assertions in the pleading and pretrial

American Title Ins. Co. v. Lacelaw Corp.,
Accordingly,

In his Opposition, Plaintiff maintains that he submitted a

24

grievance asking to be examined by a physician, which indirectly

25

exhausted his claim that Defendant Wilson took Goolsby’s walker

26

because the grievance was intended to aid him in retrieving his

27

walker.

28

his walker back, he would have to see a doctor, who would then have

(See Opp’n 2, ECF No. 17.)

14

Plaintiff contends that to get

09cv02654 WQH(RBB)

1

to reissue a walker to Goolsby.

2

explains:

3
4
5
6

(Id.; see id. at 3.)

Plaintiff

I could have appealed C. Wilson directly, but that
at best would only of [sic] reprimanded C. Wilson. My
chief concern at the time wasn’t punishing C. Wilson but
getting to see the doctor to get my walker, medication
and tests ordered as was badly needed. Theref[o]re the
602 appeal I filed exhausted count 2. As the action
requested was the keystone to the walker.

7

(Id. at 2.)

8

by a physician exhausted his claim against Defendant Wilson for

9

taking Goolsby’s walker.

Goolsby asserts that his appeal requesting to be seen

(Id.)

10

When ruling on Defendants’ Motion to Dismiss, the Court may

11

“look beyond the pleadings and decide disputed issues of fact.”

12

Wyatt, 315 F.3d at 1119-20 (citing Ritza, 837 F.2d at 369).

13

Although Goolsby did not provide a copy of any administrative

14

grievance with his Opposition, Defendants submitted a copy of the

15

grievance as an exhibit to the Declaration of J. Rivera, a health

16

care appeals coordinator at Donovan.4

17

Decl. Rivera Ex. B, at 8-9, ECF No. 13.)

18

as follows:

19
20
21
22
23
24
25
26

(Mot. Dismiss Attach. #2
Plaintiff’s appeal reads

A. Describe Problem: On December 16th 2008 I arrived at
Richard J. Donovan from downtown county jail with a
bruised neck, damaged lower back, a torn rotator cuff and
gastronomical issues. For those debilitating medical
ailments, I was prescribed Metamucil, Prilosec, Morphine,
[Dicyclomine], Neurotin, and [Flexeril]! To date I’ve
yet to see a doctor and all my medication has been
stopped except for Prilosec and a fiber pill. I’m in
excruciating pain, and all my requests for medical
attention has been ignored. I’ve submitted 3 medical
requests without response.
B. Action Requested: To be evaluated by a licensed
doctor as per Title 15 upon new appeal. I’m being
subjected to cruel and unusual punishment.

27
28

4

The Court will also cite to this Declaration using the page
numbers assigned by the electronic case filing system.
15

09cv02654 WQH(RBB)

1

(Id. Ex. B, at 9.)

2

declarations of appeals coordinators who confirm that Goolsby only

3

filed one grievance while incarcerated at Donovan and did not file

4

any grievance against Correctional Officer Wilson.

5

Rivera 2 (citing id. Ex. A); id. Attach. #3 Decl. Cobb 2.)

6

Additionally, Defendants attach the

(Id. Decl.

“Prisoners need comply only with the prison’s own grievance

7

procedures to properly exhaust . . . .”

Griffin v. Arpaio, 557

8

F.3d 1117, 1119 (9th Cir. 2009) (citing Jones, 549 U.S. at 218

9

(2007)).

Indeed, “exhaustion is not per se inadequate simply

10

because an individual later sued was not named in the grievances.”

11

Jones, 549 U.S. at 219.

12

Complaint, California prison regulations required inmates to lodge

13

administrative appeals that “describe[d] the specific issue under

14

appeal and the relief requested.”

15

3084.2(a).

16

incomplete as to factual specificity, ‘a grievance suffices if it

17

alerts the prison to the nature of the wrong for which redress is

18

sought.’”

19

F.3d 646, 650 (7th Cir. 2002)).

20

grievance is to notify the prison of a problem and facilitate its

21

resolution, not to lay groundwork for litigation.”

22

At the time Plaintiff filed his Amended

Cal. Code Regs. tit. 15, §

“[W]hen a prison's grievance procedures are silent or

Griffin, 557 F.3d at 1120 (quoting Strong v. David, 297
“The primary purpose of a

Id.

Both Plaintiff and the Defendants cite to Morton v. Hall, 599

23

F.3d 942 (9th Cir. 2010).

(Mot. Dismiss Attach. #1 Mem. P. & A. 7-

24

8, ECF No. 13; Opp’n 2, ECF No. 17.)

25

argued that the grievance he submitted regarding the denial of

26

visitation rights exhausted his assault claim because both claims

27

arose out of the “same facts and circumstances.”

28

at 945-46.

In Morton, the plaintiff

Morton, 599 F.3d

The Ninth Circuit held that the denial of visitation

16

09cv02654 WQH(RBB)

1

challenge did not exhaust the assault allegation.

2

court reasoned that the prison was not put on notice of the assault

3

claim because the original grievance did not mention the assault or

4

theorize that the two claims were related.

5

Id. at 946.

The

Id.

Here, Goolsby similarly did not mention Correctional Officer

6

Wilson or the confiscation of Plaintiff’s walker in his grievance,

7

and Goolsby did not make clear that his request to be “evaluated by

8

a licensed doctor” was related to Correctional Officer Wilson’s

9

taking of Plaintiff’s walker.

(Mot. Dismiss Attach. #2 Decl.

10

Rivera Ex. B, at 9, ECF No. 13.)

11

light most favorable to Plaintiff, Goolsby’s grievance does not

12

conform to California Code of Regulations section 3084.2(a) as it

13

relates to Defendant Wilson.

14

The grievance does not mention a walker, allege that Wilson took it

15

from Goolsby, or request any relief against Wilson.

16

Dismiss Attach. #2 Decl. Rivera Ex. B at 8-9, ECF No. 13.)

17

Plaintiff did not conform to prison policies because he did not

18

place the prison on notice of his claims against Defendant Wilson.

19

See Cal. Code Regs. tit. 15, § 3084.2(a); Griffin, 557 F.3d at

20

1120; see also Jones, 549 U.S. at 219 (noting that the purpose of

21

the exhaustion requirement is to allow prisons to address problems

22

before being subject to suit).

23

Goolsby’s claim that Wilson confiscated his walker, alleged in

24

count two of the Amended Complaint, is GRANTED.

25
26

b.

Even construing the facts in the

See Karam-Panahi, 839 F.2d at 623.

(See Mot.

Accordingly, the Motion to Dismiss

Failure to Assign Plaintiff to a Lower-tier Cell

Defendants further argue that “Plaintiff filed no grievance

27

directly addressing Correctional Officer Wilson allegedly . . .

28

assigning Plaintiff to the upper tier.”

17

(Mot. Dismiss Attach. #1

09cv02654 WQH(RBB)

1

Mem. P. & A. 7, ECF No. 13) (citation omitted).)

2

maintain that because Goolsby did not include the upper-tier cell

3

claim in his one grievance, the claim against Wilson should also be

4

dismissed for failure to exhaust.

5

Defendants

(Id. at 7.)

In his Opposition, Plaintiff does not specifically discuss

6

whether the grievance he submitted exhausted the cell assignment

7

allegation against Wilson.

8

argues, however, that “[he] was in excruciating pain and the

9

‘gatekeeper’ to [his] problems being resolved was the doctor.”

(See Opp’n 1-3, ECF No. 17.)

Goolsby

10

(Id. at 3.)

11

exhausted his upper-tier cell claim against Wilson because the

12

doctors were the persons with the power to remedy the situation.

13

See Karam-Panahi, 839 F.2d at 623 (construing pro se litigant’s

14

statements liberally).

15

It appears that Plaintiff is asserting his grievance

With regard to the upper-tier cell allegation, Goolsby’s

16

grievance does not conform to California’s grievance procedures.

17

See Cal. Code Regs. tit. 15, § 3084.2(a).

18

medical attention by a “licensed doctor” does not describe the

19

problem -– that Wilson improperly assigned Plaintiff to an upper

20

cell -– either directly or indirectly.

(See Mot Dismiss Attach. #2

21

Decl. Rivera Ex. B, at 8, ECF No. 13.)

In fact, Goolsby does not

22

even allude to any dissatisfaction with Officer Wilson or with his

23

assignment to a top-tier cell.

24

Defendant Wilson or to the failure to place Goolsby in a lower-tier

25

cell, prison officials could not have been put on notice of the

26

alleged violation.

27

Plaintiff’s claim that Wilson assigned him to an upper cell in

28

violation of the Eighth Amendment, also alleged in count two of the

(See id.)

His appeal requesting

Without reference to

See Griffin, 557 F.3d at 1120.

18

Therefore,

09cv02654 WQH(RBB)

1

Amended Complaint, is DISMISSED.

2

tit. 15, § 3084.2(a).

3

c.

4

See id. at 1119; Cal. Code Regs.

Whether Leave to Amend Should Be Given

It may no longer be appropriate to dismiss count two with

5

leave to amend if it is too late for Goolsby to properly exhaust

6

his administrative remedies.

7

prisoner would “have little incentive to comply with the system’s

8

procedural rules unless noncompliance carries a sanction.”

9

Goolsby is in that situation.

See Woodford, 548 U.S. at 95.

A

Id.

Because a grievance against

10

Defendant Wilson was not filed within fifteen working days of the

11

action being challenged, any attempt to file it now is untimely.

12

See Cal. Code Regs. tit. 15, § 3084.6(c).

13

Exceptions to the exhaustion requirement are limited.

14

Booth v. Churner, 532 U.S. at 741.

15

explained,

16

clearly enough, regardless of the relief offered through

17

administrative procedures.”

18

U.S. 140, 144 (1992)) (footnote omitted).

19

specifically mandates, exhaustion is required[.]’”

20

McCarthy, id.)

21

See

exceptions to exhaustion.

22

In Booth, the Supreme Court

“Thus, we think that Congress has mandated exhaustion

Id. (citing McCarthy v. Madigan, 503
“‘Where Congress
Id. (quoting

Booth and Woodford effectively eliminated most

Goolsby’s interaction with Defendant Wilson occurred between

23

late December, 2008, and February 11, 2009, which is more than two

24

years ago.

25

administrative remedies against Defendant Wilson for both the

26

walker confiscation and the cell assignment claims.

27

Compl. 9-10, ECF No. 5.)

28

exceptions to the exhaustion requirement, count two of Plaintiff’s

It is too late for Plaintiff to exhaust his

See id.; (Am.

Because there are no applicable

19

09cv02654 WQH(RBB)

1

Amended Complaint against Defendant Wilson is DISMISSED without

2

leave to amend for failure to exhaust.

3

B.

Sua Sponte Dismissal of Claims

4

The PLRA requires courts to review complaints filed by

5

prisoners against officers or employees of governmental entities.

6

28 U.S.C.A. §§ 1915(e)(2)(B), 1915A(b) (West 2006).

7

dismiss complaints or any portion of complaints that are frivolous

8

or malicious, that fail to state a claim, or that seek monetary

9

relief from a defendant who is immune from such relief.

10
11

Courts must

Id.;

Lopez, 203 F.3d at 1126-28 (applying § 1915(e)(2)(B)(ii)).
Section 1915(e)(2)(B)(ii) essentially “‘parallels the language

12

of Federal Rule of Civil Procedure 12(b)(6).’”

13

1127 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

14

1998)).

15

the case if “‘at any time . . . the court determines that . . . the

16

action or appeal . . . fails to state a claim on which relief may

17

be granted.’”

18

1915(e)(2)(B)(ii)) (emphasis added in Barren).

19

of review applies to a sua sponte dismissal under § 1915(e)(2)(B)

20

(ii) or a dismissal under Rule 12(b)(6) of the Federal Rules of

21

Civil Procedure.

22

(9th Cir. 2005) (citing id.).

23

Lopez, 203 F.3d at

Section 1915(e)(2)(B)(ii) requires the Court to dismiss

Barren, 152 F.3d at 1194 (quoting 28 U.S.C. §
The same standard

Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138

Although the PLRA does not include failure to exhaust as a

24

basis for screening, “that is not to say that failure to exhaust

25

cannot be a basis for dismissal for failure to state a claim.”

26

Jones, 549 U.S. at 216; see 28 U.S.C.A. § 1915(e)(2)(B)(ii).

27

complaint is subject to dismissal for failure to state a claim if

“A

28

20

09cv02654 WQH(RBB)

1

the allegations, taken as true, show the plaintiff is not entitled

2

to relief.”

3

Jones, 549 U.S. at 215.

Here, Plaintiff’s allegations indicate that Goolsby did not

4

properly exhaust his administrative remedies against Defendant

5

Wilson.

6

to Dismiss, Defendant Wilson does not explicitly move to dismiss

7

count three for failure to exhaust even though Goolsby makes

8

similar Eighth Amendment allegations against Wilson in counts two

9

and three.

See Cal. Code Regs. tit. 15, § 3084.2(a).

In the Motion

(Mot. Dismiss Attach. #1 Mem. P. & A. 14, ECF No. 13;

10

see Am. Compl. 15-16, ECF No. 5, id. Attach. #1 Mem. P. & A. 7.)

11

In both counts, Goolsby complains of Wilson’s deliberate

12

indifference to his medical needs and Wilson’s failure to protect

13

Plaintiff from excessive force.

14

Wilson’s conduct described in count two constituted a failure to

15

protect Plaintiff from “painful and unsafe activities.”

(Am.

16

Compl. 16, ECF No. 5; id. Attach. #1 Mem. P. & A. 6-7.)

The

17

actions complained of, therefore, are the same in counts two and

18

three.

19

against Defendant Wilson in count two, Goolsby is not entitled to

20

relief in count three of the Amended Complaint.

21

1915(e)(2)(B)(ii).

22

the Amended Complaint sua sponte for failure to state a claim upon

23

which relief can be granted.

24

Procedure 12(b)(6).

25

to exhaust this claim against Defendant Wilson, so it is DISMISSED

26

without leave to amend.

Goolsby argues in count three that

Because Plaintiff did not properly exhaust his claims

See 42 U.S.C. §

Therefore, the Court DISMISSES count three of

See id.; see also Fed. R. Civ.

Like count two, Plaintiff no longer has time

27
28

21

09cv02654 WQH(RBB)

1
2

C.

Failure To State a Claim
Next, Defendants Ridge and Martinez move to dismiss count one

3

of the Amended Complaint under Federal Rule of Civil Procedure

4

12(b)(6) because the allegations against them fail to state a

5

claim.

6

Courts may grant a motion to dismiss if the complaint does not

7

contain enough facts to state a claim that is “plausible on its

8

face.”

9

[is] when the plaintiff pleads factual content that allows the

(Mot. Dismiss Attach. #1 Mem. P. & A. 11, ECF No. 13.)

Bell Atl. Corp., 550 U.S. at 570.

“[F]acial plausibility

10

court to draw the reasonable inference that the defendant is liable

11

for the misconduct alleged.”

12

S.Ct. at 1949.

Ashcroft v. Iqbal, __ U.S. at __, 129

13

1.

14

Dr. Ridge seeks to dismiss the claim that he provided Goolsby

15

with inadequate medical care in violation of the Eighth Amendment.

16

(Mot. Dismiss Attach. #1 Mem. P. & A. 11, ECF No. 13.)

17

ultimately argues that the facts alleged are insufficient to state

18

a deliberate indifference claim.

19

Defendant Ridge

Ridge

(Id. at 11-12.)

The Eighth Amendment requires that inmates have “ready access
Hoptowit v. Ray, 682 F.2d 1237, 1253

20

to adequate medical care.”

21

(9th Cir. 1982).

22

the Eighth Amendment’s prohibition against cruel and unusual

23

punishment.

24

Deliberate indifference to serious medical needs consists of two

25

requirements, one objective and the other subjective.

26

F.3d at 1096; Lopez, 203 F.3d at 1132-33 (quoting Allen v. Sakai,

27

48 F.3d 1082, 1087 (9th Cir. 1995)).

28

establish a “serious medical need” by showing that “failure to

Deliberate indifference to medical needs violates

Estelle v. Gamble, 429 U.S. 97, 103 (1976).

22

Jett, 439

The plaintiff must first

09cv02654 WQH(RBB)

1

treat a prisoner’s condition could result in further significant

2

injury or the ‘unnecessary and wanton infliction of pain.’”

3

439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059

4

(9th Cir. 1991)).

5

response to the need was deliberately indifferent.”

6

McGuckin, 974 F.2d at 1060).

Jett,

“Second, the plaintiff must show the defendant’s
Id. (citing

7

With regard to the objective requirement, “[e]xamples of

8

serious medical needs include ‘[t]he existence of an injury that a

9

reasonable doctor or patient would find important and worthy of

10

comment or treatment; the presence of a medical condition that

11

significantly affects an individual’s daily activities; or the

12

existence of chronic and substantial pain.’”

13

1131 (quoting McGuckin, 974 F.2d at 1059-60).

14

Lopez, 203 F.3d at

Under the subjective element, prison officials are

15

deliberately indifferent to a prisoner’s serious medical needs when

16

they “deny, delay or intentionally interfere with medical

17

treatment.”

Hutchinson v. United States, 838 F.2d 390, 394 (9th

18

Cir. 1988).

“[T]he official must be both aware of facts from which

19

the inference could be drawn that a substantial risk of serious

20

harm exists, and he must also draw the inference.”

21

Brennan, 511 U.S. 825, 837 (1994).

22

medical malpractice, negligence, or even gross negligence, does not

23

rise to the level of a constitutional violation.

24

Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle, 429 U.S. at 105-

25

06); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

26

Farmer v.

Inadequate treatment due to

See Wilson v.

A defendant’s acts or omissions will not amount to a

27

constitutional violation unless there is reckless disregard of a

28

risk of serious harm to the prisoner.

23

Farmer, 511 U.S. at 836.

09cv02654 WQH(RBB)

1

The inmate must allege that the defendant purposefully ignored or

2

failed to respond to his pain or medical needs; an inadvertent

3

failure to provide adequate care does not constitute a violation.

4

Estelle, 429 U.S. at 105-06.

5

[the] inmate[] face[d] a substantial risk of serious harm and

6

disregard[ed] that risk by failing to take reasonable measures to

7

abate it.”

8
9

The official must have “know[n] that

Farmer, 511 U.S. at 847.

Here, as to the objective element, Goolsby claims that he was
never seen by Dr. Ridge but was under his care for “severe and

10

debilitating injuries, requiring . . . a walker and neck brace.”

11

(Am. Compl. 3, ECF No. 5.)

12

diagnosed with a torn rotator cuff, strained back and neck muscles,

13

and possible intestinal cuts.

14

the doctors at county jail had prescribed medications, a neck

15

brace, and a walker for Goolsby, and they ordered that he receive

16

several medical tests.

17

continue the medications for Plaintiff that were originally

18

prescribed by the county jail physicians “exasperated [sic]

19

[Plaintiff’s] back, neck and shoulder injuries,” and without the

20

medications, Goolsby “began to suffer.”

21

Specifically, he argues that Ridge’s failure to continue Goolsby’s

22

muscle relaxant substitute, Robaxin, “caused [him] to be virtually

23

bed ridden [sic] with muscle cramps and back and neck pain.”

24

at 7.)

25

of Dr. Ridge’s care, Goolsby “still had not been seen or had [his]

26

injuries examined,” despite being in “tremendous pain.”

27
28

Plaintiff states that he had been

(Id. at 4.)

(Id. at 4-5.)

He also alleges that

Doctor Ridge’s failure to

(Am. Compl. 6, ECF No. 5.)

(Id.

Plaintiff maintains that by the time he was transferred out

(Id.)

Plaintiff has adequately alleged injuries “that a reasonable
doctor or patient would find important and worthy of comment or

24

09cv02654 WQH(RBB)

1

treatment . . . .”

Lopez, 203 F.3d at 1131.

He has pleaded

2

sufficient facts satisfying the objective requirement that he

3

suffered from a serious medical need.

See id.

4

To succeed on an Eighth Amendment claim, however, the

5

Plaintiff must also satisfy the subjective element of deliberate

6

indifference.

7

Defendant Ridge knew he faced a substantial risk of serious harm,

8

and acted with deliberate indifference to that harm.

9

511 U.S. at 836; Estelle, 429 U.S. at 104.

10

Jett, 439 F.3d at 1096.

Goolsby must allege that

See Farmer,

Plaintiff argues that Dr. Ridge was deliberately indifferent

11

to his medical needs because Ridge “never bothered to see [him] or

12

evaluate [him] once . . . despite being informed immediately upon

13

[his] arrival of [his] serious medical issues.”

14

No. 5.)

15

prescribe medications and ensure the medical tests were performed

16

on Plaintiff amounted to deliberate indifference.

17

Opp’n 4-5, ECF No. 17.)

18

(Am. Compl. 8, ECF

Goolsby also claims that Defendant Ridge’s failure to

(See id. at 6-8;

Defendant Ridge, on the other hand, argues that his decisions

19

to alter Plaintiff’s prescriptions and allow a nurse to examine

20

Plaintiff instead of doing so himself amount to a mere difference

21

of opinion.

22

13.)

23

(Mot. Dismiss Attach. #1 Mem. P. & A. 11-12, ECF No.

In the Amended Complaint, Plaintiff asserts that when he

24

arrived at Donovan on December 16, 2008, he met with a nurse who

25

told Dr. Ridge about Goolsby’s medical appliances, medications, and

26

tests that were ordered by the physicians at county jail.

27

Compl. 5-6, ECF No. 5.)

28

by a physician “as soon as possible” to continue the care for his

(Am.

Plaintiff asked the nurse that he be seen

25

09cv02654 WQH(RBB)

1

serious injuries.

2

Dr. Ridge in front of [Plaintiff] and relayed [his] situation.”

3

(Id. at 6.)

4

sent from county jail.

5

the nurse told Plaintiff that his medications would be continued

6

for three days until he met with Ridge.

7

(Id.)

Goolsby states, “[The nurse] telephoned

Plaintiff contends the nurse had a list of the orders
(Id.)

After she explained this to Ridge,

(Id.)

On December 19, 2008, three days later, Plaintiff’s

8

medications stopped, and his injuries were exacerbated.

(Id.)

9

Goolsby submitted a request for medical attention because he still

10

had not been seen for his injuries.

11

Nurse T. Sheriff responded to the medical request by going to

12

Goolsby’s cell to discuss his condition.

13

claims that he informed nurse Sheriff of his “high levels of pain”

14

and his need to be seen by the doctor.

15

contends that he inquired about the orders for medical tests issued

16

by the doctors at county jail.

17

gave Plaintiff Tylenol for his pain and then telephoned Defendant

18

Ridge about Goolsby’s complaints.

19

that same day he randomly and without notice stopped receiving the

20

muscle relaxant substitute he had been taking since arriving at

21

Donovan.

22

“tremendous pain,” Plaintiff claims that as of December 30, 2008,

23

he had still not been seen by the doctor, so he filed another

24

request for medical attention.

25

“[a]round this time,” he was transferred out of Defendant Ridge’s

26

care.

(Id.)

(Id.)

(Id.)

On December 24, 2008,

(Id. at 7.)

(Id.)

Plaintiff

Goolsby also

He claims that Nurse Sheriff

(Id.)

According to Goolsby,

Despite being virtually bedridden and in

(Id.)

Goolsby argues that

(Id. at 8.)

27
28

26

09cv02654 WQH(RBB)

1

a.

2

Failure to Order Medication
i.

3

Contradictory Allegations

In the Motion to Dismiss, Defendant Ridge identifies factual

4

discrepancies between the original Complaint and the Amended

5

Complaint, and he argues that the Court should not consider

6

allegations in the Amended Complaint that contradict the initial

7

claims.

8

13.)

9

that his medications stopped on December 19, 2008, is contradicted

(See Mot. Dismiss Attach. #1 Mem. P. & A. 3-5, ECF No.

Specifically, Defendant Ridge asserts that Plaintiff’s claim

10

by Goolsby’s statements in the original Complaint.

11

(citing Compl. 6, ECF No. 1).)

12

Plaintiff stated in the original Complaint that Ridge continued to

13

prescribe the medications Goolsby was taking when he arrived at

14

Donovan, “except Plaintiff was prescribed Robaxin 500 mg twice a

15

day for seven days instead of Flexeril, three times a day, and one

16

of the medications, MS Contin 30 mg, was ordered for only three

17

days.” (Id. at 3-4 (citing Compl. 7-8, ECF No. 1).)

18

(Id. at 3

For example, Ridge argues that

Defendant Ridge discusses at length the factual discrepancies

19

between the two pleadings.

20

suggesting that the Court should not consider allegations in the

21

Amended Complaint that contradict those made in the original

22

Complaint, and he argues that the Court may strike the altered

23

assertions and dismiss the Amended Complaint on this basis.

24

at 3 (citing Bradley v. Chinron Corp., 136 F.3d 1317, 1324-25 (Fed.

25

Cir. 1998)).)

26

Complaint serves as an admission.

27

North Communter R. Co., 882 F.2d 705, 707 (2nd Cir. 1989)).)

(See id. at 3-5.)

He cites to case law

(Id.

Ridge also maintains that Goolsby’s original
(Id. (citing Andrews v. Metro

28

27

09cv02654 WQH(RBB)

1

But as discussed earlier, the amended complaint supercedes the

2

original complaint, and factual assertions are no longer binding

3

after they have been amended.

4

Title Ins. Co., 861 F.2d at 226.

5

factual assertions about the medications he received, contradictory

6

factual assertions in the original Complaint are not dispositive.

7

See Maloney v. Scottsdale Ins. Co., 256 F. App’x 29, 32 (9th Cir.

8

2007) (“When a complaint containing a judicial admission is

9

amended, the information admitted in the original complaint is no

10
11

Rhodes, 621 F.3d at 1006; American
Thus, because Goolsby amended his

longer conclusively established.)
Furthermore, Defendant Ridge’s suggestion that the Court may

12

strike the altered contentions and dismiss the Amended Complaint is

13

unsupported by Ninth Circuit law.

14

Mem. P. & A. 3, ECF No. 13.)

15

alternative -— even if the alternatives are mutually exclusive.”

16

PAE Gov’t Servs., Inc., v. MPRI, Inc., 514 F.3d 856, 859 (9th Cir.

17

2007).

18
19
20
21
22
23
24

(See Mot. Dismiss Attach. #1

Courts “allow pleadings in the

The court in PAE Gov’t Servs. explained:
The short of it is that there is nothing in the
Federal Rules of Civil Procedure to prevent a party
from filing successive pleadings that make inconsistent
or even contradictory allegations. Unless there is a
showing that the party acted in bad faith -— a showing
that can only be made after the party is given an
opportunity to respond under the procedures of Rule 11
-— inconsistent allegations are simply not a basis for
striking the pleading.

Id. at 860.
Defendant Ridge does not allege Plaintiff acted in bad faith.

25

Without a finding of bad faith, factual allegations in the

26

complaint “must be tested through the normal mechanisms for

27

adjudicating the merits.”

28

assertions may be evidence of bad faith, they are usually not;

Id. at 859 n.3.

28

“Though false factual

09cv02654 WQH(RBB)

1

generally, they are the result of ignorance, misunderstanding or

2

undue optimism.”

3

altered assertions or dismiss the Amended Complaint on the basis of

4

inconsistent allegations.

5
6

Id.

ii.

Therefore, the Court will not strike any

See id. at 859 n.3, 860.

Difference of Opinion

Additionally, Defendant Ridge asserts that Plaintiff fails to

7

state a claim because he “alleges a mere difference of medical

8

opinion regarding the medications Plaintiff would have liked to

9

have been given and what Plaintiff received . . . .”

(Mot. Dismiss

10

Attach. #1 Mem. P. & A. 11-12, ECF No. 13.)

11

Plaintiff received five of seven originally-prescribed medications

12

during the two weeks he spent under Dr. Ridge’s care.

13

(citing Compl. 7-8, ECF No. 1).)

14

having to switch from the stronger pain medication MS Contin to

15

Tylenol, and having to stop taking one of seven medications after

16

seven days does not show Dr. Ridge was aware of the existence of a

17

substantial risk of harm to Plaintiff, but nevertheless disregarded

18

the risk.”

19

According to Ridge,

(Id. at 11

Defendant contends, “Plaintiff

(Id.)

Although Defendant supports his proposition by citing to

20

Plaintiff’s original, superceded Complaint, Ridge’s factual

21

assertions nonetheless align with Plaintiff’s.

22

Goolsby agrees that Ridge ordered all of Plaintiff’s medications

23

listed renewed.

24

states that “[t]he attorney general makes a lot of the fact that

25

Dr. [R]idge ordered [that Plaintiff receive] neurontin (nerve

26

medication), mylicon, dicyclomine (stomach pills), metamucil

27

(stomach medicine) and prilose[c] (heart burn).”

28

Goolsby acknowledges, “Though I did receive these, just because

(Opp’n 4, ECF No. 17.)

29

In his Opposition,

Plaintiff specifically

(Id. at 6.)

09cv02654 WQH(RBB)

1

[Dr. Ridge] did ‘something’ does not allow him to escape

2

responsibility.”

(Id.)

3

Goolsby also states that three days after he arrived at

4

Donovan, his medication stopped, which exacerbated his back, neck,

5

and shoulder injuries.

6

presumably refers to Goolsby’s pain medication, MS Contin.

7

6-7; see also Mot. Dismiss Attach. #1 Mem. P. & A. 3-4, 11, ECF No.

8

13) (asserting that Ridge prescribed Plaintiff MS Contin for three

9

days on December 16, 2008, when he arrived at Donovan).

(Am. Compl. 6, ECF No. 5.)

This allegation
(Id. at

Because he

10

was not receiving his pain medications, on December 24, 2008,

11

Goolsby met with the nurse who was going to “call the doctor

12

immediately.”

13

Plaintiff that all she could give him until he met with the doctor

14

was Tylenol.

15

stopped receiving the muscle relaxant, Robaxin.

16

that his pain medication, MS Contin, stopped on December 19, 2008.

17

(Am. Compl. 7, ECF No. 5.)

(See id.)

Nurse Sheriff told

Plaintiff claims that on the same date he
(Id.)

He asserts

Goolsby contends that Defendant Ridge’s decisions to provide

18

Tylenol instead of MS Contin after three days, and to stop

19

providing a muscle relaxant substitute after seven days, amounts to

20

deliberate indifference of his medical needs.

21

No. 5.)

22

‘difference of opinion’ on a particular treatment.

23

treatment.

24

band-aid for a broken leg.”

25

(Am. Compl 6-8, ECF

Plaintiff also states, “This is not a matter of
There was no

Issuing Tylenol via the phone amounts to prescribing a
(Id. at 8.)

As previously noted, in addition to asserting a serious

26

medical need, a plaintiff must also adequately allege that the

27

defendant knew he faced a substantial risk of harm and was

28

deliberately indifferent to that harm.

30

Farmer, 511 U.S. at 836;

09cv02654 WQH(RBB)

1

Estelle, 429 U.S. at 104.

Negligent medical care is not the

2

equivalent of a constitutional violation.

3

104-05.

4

his medical service provider does not rise to the level of

5

deliberate indifference.

6

inmate disagrees with a course of treatment, “[the] prisoner must

7

show that the chosen course of treatment ‘was medically

8

unacceptable under the circumstances,’ and was chosen ‘in conscious

9

disregard of an excessive risk to [the prisoner's] health.’”

Estelle, 429 U.S. at

Moreover, a difference of opinion between an inmate and

Toguchi, 391 F.3d at 1058.

When an

Id.

10

(quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).

11

Goolsby has not alleged facts sufficient to show that

12

Defendant Ridge’s prescriptions were medically unacceptable or were

13

chosen in conscious disregard of an excessive risk to his health.

14

See id.

15

preferred different medications than those provided by Defendant.

16

(See Am. Compl. 8,11.)

17

Goolsby’s ailments, five of which lasted for the two weeks Goolsby

18

was under his care.

19

Attach. #1 Mem. P. & A. 11, ECF No. 13; Opp’n 4,6, ECF No. 17.)

20

Plaintiff preferred to continue receiving the medications initially

21

prescribed for him by other doctors and complains that Ridge’s

22

decisions to prescribe MS Contin for only three days and substitute

23

Tylenol was not a “sound professional opinion.”

24

ECF No. 5; Opp’n 6, ECF No. 17.)

25

than a disagreement with his doctor’s course of treatment.

26

Toguchi, 391 F.3d at 1058 (stating that mere disagreement does not

27

rise to the level of a violation); see also Gauthier v. Stiles, No.

28

09-56096, 2010 U.S. App. Lexis 22523 (9th Cir. Oct. 29, 2010)

Plaintiff has only provided facts indicating that he

Ridge prescribed seven medications to treat

(See Am. Compl. 6-7, ECF No. 5; Mot. Dismiss

(See Am. Compl. 6,

Goolsby has alleged nothing more

31

See

09cv02654 WQH(RBB)

1

(citing Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir.1998))

2

(“[A]lleged delays in administering pain medication, without more,

3

do not constitute deliberate indifference.”).

4

Plaintiff may have alleged a claim for negligence, but he has

5

failed to allege an Eighth Amendment claim against Ridge for

6

failing to prescribe Goolsby’s medication of choice.

7

b.

8
9

Accordingly,

Failure to Examine Plaintiff

Goolsby also contends that Dr. Ridge’s failure to examine him
constitutes deliberate indifference to his medical needs.

(Am.

10

Compl. 11, ECF No. 5.)

11

his serious medical problems by a nurse who examined Goolsby, and

12

Plaintiff sent repeated written requests for medical attention to

13

Ridge.

14

of his injuries, Defendant Ridge allowed nurses to examine Goolsby

15

on two occasions, but he never examined Plaintiff himself.

16

6-8.)

17

(Id. at 6, 8.)

Plaintiff argues that Ridge was notified of

Plaintiff claims that despite being aware

(Id. at

In the Motion to Dismiss, Ridge argues that, while in his

18

care, Plaintiff received five of the seven previously prescribed

19

medications and was seen by a nurse who gave Goolsby Tylenol for

20

the pain.

21

13.)

22

Plaintiff during the two weeks Plaintiff was in his care does not

23

show Dr. Ridge disregarded a known risk to Plaintiff’s health.”

24

(Id. at 11.)

25

difference of opinion regarding whether he should have been seen by

26

Doctor Ridge, as opposed to a nurse.

27

differences of medical opinion between an inmate and a physician

(Mot. Dismiss Attach. #1 Mem. P. & A. 11-12, ECF No.

“Therefore, that Dr. Ridge did not personally examine

Ridge maintains that Goolsby merely alleges a

(Id. at 11-12.)

Because

28

32

09cv02654 WQH(RBB)

1

are insufficient to state a claim, Defendant argues that Goolsby’s

2

allegations against him should be dismissed.

3

(See id. at 12.)

In response, Plaintiff asserts that when he arrived at

4

Donovan, he was interviewed by a nurse who notified Ridge of

5

Goolsby’s medical condition, and the nurse told Plaintiff that he

6

would be seen by Ridge within three days.

7

see also Am. Compl. 5-6, ECF No. 5.)

8

problem, and the crux of my case is Dr. Ridge never examined

9

me . . . .”

(Opp’n 4-5, ECF No. 17.)

(Opp’n 4, ECF No. 17;

Goolsby contends, “The

Plaintiff argues that for

10

Ridge to assert a difference of opinion, he must have first

11

properly formulated an opinion after a medical evaluation.

12

5.)

13

pertaining to Goolsby consisted of two sheets of paper from county

14

jail -- a list of medications and a transfer summary.

15

id. Attach. #1 Ex. F, at 26-28.)

16

had none of his other medical files.

17

that “Dr. Ridge simply ignored [Plaintiff] knowing of [his]

18

injuries, disregarding them and hoping [he] would go away.”

19

Because Defendant Ridge never personally evaluated Plaintiff,

20

Goolsby asserts the subjective element is met.

21

(Id. at

Plaintiff complains that the extent of Ridge’s information

(Id. at 4;

Plaintiff maintains that Ridge
(Id. at 5.)

Goolsby states

(Id.)

(Id.)

Goolsby, however, does not have the constitutional right to be

22

personally examined by a doctor while incarcerated.

23

Scalzo, No. CV 04-1687-PHX-DGC(CRP), 2008 U.S. LEXIS 40782, at *25

24

(D. Ariz. May 21, 2008) (“Generally, a prison's practice of using

25

nurses, instead of doctors, for primary medical treatment does not

26

constitute a policy or custom that violates the Constitution.”);

27

Corley v. Prator, No. 06-0392, 2007 U.S. Dist. LEXIS 74599, at *12

28

(W.D. La. Oct. 4, 2007 (same)); Callaway v. Smith County, 991 F.

33

See Benge v.

09cv02654 WQH(RBB)

1

Supp. 801, 809 (D. Tex. 1998) (stating because the plaintiff was

2

seen by nurses and not a physician does not violate the

3

Constitution); see also Hayes v. Smith, No. CV04-620-S-EJL, 2007

4

U.S. Dist. LEXIS 61306, at *15 (D. Idaho Aug. 21, 2007) (finding

5

that a physician's assistant was available to examine the prisoner

6

and that the inmate was not entitled to select the medical care

7

provider of his choice).

8
9

Plaintiff’s contention that Dr. Ridge’s failure to examine
Goolsby constituted deliberate indifference cannot withstand the

10

Motion to Dismiss.

11

all seven of Goolsby’s medications.

12

Plaintiff was seen and treated by a nurse at least twice during the

13

fourteen days he was under Ridge’s care.

14

No. 5.)

15

the nurse prescribed him the pain reliever Tylenol.

16

Goolsby’s contention that Ridge is liable because he did not

17

examine Plaintiff himself is insufficient to state a claim.

18

Benge, 2008 U.S. Dist. LEXIS 40782, at *25; Corley, 2007 U.S. Dist.

19

LEXIS 74599, at *12.

20

Ridge renewed

(Opp’n 4, ECF No. 17.)

Also,

(See Am. Compl. 5-7, ECF

When Plaintiff requested medical attention for his pain,

c.

21
22

(See Am. Compl. 11, ECF No. 5.)

(Id. at 7.)

See

Failure to Order Medical Tests Previously Ordered by
Doctors at County Jail

Plaintiff also argues that Defendant Ridge was deliberately

23

indifferent to his medical needs because Defendant failed to ensure

24

that medical tests ordered by doctors at county jail were performed

25

on Goolsby.

26

that Dr. Ridge failed to order an MRI, a colonoscopy, an endoscopy,

27

and failed to follow up with an orthopedic surgeon.

(Am. Compl. 11, ECF No. 5.)

Specifically, he claims

(Id.)

28

34

09cv02654 WQH(RBB)

1

Defendant Ridge, on the other hand, argues that this, too, was

2

a mere difference of opinion.

3

states:

4
5
6
7
8
9
10

(Reply 4, ECF No. 18.)

Ridge

Whether Plaintiff needed the MRI and the endoscopy/
colonoscopy procedures while he was passing through R. J.
Donovan Correctional Facility or whether these procedures
could wait until after Plaintiff was transferred to
another prison, was a matter of medical opinion given
that, while at county jail, Plaintiff had been medically
examined, had received several tests, and had been
considered healthy enough to be released, rather than
immediately being given these procedures.
(Id. at 5.)
Prison officials act with deliberate indifference when they

11

“intentionally interfer[e] with . . . treatment once prescribed.”

12

Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (quoting

13

Estelle, 429 U.S. at 104-05).

14

prison official deliberately ignores explicit orders of the

15

inmate’s previous doctor for reasons not related to the prisoner’s

16

medical needs.

17

1066-67 (9th Cir. 1992) (holding that such intentional interference

18

could be found when prison official forced an inmate to fly on an

19

airplane, in violation of the prison physician’s orders)).

20

A violation may be found when a

Id. (citing Hamilton v. Endell, 981 F.2d 1062,

“But the question whether an X-ray — or additional diagnostic

21

techniques or forms of treatment — is indicated is a classic

22

example of a matter for medical judgment.

23

to order an X-ray, or like measures, does not represent cruel and

24

unusual punishment.”

25

constitutes medical malpractice.

26

A medical decision not

Estelle, 429 U.S. at 107.

At most, this

(Id.)

Plaintiff’s Amended Complaint does not allege facts showing

27

that Dr. Ridge acted with deliberate indifference by not ensuring

28

that medical tests for Goolsby, previously ordered by physicians at

35

09cv02654 WQH(RBB)

1

county jail, were conducted.

2

reason for not having the medical procedures performed while

3

Goolsby was “passing through R.J. Donovan Correctional Facility” on

4

his way to another prison.

5

Ridge asserts that “whether these procedures could wait until after

6

Plaintiff was transferred to another prison, was a matter of

7

medical opinion . . . .”

8
9

Defendant Ridge, however, offers one

(Reply 5, ECF No. 18.)

In his Reply,

(Id.)

But deliberate indifference may be adequately alleged where a
physician pursues a treatment plan that was not “derive[d] from

10

sound medical judgment.”

11

(2d Cir. 1998).

12

doctors recommended a course of treatment, “not on the basis of

13

their medical views, but because of monetary incentives.”

14

704.

15

Chance v. Armstrong, 143 F.3d 698, 703-04

In Chance, the plaintiff had alleged that two

Id. at

This was sufficient to allege deliberate indifference.
Similarly, in Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.

16

1986), the plaintiff alleged that he was told that he would not

17

receive the necessary treatment because the county had a “tight

18

budget.”

19

record than the budget concerns for denying Jones’s surgery.

20

Budgetary constraints, however, do not justify cruel and unusual

21

punishment.”

22

diagnostic tests requested by the treating physicians.”

23

Elyona, No. 96 C 4521, 1997 U.S. Dist. LEXIS 1464, at *7 (N.D. Ill.

24

Feb. 13, 1997).

25
26
27
28

The court noted, “We find no other explanation in the

Id.

In another case, one doctor “nixed the
Goring v.

Goring insinuates that Dr. Elyea based his decision not
to follow through on the request for further diagnostic
measures recommended by Dr. Doe on fiscal rather than
medical concerns. Denial of necessary care for a serious
medical condition because of budgetary constraints may
give rise to a colorable claim under the Eighth
Amendment. The reasons for Elyea’s decision are not
disclosed in the limited record before the court.
36

09cv02654 WQH(RBB)

1

Id. (internal citation omitted).

2

claim against Dr. Elyea.

3

The court declined to dismiss the

Here, Goolsby alleges that Defendant Ridge failed to perform

4

medical tests ordered by county jail doctors, even though Plaintiff

5

informed Nurse Sheriff that he was “in high levels of pain” and his

6

shoulder, back, and neck injuries were worsening.

7

ECF No. 5.)

8

should be seen as soon as possible.

9

nurse placed the call, Goolsby’s muscle relaxant substitute

(Am. Compl. 7,

The nurse called Dr. Ridge to tell him that Goolsby
(Id.)

On the same day the

10

medication “just stopped.”

11

progressively degenerative condition that is potentially dangerous

12

and painful if left untreated may constitute deliberate

13

indifference.”

14

cv-1582 (RNC), 2008 U.S. Dist. LEXIS 106854, at *10, (D. Conn. Jan.

15

30, 2008).

16

(Id.)

“Refusing to treat a

Jolley v. Correctional Managed Health Care, 3:04-

Plaintiff has not asserted facts demonstrating that Ridge

17

failed to order the tests for improper reasons unrelated to

18

Plaintiff’s medical needs.

19

Hamilton, 981 F.2d at 1066-67.

20

Ridge had control over when and how such tests were administered on

21

inmates.

22

to provide evidence that either doctor was responsible for the

23

delayed scheduling of diagnostic examinations or that either

24

hindered performance of the examinations); see also Leer v. Murphy,

25

844 F.2d 628, 633 (9th Cir. 1988) (noting that whether a

26

defendant’s acts or omissions caused a violation depends on the

27

specific duties and responsibilities of the particular defendant);

28

Bovarie v. Schwarzenegger, No. 08cv1661-LAB(NLS), 2010 U.S. Dist.

See Wakefield, 177 F.3d at 1165;
Nor has Goolsby alleged that Dr.

See McGuckin, 974 F.2d at 1062 (noting petitioner failed

37

09cv02654 WQH(RBB)

1

LEXIS 28004, at *12-13 (S.D. Cal. Mar. 22, 2010) (same).

2

more, Goolsby’s assertion that Ridge’s failure to order diagnostic

3

tests constituted deliberate indifference is insufficient to state

4

a claim.

5

Without

See Estelle, 429 U.S. at 107.

Although Plaintiff has sufficiently pleaded a serious medical

6

need, he has not asserted facts sufficient to show that Ridge was

7

deliberately indifferent to Goolsby’s medical needs in violation of

8

the Eighth Amendment.

9

Plaintiff’s claims against Defendant Ridge in count one of the

10

See Jett, 439 F.3d at 1096.

Accordingly,

Amended Complaint are DISMISSED.

11

Courts must give a plaintiff leave to amend an allegation

12

unless he could not possibly cure the claim by asserting other

13

facts.

14

plaintiff should not be granted the opportunity to amend when doing

15

so would be futile.

16

alleged suggest that Goolsby is able to state a claim, plausible on

17

its face, that Dr. Ridge knowingly refused to treat Plaintiff’s

18

serious medical needs and administer necessary diagnostic tests in

19

violation of the Eighth Amendment.

20

Dismiss is granted with leave to amend.

21

1127.

Lopez, 203 F.3d at 1127 (quoting Doe, 58 F.3d at 497).

See James, 221 F.3d at 1077.

A

The facts

For this reason, the Motion to
See Lopez, 203 F.3d at

22

2.

Defendant Martinez

23

Plaintiff asserts that in late December 2008, he was

24

transferred to a different building at Donovan, “ad-seg building

25

#7,” and into the care of Doctor Martinez.

26

5.)

27

improperly took his walker from him and forced Plaintiff to live on

28

the second tier, requiring that he climb stairs to get to his cell.

(Am. Compl. 9, ECF No.

Goolsby claims that upon his arrival, Defendant Wilson

38

09cv02654 WQH(RBB)

1

(Id.)

According to Goolsby, this caused the injuries to his

2

shoulder, back, and neck to “considerably worsen,” and caused him

3

to lie in his bed in “agonizing pain.”

(Id.)

Plaintiff contends that on January 5, 2009, he filed a request

4
5

to be seen by Dr. Martinez for his pain.

(Id.)

6

2009, Goolsby filed a request for medical attention because

7

Martinez was “ignoring [Plaintiff] and refusing to examine [him]

8

and treat [his] serious and deteriorating medical needs.”

9

10.)

On January 11,

(Id. at

Goolsby maintains that two nurses, McArthur and Sanchez,

10

visited him on January 12, 2009.

11

[sic] that [he] hadn’t been seen yet.

12

Martinez and told him of all [Goolsby’s] injuries.

13

[Plaintiff he] would be seen on the next Dr. line[] (list of

14

inmates seen every week).”

15

walker be returned to him and that he be given pain and nerve

16

medication.

17

physician could prescribe these items, and Goolsby would have to

18

wait to see one.

19

offered him Tylenol, but he never received it.

20

(Id.)

(Id. at 9.)

(Id.)

“They were apalled

A. Sanchez called Dr.
She then told

Plaintiff requested that his

Nurse Sanchez told Plaintiff that only a

(Id. at 9-10.)

According to Plaintiff, the nurse
(Id. at 10.)

On January 22, 2009, Goolsby saw Defendant Martinez enter the
(Id.)

Plaintiff prepared another grievance and gave it

21

building.

22

to Correctional Officer Gamble to hand deliver to Dr. Martinez.

23

(Id.)

24

need for treatment and tests.

25

watched Officer Gamble give the grievance to Defendant Martinez.

26

(Id.)

27

who then returned it to Plaintiff.

28

Dr. Martinez had told him, “‘I know all about him (referencing

In the grievance, Goolsby explained his injuries and his
(Id.)

Plaintiff claims that he

Goolsby watched Martinez read it and give it back to Gamble,

39

(Id.)

Gamble told Goolsby that

09cv02654 WQH(RBB)

1

Goolsby) and his complaints, but I don’t deal with whiners, give

2

this back to him.’”

3

transferred from Donovan to California Correctional Institution in

4

Tehachapi, California, on February 11, 2009, without having been

5

seen by Dr. Martinez.

6

(Id.)

Finally, Goolsby asserts that he was

(Id.)

To state a claim for deliberate indifference under the Eighth

7

Amendment, Plaintiff must allege a serious medical need and

8

deliberate indifference to that need.

9

Lopez, 203 F.3d at 1132-33.

Jett, 439 F.3d at 1096;

Goolsby has alleged a serious medical

10

condition while under the care of Dr. Ridge.

11

he had a similarly serious medical need while under Dr. Martinez’s

12

care.

13

Martinez prescribed Plaintiff pain and nerve medication.

14

Opp’n 6, ECF No. 17.)

15

condition worthy of medical attention.

16

satisfy the objective element.

17

(See Am. Compl. 8-11, ECF No. 5).

Plaintiff argues that

According to Goolsby,
(See

This suggests that Plaintiff had a medical
Goolsby’s allegations

See Lopez, 203 F.3d at 1131.

As for the subjective element, Plaintiff asserts that despite

18

his knowledge of Goolsby’s ailments, Dr. Martinez failed to order

19

medication, examine him, and ensure that the tests ordered by the

20

physicians at county jail were performed.

21

5.)

22

deliberate indifference to his medical needs.

23
24

(Am. Compl. 11, ECF No.

Plaintiff argues that these omissions rise to the level of

a.

(Id.)

Failure to Order Medication

In the Motion to Dismiss, Dr. Martinez cites Plaintiff’s

25

original Complaint and contends that although he did not examine

26

Goolsby, “each time he was contacted by nurse Sanchez, he

27

prescribed pain medication for Plaintiff — albeit not the narcotic

28

Plaintiff would have preferred — and on one of the contacts also

40

09cv02654 WQH(RBB)

1

prescribed Robaxin.”

2

No 13.)

3

doctor argues that Plaintiff has not presented facts showing

4

Martinez was aware of a substantial risk of harm to Goolsby and

5

disregarded that risk.

6

Plaintiff’s medical need.

7

different course of treatment, a difference in opinion is not

8

actionable.

9

(Mot. Dismiss Attach. #1 Mem. P. & A. 12, ECF

Dr. Martinez prescribed Tylenol for Goolsby, but the

(Id.)

Defendant states he responded to

(Id.)

Even if Goolsby preferred a

(Id. (citing Jackson, 90 F.3d at 332).)

Plaintiff responds by arguing that Martinez was aware of his

10

injuries and pain, based on the list of medications prescribed for

11

Goolsby while he was at county jail as well as his transfer

12

summary.

13

“made the inference” that not providing Plaintiff with medication

14

would cause him severe pain.

15

medication; still, he contends that Dr. Martinez cannot escape

16

liability merely because he did “something.”

17

Additionally, Plaintiff maintains that Martinez’s refusal to accept

18

the grievance that was hand delivered by Correctional Officer

19

Gamble evidences Dr. Martinez’s conscious disregard of Goolsby’s

20

medical needs.

21

Goolsby’s requests for medical care and the phone calls from the

22

nurses provided Martinez with further notice of Plaintiff’s serious

23

medical needs.

24

(Opp’n 5, ECF No. 17.)

Goolsby speculates that Martinez

(Id.)

Goolsby received some

(Opp’n 7, ECF No. 17.)

(Id. at 6.)

Plaintiff also argues that

(Id.)

Plaintiff maintains that Doctor Martinez did even less to

25

treat him than Doctor Ridge because Martinez only ordered Tylenol

26

and nerve medication.

27

at 227.

28

considered admissions of the party in the discretion of the

(Id.); see American Title Ins. Co, 861 F.2d

(“[S]tatements of fact contained in a brief may be

41

09cv02654 WQH(RBB)

1

district court.”)

Goolsby argues that Doctor Martinez cannot be

2

given “credit” for the medications the nurses gave him because they

3

were only to provide him with temporary relief until he saw

4

Martinez.

5

Tylenol he received was inadequate.

6

shooter against an M1 tank. Yes, a pea shooter is a weaopon [sic]

7

but redicuosly [sic] inadequate given the situation.”

(Opp’n 6, ECF No. 17.)

According to Plaintiff, the
“It was like using a pea

(Id. at 7.)

8

Plaintiff must allege that Martinez knew Goolsby faced a

9

substantial risk of harm and was deliberately indifferent to that

10

harm.

11

Plaintiff, has not shown that Defendant Martinez’s course of

12

treatment was medically unacceptable.

13

1058.

14

severity of the injuries; therefore, the failure to prescribe more

15

appropriate medications amounts to deliberate indifference to his

16

medical needs.

17

See Farmer, 511 U.S. at 836; Estelle, 429 U.S. at 104.

See Toguchi, 391 F.3d at

Goolsby claims that Tylenol was not appropriate for the

(See Am. Compl. 10-11, ECF No. 5.)

Martinez responded to Plaintiff’s requests by ordering Tylenol

18

and nerve medication.

19

may have desired a stronger pain medication, a difference of

20

opinion is not a constitutional violation.

21

332.

22

alternative courses of treatment, a prisoner must show that the

23

chosen course of treatment ‘was medically unacceptable under the

24

circumstances,’ and was chosen ‘in conscious disregard of an

25

excessive risk to [the prisoner’s] health.’”

26

1058 (quoting Jackson, 90 F.3d at 332) (alteration in original).

27
28

(Opp’n 6, ECF No. 17.)

Although Plaintiff

See Jackson, 90 F.3d at

Furthermore, “to prevail on a claim involving choices between

Toguchi, 391 F.3d at

Plaintiff has not alleged sufficient facts to state a claim,
plausible on its face, that Martinez’s course of treatment was

42

09cv02654 WQH(RBB)

1

chosen in conscious disregard of an excessive risk to Plaintiff’s

2

health.

3

from county jail do not indicate that the medications and

4

procedures Goolsby desired were necessary to avoid an excessive

5

risk to his health.5

6

Notes on the medical encounter form, entered on December 15, 2008,

7

the day before Goolsby arrived at Donovan, stated that he “appears

8

to be doing well, [patient] going to prison this week and [work up

9

and follow up at] prison clinic.”

See Toguchi, 391 F.3d at 1058.

Goolsby’s medical records

(Opp’n Attach. #1 Ex. A, at 3, ECF No. 17.)

The health information transfer

10

summary form and Plaintiff’s patient profile, which lists

11

medications, do not suggest that Defendant Martinez knew of an

12

excessive risk to Plaintiff’s health but disregarded that risk.

13

(See id. Ex. F, at 27-28); Farmer, 511 U.S. at 836.

14

Because Goolsby has not alleged sufficient facts to indicate

15

that the course of treatment was medically unacceptable or was

16

chosen in conscious disregard of a serious risk to Goolsby’s

17

health, Plaintiff’s assertions do not state a claim that Dr.

18

Martinez was deliberately indifferent.

19

b.

Failure to Examine Plaintiff

20

Goolsby also claims that despite his requests for medical

21

attention, Dr. Martinez failed to examine him, and this constitutes

22

deliberate indifference.

23
24

(Am. Compl. 11, ECF No. 5.)

Defendant Martinez maintains that although he did not
personally examine Plaintiff, he responded to Plaintiff’s requests

25
5

26
27
28

The Court may consider the medical records Plaintiff
attached to his Opposition because his injuries were referenced in
the Amended Complaint. (See Am. Compl. 4-5, ECF No. 5); In re Stac
Elecs. Sec. Litig., 89 F.3d 1399, 1405 n.4 (9th Cir. 1996) (noting
that documents whose contents are alleged in the complaint and
whose authenticity no party questions may be considered in
connection with a motion to dismiss).
43

09cv02654 WQH(RBB)

1

by prescribing pain medication.

2

P. &. A. 12, ECF NO. 13.)

3

responded to Plaintiff’s medical condition, Plaintiff’s complaint

4

that he did not examine Goolsby is a difference in medical opinion.

5

(Id. (citing Jackson, 90 F.3d at 332).)

6

(See Mot. Dismiss Attach. #1 Mem.

Martinez suggests that because he

As explained above, Plaintiff does not have a constitutional

7

right to be personally examined by a physician while incarcerated.

8

See Benge, 2008 U.S. Dist. LEXIS 40782, at *25; Callaway, 991 F.

9

Supp. at 809.

Deliberate indifference requires that Defendant

10

Martinez purposefully ignored or failed to respond to Goolsby’s

11

medical needs.

12

prescribed Plaintiff pain and nerve medication; the Defendant did

13

not ignore Goolsby’s pain.

14

974 F.2d at 1060.

15

sufficient to state a deliberate indifference claim against

16

Martinez for his failure to personally examine him.

17

c.

18

McGuckin, 974 F.2d at 1060.

Dr. Martinez

(See Opp’n 6, ECF No. 17); McGuckin,

Plaintiff has also failed to allege facts

Failure to Order Medical Tests Previously Ordered by
Doctors at County Jail

19

Finally, like his claim against Dr. Ridge, Goolsby argues that

20

Dr. Martinez did not ensure the medical tests ordered by doctors at

21

county jail were performed on Goolsby.

22

He asserts the Defendant should have ordered the MRI, colonoscopy,

23

and endoscopy.

24

this was a difference of opinion.

25

According to the Defendant, whether Goolsby needed the tests

26

performed while he was passing through Donovan or whether they

27

could wait was a medical judgment.

(Id.)

(Am. Compl. 11, ECF No. 5.)

In response, Doctor Martinez again contends
(Reply 4-5, ECF No. 18.)

(Id. at 5.)

Martinez notes

28

44

09cv02654 WQH(RBB)

1

that county jail physicians deemed Plaintiff healthy enough to be

2

transferred to Donovan before the tests were performed.

3

(Id.)

Goolsby alleges that he was transferred to building #7, and

4

Dr. Martinez’s care, in late December 2008.

(Am. Compl. 9, ECF No.

5

5.)

6

Martinez, so Goolsby drafted an inmate grievance outlining his need

7

of medical treatment.

8

grievance, the doctor responded, “‘I know all about him

9

(referencing Goolsby) and his complaints, but I don’t deal with

By January 22, 2009, Plaintiff still had not been seen by Dr.

(Id. at 10.)

When he was handed the

10

whiners, give this [the grievance] back to him.’” (Id.)

11

February 11, 2009, Goolsby was transferred from Donovan, but he

12

still had not been seen by Dr. Martinez.

13

On

(Id.)

Prison officials act with deliberate indifference when they

14

intentionally interfere with medical treatment previously

15

prescribed.

16

U.S. at 104-05).

17

are necessary is a matter of medical judgment.

18

at 107.

19

that Dr. Martinez failed to see to it that the medical tests

20

ordered by physicians treating Goolsby at county jail were

21

performed can amount to a callous disregard of a previous

22

physician’s orders.

23

See Wakefield, 177 F.3d at 1165 (quoting Estelle, 429
Generally, whether additional diagnostic tests
Estelle, 429 U.S.

Like his claim against Dr. Ridge, Goolsby’s allegation

See Wakefield, 177 F.3d at 1165.

Although implied, Plaintiff does not allege that Defendant

24

Martinez failed to order the tests for any reasons other than

25

medical ones.

26

over the scheduling and administration of diagnostic tests.

27

McGuckin, 974 F.2d at 1062.

28

not to immediately order the tests based upon medical judgment fail

Id.

Goolsby has not asserted Martinez had control
See

Allegations that Dr. Martinez chose

45

09cv02654 WQH(RBB)

1

to state a claim.

See Wakefield, 177 F.3d at 1165; see also

2

Magarrell v. P. Mangis, M.D., et al., No. CIV S-04-2634-LKK-DAD P,

3

2009 U.S. Dist. LEXIS 74077 (E.D. Cal. Aug, 19, 2009) (“[A]

4

difference in medical opinion between doctors does not give rise to

5

a constitutional violation.”) (citing Toguchi, 391 F.3d at 1059-60,

6

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)).

7

doctor’s decision not to pursue necessary medical treatment for

8

reasons unrelated to the exercise of sound medical judgment can

9

constitute deliberate indifference.

Even so, a

See Jones v. Johnson, 781 F.2d

10

at 771 (“Budgetary constraints . . . do not justify cruel and

11

unusual punishment.”); Chance v. Armstrong, 143 F.3d at 703-04

12

(stating that treatment should be based on “medical views,” not

13

“monetary incentives”); Goring v. Elyona, No. 96 C 4521, 1997 U.S.

14

Dist. LEXIS 1464, at *7.

15

Plaintiff has not adequately asserted facts showing that

16

Martinez was deliberately indifferent to his medical needs.

17

Accordingly, Defendant Martinez’s Motion to Dismiss Plaintiff’s

18

Eighth Amendment claim against him is GRANTED.

19

may be cured by amendment, Goolsby is given leave to amend.

20

Lopez, 203 F.3d at 1127.

21

D.

22

Because this claim
See

Qualified Immunity
Doctors Ridge and Martinez contend that they are entitled to

23

qualified immunity.

(Mot. Dismiss Attach. #1 Mem. P. & A. 15, ECF

24

No. 13.)

25

their actions were unconstitutional; rather, they ‘could have

26

believed [their] actions lawful at the time they were undertaken.’”

27

(Id. (quoting Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir.

28

2009)).)

Defendants assert they “did not have fair warning that

46

09cv02654 WQH(RBB)

1

“[G]overnment officials performing discretionary functions,

2

generally are shielded from liability for civil damages insofar as

3

their conduct does not violate clearly established statutory or

4

constitutional rights of which a reasonable person would have

5

known.”

6

immunity is immunity from suit for monetary damages, but it is not

7

immunity from suit for declaratory or injunctive relief.

8

v. Hunter, 449 F.3d 978, 992 (9th Cir. 2006).

9

the plainly incompetent or those who knowingly violate the law.”

10
11

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified

Hydrick

It protects “all but

Malley v. Briggs, 475 U.S. 335, 341 (1986).
When considering a claim for qualified immunity, courts engage

12

in a two-part inquiry:

Do the facts show that the defendant

13

violated a constitutional right, and was the right clearly

14

established at the time of the defendant’s purported misconduct?

15

Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010)

16

(quoting Pearson v. Callahan, 555 U.S. 223, ____, 129 S. Ct. 808,

17

815-16 (2009)).

18

most favorable to the party asserting the injury, . . . the facts

19

alleged show the officer’s conduct violated a constitutional

20

right.”

21

other grounds by Pearson, 555 U.S. 223, 129 S. Ct. 808.

22

clearly established if the contours of the right are so clear that

23

a reasonable official would understand that what he is doing

24

violates that right.

25

standard ensures that government officials are on notice of the

26

illegality of their conduct before they are subjected to suit.

27

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier, 533 U.S.

28

at 206).

Courts consider whether, “[t]aken in the light

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on

Id. at 202 (quotation omitted).

A right is

This

“This is not to say that an official action is protected

47

09cv02654 WQH(RBB)

1

by qualified immunity unless the very action in question has

2

previously been held unlawful . . . .”

3

Id.

The Supreme Court recently found that the sequence of this

4

two-step inquiry is no longer “an inflexible requirement.”

5

Pearson, 555 U.S. at ___, 129 S. Ct. at 818.

6

the court’s discretion to decide which step to address first.

7

see Delia, 621 F.3d at 1075 (citing Brooks v. Seattle, 599 F.3d

8

1018, 1022 n.7 (9th Cir. 2010); Bull v. City & County of San

9

Francisco, 595 F.3d 964, 971 (9th Cir. 2010)).

Thus, it is within
Id.;

“If the Officers’

10

actions do not amount to a constitutional violation, the violation

11

was not clearly established, or their actions reflected a

12

reasonable mistake about what the law requires, they are entitled

13

to qualified immunity.”

14

Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007));

15

see James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010) (quoting

16

Pearson, 555 U.S. at ___, 129 S. Ct. at 816, 818).

17

Brooks, 599 F.3d at 1022 (citing

This Court has determined that Goolsby has not adequately

18

alleged that Defendants’ failure to personally examine him or

19

prescribe the medications Plaintiff preferred amounted to

20

constitutional violations.

21

against Ridge and Martinez without leave to amend.

22

claims, the inquiry may end there.

23

S. Ct. at 818 (“In some cases, a discussion of why the relevant

24

facts do not violate clearly established law may make it apparent

25

that in fact the relevant facts do not make out a constitutional

26

violation at all.”); Saucier, 533 U.S. at 201 (“If no

27

constitutional right would have been violated were the allegations

28

established, there is no necessity for further inquiries concerning

The Court has dismissed these claims

48

For these

Pearson, 555 U.S. at ___, 129

09cv02654 WQH(RBB)

1

qualified immunity.”); James, 606 F.3d at 651 (stating that courts

2

may grant immunity if the facts alleged do not make out a

3

constitutional violation).

4

The claims regarding the failure to undertake diagnostic tests

5

ordered by treating physicians at county jail are dismissed with

6

leave to amend.

7

immunity for this aspect of Plaintiff’s claims.

8

Felker, No. Civ. S-08-3158-JAM GGH P, 2009 U.S. Dist. LEXIS 114490,

9

at *10 (E.D. Cal. Dec. 9, 2009).

Accordingly, it is premature to consider qualified
See Proctor v.

Defendants Ridge and Martinez are

10

entitled to qualified immunity from liability for the claims

11

relating to their failure to personally examine Goolsby and to

12

prescribe certain medications.

13

claim for civil damages against both Defendants based on these

14

allegations is GRANTED without leave to amend.

15

Martinez’s remaining claim of qualified immunity is denied as

16

premature.

17

E.

The Motion to Dismiss Goolsby’s

Drs. Ridge’s and

Injunctive Relief

18

Plaintiff also seeks an injunction preventing defendants “from

19

denying medical care, and treatment ordered by county jails doctors

20

and medical staff, so as to prevent disruptions in inmate treatment

21

plans.

22

CDCR obtain county jail medical records on new arriving inmates.”

23

(Id.)

(Am. Compl. 18, ECF No. 5.)

Goolsby also seeks to “make

24

Defendants contend Plaintiff is not entitled to an injunction

25

because he seeks to assert the rights of other inmates without the

26

standing to do so.

27

No. 13.)

(Mot. Dismiss Attach. #1 Mem. P. & A. 16, ECF

Defendants also note that because Plaintiff is no longer

28

49

09cv02654 WQH(RBB)

1

an inmate housed at Donovan, there is no risk of continuing or

2

future violations.

3

(Id.)

Goolsby argues that he has a reasonable expectation of being

4

an inmate at Donovan again.

5

could easily be taken back to Donovan for another case.

6

all these circumstances [I] would go from SDCJ to RJD.

7

medical records would follow allowing problems in continuity of

8

care.”

9

not moot.

10

(Id. at 9.)

(Opp’n 9, ECF No. 17.)

He claims he
(Id.)

“In

None of my

Goolsby concludes that injunctive relief is

(Id.)

Injunctive relief is an equitable remedy that is appropriate

11

where the plaintiff can show he will suffer a “likelihood of

12

substantial and immediate irreparable injury" if an injunction is

13

not granted.

14

(9th Cir. 1999) (en banc) (quoting City of Los Angeles v. Lyons,

15

461 U.S. 95, 111 (1983)); see also Doran v. Salem Inn, Inc., 422

16

U.S. 922, 932 (1975).

17

Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1049

The traditional criteria for granting an injunction are:

18

“‘(1) a strong likelihood of success on the merits; (2) the

19

possibility of irreparable injury to the plaintiffs if injunctive

20

relief is not granted; (3) a balance of hardships favoring the

21

plaintiffs; and (4) advancement of the public interest.’”

22

Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir. 2001) (quoting

23

Textile Unltd., Inc. v. A.BMH & Co., 240 F.3d 781, 786 (9th Cir.

24

2001).

25

the Court examines whether “serious questions are raised and the

26

balance of hardships tips sharply in favor of the moving party.”

27

Stuhlbarg Intern. Sales Co. v. John D. Brush & Co., 240 F.3d 832,

28

840 (9th Cir. 2001) (citing Dr. Seuss Enters. v. Penguin Books USA,

Under the alternative test for granting injunctive relief,

50

09cv02654 WQH(RBB)

1

Inc., 109 F.3d 1394, 1397 n.1 (9th Cir. 1997)).

2

measure, Plaintiff is not entitled to injunctive relief.

3

Goolsby’s remedies are limited by the PLRA.

Under either

Section 3626(a)

4

of the Act states, “Prospective relief in any civil action with

5

respect to prison conditions shall extend no further than necessary

6

to correct the violation of the Federal right of a particular

7

plaintiff or plaintiffs.”

8

statutory restriction limits available relief.

9

18 U.S.C.A. § 3626(a)(1)(A).

This

Here, Goolsby requests an injunction preventing Defendants

10

from denying medical care ordered by county jail medical staff and

11

requiring CDCR to obtain county jail medical records for new

12

inmates arriving at Donovan.

13

Court does not have jurisdiction to issue wide-reaching injunctions

14

to remedy inadequacies in prison administration that extend beyond

15

any actual injury suffered by a plaintiff.

16

U.S. 343, 357 (1996).

17

inadequacy that produced the injury in fact that the plaintiff has

18

established.”

19

(1995)).

20

(Am. Compl. 18, ECF No. 5.)

The

Lewis v. Casey, 518

“The remedy must of course be limited to the

Id. (citing Missouri v. Jenkins, 515 U.S. 70, 88, 89

Additionally, Goolsby has failed to demonstrate that he may
In City of Los Angeles v. Lyons, 461

21

suffer an imminent injury.

22

U.S. at 101-02, the Supreme Court explained that “[t]he plaintiff

23

must show that he ‘has sustained or is immediately in danger of

24

sustaining some direct injury’ as a result of the challenged

25

official conduct and the injury or threat of injury must be both

26

‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”

27

Goolsby is no longer housed at Donovan, the location where the

28

51

09cv02654 WQH(RBB)

1

Defendants are employed.

2

Plaintiff has failed to demonstrate an imminent injury.

3

(See Am. Compl. 1, ECF No. 5.)

Thus,

Goolsby is not entitled to injunctive relief unless he can

4

show that he will suffer substantial and immediate irreparable

5

injury for which there is no adequate legal remedy.

6

Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir. 1996).

7

“Under any formulation of the test [for injunctive relief],

8

plaintiff must demonstrate that there exists a significant threat

9

of irreparable injury.”

Easyriders

Oakland Tribune, Inc. v. Chronicle Publ'g

10

Co., 762 F.2d 1374, 1376 (9th Cir. 1985).

11

showing of irreparable harm.

12

housed at Donovan, Goolsby lacks standing to seek injunctive relief

13

directed at these Defendants.

14

request for an injunction is moot and is DENIED.

15
16

II.

Plaintiff has made no

In addition, because he is no longer

For all these reasons, Goolsby’s

CONCLUSION

For the reasons stated above, Defendant Wilson’s Motion to

17

Dismiss count two of the Amended Complaint for Plaintiff’s failure

18

to exhaust administrative remedies is GRANTED without leave to

19

amend.

20

sponte DISMISSED without leave to amend because they are based on

21

the same contentions asserted in count two.

22

Goolsby’s allegations against Wilson in count three are sua

Defendants Ridge and Martinez’s Motion to Dismiss the Eighth

23

Amendment charges against them in count one for failing to

24

personally examine Goolsby and failing to prescribe the medications

25

Plaintiff preferred is GRANTED without leave to amend for failure

26

to state a claim.

27

these two claims based on qualified immunity is GRANTED without

28

leave to amend.

Further, Ridge and Martinez’s Motion to Dismiss

Their Motion to Dismiss the claim alleging that

52

09cv02654 WQH(RBB)

1

Ridge and Martinez failed to ensure that Goolsby underwent the

2

diagnostic tests ordered by treating physicians at county jail is

3

GRANTED with leave to amend.

4

immunity for this claim is premature.

5

for injunctive relief is moot and is DENIED.

6

Defendants’ claim of qualified
Finally, Goolsby’s request

Plaintiff is GRANTED forty-five (45) days leave from the date

7

this Order is filed in which to file a Second Amended Complaint

8

which cures all the deficiencies of pleading the claim in count one

9

against Drs. Ridge and Martinez that they failed to ensure that

10

Goolsby underwent the diagnostic tests ordered by physicians at

11

county jail as noted above.

12

must be complete in itself without reference to his previous

13

pleading.

14

Plaintiff’s Second Amended Complaint

See S.D. Cal. Civ. L.R. 15.1.

IT IS SO ORDERED.

15
16

DATE: May 23, 2011

17
18

cc:

__________________________
RUBEN B. BROOKS
United States Magistrate Judge

Judge Hayes
All Parties of Record

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K:\COMMON\BROOKS\CASES\1983\PRISONER\GOOLSBY2654\Order Granting MTD.wpd

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09cv02654 WQH(RBB)