Butler v. Kelso et al

Filing 104

ORDER denying Plaintiff's 69 MOTION to Amend/Correct 23 Amended Complaint filed by Theodore Butler. Signed by Magistrate Judge Ruben B. Brooks on 5/2/13.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THEODORE BUTLER,

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Plaintiff,

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v.

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CLARK KELSO, J. WALKER, M.
GLYNN, RICKI BARNETT, P.
JAYUNSUNDARA, AND L.D. ZAMORA,

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Defendants.

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Civil No. 11cv02684 CAB(RBB)
ORDER DENYING PLAINTIFF'S
MOTION TO AMEND [ECF NO. 69]

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Plaintiff Theodore Butler, a state prisoner proceeding pro se

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and in forma pauperis, filed a Complaint on November 16, 2011,

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pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 4].

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filed a First Amended Complaint alleging that Defendants, prison

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officials, violated his Eighth Amendment right to be free from

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cruel and unusual punishment by acting with deliberate indifference

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to his serious medical needs.

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On May 23, 2012, he

(First Am. Compl. 4-8, ECF No. 23.)1

Defendant Kelso filed an Answer on June 7, 2012 [ECF No. 26].

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The remaining Defendants, Jayunsundara, Walker, Rivera, Glynn,

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Zamora, and Barnett, filed an Answer on July 5, 2012 [ECF No. 38].

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Because the Complaint and its attachments are not
consecutively paginated, the Court will cite to this pleading using
the page numbers assigned by the electronic filing system.
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11cv02684 CAB(RBB)

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Plaintiff's "Motion To Amend His Complaint's Prayer For Relief

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To Include Request For Prison Release Order" ("Motion to Amend")

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was filed nunc pro tunc to October 17, 2012 [ECF No. 69].

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Defendant Kelso filed a Notice of Non-opposition to Plaintiff's

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Motion to Amend on November 1, 2012 [ECF No. 71].

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Walker, Rivera, Glynn, Zamora, and Barnett filed Defendants'

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Opposition to Plaintiff's Motion to Amend on November 9, 2012 [ECF

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No. 73].

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Jayunsundara,

Because Butler requested that he be allowed to amend his

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Complaint to include a request for a prison release order, see

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Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69, on November 13,

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2012, the Court directed Defendants to file a supplemental brief

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"addressing the applicability of Preiser v. Rodriguez, 411 U.S.

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475, 500 (1973) . . . ."

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filed his supplemental brief on November 19, 2012, in response to

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the order [ECF No. 76].

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their Court-ordered supplemental brief on the same date.

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77].2

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(Mins. 1, ECF No. 74.)

Defendant Kelso

The remaining Defendants also submitted
[ECF No.

Butler filed a Reply to Defendants' Opposition on November 28,
2012 [ECF No. 81].
For the reasons discussed below, the Motion to Amend [ECF No.
69] is DENIED.

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Plaintiff is seeking an immediate release from custody, but
he bases his entitlement to release on prison conditions resulting
in cruel and unusual punishment, not on the fact or duration of his
physical imprisonment. (See Pl.'s Mot. Amend Compl.'s Prayer 1,
ECF No 69.) The Court concludes that Prieser is not applicable to
this motion. Prieser stands for the proposition that "when a state
prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus."
Preiser, 411 U.S. at 500. Preiser does not apply.
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11cv02684 CAB(RBB)

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I.

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FACTUAL BACKGROUND

This is a civil rights action brought under 42 U.S.C. § 1983

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by a California state prisoner [ECF No. 23].

Butler contends that

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his constitutional rights were violated while he was incarcerated

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at Richard J. Donovan State Prison between May 19, 2010, and

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October 19, 2011.

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maintains that the Defendants violated his Eighth Amendment rights

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by acting with deliberate indifference to his serious medical

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needs.

(See First Am. Compl. 3, ECF No. 23.)

(See id. at 4.)

Plaintiff

He alleges that Defendants Kelso, Walker,

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Barnett, Glynn, and Zamora refused to authorize a drug needed to

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treat Butler's hepatitis C virus.

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contends that Defendant Glynn reviewed Plaintiff's administrative

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appeal at the second level and responded, "You will receive

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hepatitis C medication if recommended by the Infectious Disease

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Specialist . . . ."

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seen by a specialist who recommended boceprevir, a protease

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inhibitor, but Defendants continued to deny him the drug.

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7.)

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(Id. at 8.)

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for "reasonable accommodation of outpatient medical diet and

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dietary supplements."

(Id. at 7, 39.)

Butler asserts that he was

(Id. at

Plaintiff asserts that Jayunsudara denied his request

(Id.)
II.

A.

Plaintiff further

Defendant Jayunsundara is a nurse practitioner at the prison.

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(Id. at 6-7.)

DISCUSSION

Motion Liberally Construed

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In Plaintiff's current motion, he requests that the Court

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allow him to amend his First Amended Complaint pursuant to Federal

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Rule of Civil Procedure 15(a)(2).

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Prayer 1, ECF No. 69.)

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"Prison Release Order" in his prayer for relief.

(Pl.'s Mot. Amend Compl.'s

Butler wishes to include a request for a

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(Id.)

Although

11cv02684 CAB(RBB)

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Plaintiff alleges that he is moving to amend only to add an

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additional prayer for relief, his request is based on allegations

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not asserted in his original or First Amended Complaint.

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see generally First Am. Compl., ECF No. 23.)

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Prison Release Order "due to prison overcrowding -- and the

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financial crisis of California Prison Health Care Services as

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direct result."

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Other than this motion, Plaintiff's pleadings make no mention of

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prison overcrowding as a basis for relief.

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ECF No. 1; First Am. Compl., ECF No. 23.)

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(See id.;

Butler is seeking a

(Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.)

(See generaly Compl.,

Thus, construing Plaintiff's motion liberally, as required by

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Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court finds that

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Butler's motion is more properly construed as a motion for leave to

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amend to include an additional Eighth Amendment violation based on

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prison overcrowding, and to add an additional prayer for relief

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based on this claim.

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B.

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Failure to State a Claim Upon Which Relief May be Granted
1.

Legal Standards
a.

Sua sponte dismissal of claims

The Prison Litigation Reform Act of 1995 ("PLRA") requires

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courts to review complaints filed by prisoners against officers or

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employees of governmental entities.

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1915(e)(2)(B), 1915A(b) (West 2012); Lopez v. Smith, 203 F.3d 1122,

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1124, 1126-28 (9th Cir. 2000) (en banc).

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complaints or any portion of complaints that are frivolous,

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malicious, fail to state a claim, or seek monetary relief from a

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defendant who is immune from such relief.

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at 1126-27.

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See 28 U.S.C.A. §§

Courts must dismiss

Lopez v. Smith, 203 F.3d

11cv02684 CAB(RBB)

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Section 1915(e)(2)(B)(ii) essentially "'parallels the language

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of Federal Rule of Civil Procedure 12(b)(6).'"

Id. at 1127

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

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1998)).

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the case if "'at any time . . . the court determines that . . . the

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

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be granted.'"

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§ 1915(e)(2)(B)(ii)).

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sponte dismissal under § 1915(e)(2)(B)(ii) or a dismissal under

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 of review applies to a sua

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Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005) (citing id.).
b.

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Huftile v.

Federal Rule of Civil Procedure 8(a)(2) and
conclusory allegations

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Under Federal Rule of Civil Procedure 8(a)(2), a pleading must

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contain a "short and plain statement of the claim showing that the

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pleader is entitled to relief."

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Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 663

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(2009), the Supreme Court held that "the pleading standard Rule 8

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announces does not require 'detailed factual allegations,' but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation."

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555).

In both, Bell Atlantic Corp. v.

Iqbal, 566 U.S at 678 (quoting Twombly, 550 U.S. at

Butler's pleading must contain "enough facts to state a claim

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to relief that is plausible on its face."

Twombly, 550 U.S. at

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570.

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factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged."

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Ashcroft, 556 U.S. at 678.

"A claim has facial plausibility when the plaintiff pleads

The court must accept as true all

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11cv02684 CAB(RBB)

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material 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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Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v.

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City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch.

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of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); NL

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Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

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court does not look at whether the plaintiff will "ultimately

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prevail but whether the claimant is entitled to offer evidence to

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support the claims."

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Cholla Ready Mix,

The

see Twombly, 550 U.S. at 563 n.8.

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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);

Further, the court need not accept generalized allegations in

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the complaint as true; rather, it must "'examine whether [they]

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follow from the description of facts as alleged by the plaintiff.'"

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

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Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F.

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Supp. 782, 785 (C.D. Cal. 1986)); see Halkin v. VeriFone, Inc., 11

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F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, Inc., 382

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F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752,

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754-55 (9th Cir. 1994)).

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true allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences."

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

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c.

"Nor is the court required to accept as

Sprewell v. Golden State

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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Karim-Panahi v. Los
The rule

11cv02684 CAB(RBB)

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of liberal construction is "particularly important in civil rights

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cases."

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In giving liberal interpretation to a pro se civil rights

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complaint, courts may not "supply essential elements of claims that

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were not initially pled."

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

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allegations of official participation in civil rights violations

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are not sufficient . . . ."

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Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory

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allegations unsupported by facts insufficient to state a claim

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under § 1983).

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degree of particularity overt acts which defendants engaged in that

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support the plaintiff's claim."

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quotation omitted).

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

Ivey v. Bd. of Regents of the Univ. of
"Vague and conclusory

Id.; see also Jones v. Cmty. Redev.

"The plaintiff must allege with at least some

Jones, 733 F.2d at 649 (internal

Where amendment of a pro se litigant's complaint would be

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futile, denial of leave to amend is appropriate.

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Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

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d.

See James v.

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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Constitution or laws of the United States.

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(West 2012); Shah v. Cnty. of Los Angeles, 797 F.2d 743, 746 (9th

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Cir. 1986).

42 U.S.C.A. § 1983

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11cv02684 CAB(RBB)

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e.

Stating a claim for deliberate indifference

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

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to adequate medical care."

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(9th Cir. 1982).

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the Eighth Amendment's prohibition against cruel and unusual

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punishment.

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serious medical needs consists of two requirements, one objective

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and the other subjective.

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Cir. 2006); Lopez, 203 F.3d at 1132-33 (quoting Allen v. Sakai, 48

Deliberate indifference to medical needs violates

Estelle, 429 U.S. at 103.

Deliberate indifference to

Jett v. Penner, 439 F.3d 1091, 1096 (9th

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

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establish a "serious medical need" by showing that "failure to

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treat a prisoner's condition could result in further significant

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injury or the 'unnecessary and wanton infliction of pain.'"

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

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(9th Cir. 1991)).

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response to the need was deliberately indifferent."

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McGuckin, 974 F.2d at 1060).

The plaintiff must first

Jett,

"Second, the plaintiff must show the defendant's
Id. (citing

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

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serious medical needs include '[t]he existence of an injury that a

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reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the

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existence of chronic and substantial pain.'"

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

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Lopez, 203 F.3d at

Under the subjective element, prison officials are

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deliberately indifferent to a prisoner's serious medical needs when

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they "deny, delay or intentionally interfere with medical

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treatment."

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

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11cv02684 CAB(RBB)

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Cir. 1988).

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the inference could be drawn that a substantial risk of serious

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

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

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

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rise to the level of a constitutional violation.

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

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

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

Farmer v.

Inadequate treatment due to

See Wilson v.

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

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constitutional violation unless there is reckless disregard of a

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risk of serious harm to the prisoner.

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The inmate must allege that the defendant purposefully ignored or

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

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failure to provide adequate care does not constitute a violation.

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

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

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

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abate it."

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2.

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Farmer, 511 U.S. at 836.

The official must have "know[n] that

Farmer, 511 U.S. at 847.
Discussion
a.

Objective element

Here, as to the objective element, Butler claims that he has

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the hepatitis C virus, a serious medical condition, and he is at

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stage three of his liver disease; stage four is the end stage

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(fatal stage).

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that when he was first prescribed daily doses of consensus

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interferon, he was "at stage two of degradation of [the] disease,"

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but an April 7, 2011 biopsy revealed that his condition had

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worsened.

(First Am. Compl 6, ECF No 23.)

(Id.)

Butler alleges

Plaintiff alleges that without the treatment he

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11cv02684 CAB(RBB)

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requests, he will be "more susceptible to contract other (H.C.V.)

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related disease[s] such as liver cancer [and] liver cirrhosis, all

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irreparable diseases."

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that failure to treat his hepatitis C virus will result in his

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death.

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ECF 69 (Defendants' protocols require Plaintiff to "flirt with

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irreparable and terminal stages of disease . . . .").)

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(Id. at 8.)

Essentially, Butler argues

(See id. at 6-8; and Pl.'s Mot. Amend Compl.'s Prayer 3,

The Supreme Court in Erickson v. Pardus, 551 U.S. 89 (2007),
held that denial of hepatitis C treatment that results in

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endangerment of a prisoner's life is sufficient to meet the

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objective requirement for an Eighth Amendment claim based on

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deliberate indifference to a serious medical need.

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551 U.S. at 93-94.3

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See Erickson,

Because Butler has alleged that Defendants are denying him

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required hepatitis C treatment and that continued denial will

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ultimately result in his death, he has adequately alleged injuries

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"that a reasonable doctor or patient would find important and

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worthy of comment or treatment . . . ."

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see also Erickson, 551 U.S. at 94.

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facts to satisfy the objective requirement that he suffers from a

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serious medical need.

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b.

Lopez, 203 F.3d at 1131;

Butler has pleaded sufficient

See id.

Subjective element

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To succeed on an Eighth Amendment claim, however, the

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Plaintiff must also satisfy the subjective element of deliberate

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In Erickson, "[t]he complaint stated that Dr. Bloor's
decision to remove petitioner from his prescribed hepatitis C
medication was 'endangering [his] life.'" It alleged . . . prison
officials were . . . refusing to provide treatment. This alone was
enough to satisfy Rule 8(a)(2)." Id. at 94 (alteration in
original) (citations omitted).
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indifference.

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Defendants knew he faced a substantial risk of serious harm and

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acted without regard to that risk.

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

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equivalent of a constitutional violation.

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105-06.

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Jett, 439 F.3d at 1096.

Butler must allege that

See Farmer, 511 U.S. at 836-37;

Negligent medical care is not the
Estelle, 429 U.S. at

Here, Butler "seeks permission to amend his original complaint

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filing . . . [based] on supplemental evidence received since [the]

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original complaint was filed . . . ."

(Pl.'s Mot. Amend Compl.'s

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Prayer 1, ECF No. 69.)

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denied Doctor's prescribed medical care for his hepatitis [C]

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virus, HCV."

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Amended Complaint, he has received supplemental information from

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Dr. John Zweifler, the "Deputy Medical Executive for Field

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Operations in the Central Area for California Correctional Health

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Care Services ('CCHCS')."

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"'scarce in quantity given the current economic state of

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(CCHCS).[']"

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Plaintiff maintains that he "is being

(Id. at 2.)

Butler alleges that since his First

The medication Plaintiff seeks is

(Id. at 3.)

Plaintiff asserts that he is "at stage 3 of 4 fibrosis," and

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he was "prescribed specific treatment [on] July 6, 2011[,] by [an]

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Infections Disease Specialist . . . ."

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despite this prescription, he has "remained medically untreated"

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for fifteen months, and no date has been given for when the

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"prescribed treatment will be provided."

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that the "prison only monitor[s] the progression of [his] disease

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[and] does nothing [to] treat [the] disease to abate its

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progression but can only inform when [the] disease has reached

(Id.)

Butler alleges that

(Id.)

He further alleges

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11cv02684 CAB(RBB)

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[its] end stages, [and] therefore cannot be considered adequate

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[c]onstitutional medical care."

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(Id. at 4-5.)

Butler maintains that "the medicine prescribed for him wont

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[sic] be [c]onstitutionally provided to him due to prison

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overcrowding and the financial crisis [its] rectifying has

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caused . . . ."

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protocols are established due to aforestated economic reasons, the

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protocols to be established are [u]nconstitutional, as being

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established based upon economic crisis and administrative

(Id. at 2.)

Plaintiff asserts that "[w]hen and if

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convenience[;] they deny promptly needed medical treatment for non-

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medical reasons . . . ."

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denial places him at risk for "irreparable and terminal stages of

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disease . . . ."

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(Id. at 3.)

Butler alleges that this

(Id.)

Plaintiff maintains that "(CCHCS) may never establish

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protocols for use of the medicine thats [sic] been prescribed for

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plaintiff as [sic] due to the current-economic state of

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(CCHCS) . . . ."

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plaintiff is treated, many other like-confined persons would and do

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need this same medical care, [and] the cost could/would colapse

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(CCHCS) economically."

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establishing a hepatitis C virus "policy to save money at the

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[expense of his health], as needed treatment is denied by economic

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concerns rather than the effective medical care of plaintiff."

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(Id.)

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overcrowding and the cost for rectifying overcrowding."

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(Id. at 4.)

(Id.)

He continues, "When/if this

Butler alleges that CCHCS is

He asserts that this "is directly caused by prison
(Id.)

Butler contends that Defendants' decision not to provide him

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with the medication he requests amounts to deliberate indifference

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to his medical needs in violation of his constitutional rights.

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11cv02684 CAB(RBB)

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(See id.)

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overcrowding allegations and to add to his prayer for relief a

3

request for an "En Banc panel of three Judges to consider [a]

4

Prison Release Order."

5

Plaintiff seeks to amend his complaint to include

(Id. at 5.)

Defendants Barnett, Jayunsundara, Rivera, Walker and Glynn

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assert that Plaintiff has failed to establish that overcrowding is

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the "primary cause" for the failure to treat him with boceprevir

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and telaprevir.

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73.)

(Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF

Defendants also maintain, "It is true that [boceprevir] is

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very expensive.

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saved for inmates suffering from advanced HCV disease is because of

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serious side effects that could have an adverse impact on the

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health of the inmate-patient."

However, the other reason why such treatment is

(Id. at 2-3.)

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Defendants also cite Dr. Zweifler's declaration, on which

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Butler relies, but Dr. Zweifler explains that boceprevir "is highly

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toxic with the potential for serious side effects including a

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depletion of the inmate-patient's red and white blood cells along

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with gastrointestinal problems and skin reactions."

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(Id. at 3.)

In Plaintiff's Reply to Defendants' Opposition, Butler

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addresses Defendants' claims that, because of its adverse side

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effects, boceprevir is saved for inmates suffering from advanced

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HCV, which Plaintiff is not.

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81.)

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"ludicrous."

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Defendants to wait to treat HCV patients with boceprevir until they

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are the "most toxic."

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and is now denied medical care as a matter of economic concern and

(Pl.'s Reply Defs.' Opp'n 3, ECF No.

Butler maintains that this contention is "absurd" and
(Id.)

Plaintiff asserts that it is inappropriate for

(Id.)

Butler continues, "Plaintiff has been

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11cv02684 CAB(RBB)

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crisis directly linked to – California Prison Over Crowding

2

. . . ."

3

(Id.)

Prison officials act with deliberate indifference when they

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"'intentionally interfer[e] with . . . treatment once prescribed.'"

5

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

6

(alteration in original) (quoting Estelle, 429 U.S. at 104-05).

7

violation may be found when a prison official deliberately ignores

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explicit orders from the inmate's doctor for reasons unrelated to

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the prisoner's medical needs.

A

Id. (citing Hamilton v. Endell, 981

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F.2d 1062, 1066-67 (9th Cir. 1992) (holding that intentional

11

interference could be found when prison officials forced Hamilton

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to fly on an airplane, contrary to orders from the prisoner's prior

13

physician).)

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"But the question whether an X-ray or additional diagnostic

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techniques or forms of treatment is indicated is a classic example

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of a matter for medical judgment.

17

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

18

punishment."

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medical malpractice.

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A medical decision not to order

Estelle, 429 U.S at 107.

At most, it may constitute

(Id.)

Deliberate indifference may be adequately alleged where a

21

physician pursues a treatment plan that was not "the product of

22

sound medical judgment."

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(2th Cir. 1998).

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

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their medical views, but because of monetary incentives."

26

704.

27
28

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

In Chance, the plaintiff alleged that two

Id. at

This was sufficient to allege deliberate indifference.
Similarly, in Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986),

the plaintiff alleged that he was told that he would not receive

14

11cv02684 CAB(RBB)

1

the necessary treatment because the county had a "tight budget."

2

Id. at 771.

3

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

4

Budgetary constraints, however, do not justify cruel and unusual

5

punishment."

6

doctor is alleged to have "nixed the diagnostic tests required by

7

the treating physicians."

8

U.S. Dist. LEXIS 1464, at *7 (N.D. Ill. Feb. 13, 1997).

9
10
11
12

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

Id.

In another case, for budgetary reasons, one

Goring v. Elyona, No. 96 C 4521, 1997

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.

13
14

Id. (internal citation omitted).

15

claim against Dr. Elyea.

16

The court declined to dismiss the

Butler alleges that Defendants failed to provide him with his

17

"Doctor's prescribed medical care for his hepatitis [C] virus

18

(HCV)."

19

"Refusing to treat a progressively degenerative condition that is

20

potentially dangerous and painful if left untreated may constitute

21

deliberate indifference."

22

3:04-cv-1582 (RNC), 2008 U.S. Dist. LEXIS 106854, at *10, (D. Conn.

23

Jan. 30, 2008).

24

(Pl.'s Mot. Amend Compl.'s Prayer 2, ECF No. 69.)

Jolley v. Corr. Managed Health Care,

Plaintiff has asserted that the Defendants failed to provide

25

the prescribed medical care in order to "save money."

26

Amend Compl.'s Prayer 4, ECF No. 69.)

27

treatment is denied by economic concerns rather than the effective

28

medical care of plaintiff."

(Id.)

15

(Pl.'s Mot.

Butler alleges that "needed

He rests the allegation on a

11cv02684 CAB(RBB)

1

single statement made by Dr. Zweifler in his declaration that the

2

medication prescribed for Plaintiff "is scarce in quantity given

3

the current economic state of (CCHCS)."

4

does not go so far as to state that Butler is being denied

5

boceprevir because of its cost.

6

(Id. at 3.)

This comment

(See id.)

Defendants Barnett, Jayunsundara, Rivera, Walker, Zamora and

7

Glynn, offer other reasons for not providing Plaintiff with

8

boceprevir.

9

In their opposition, Defendants assert that the "treatment is saved

(Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF 73.)

10

for inmates suffering from advanced HCV disease . . . because of

11

side effects that could have an adverse impact on the health of the

12

inmate-patient."

13

Zweifler also states that the medication is "highly toxic with the

14

potential for serious side effects including a depletion of the

15

inmate-patient's red and white blood cells along with

16

gastrointestinal problems and skin reactions."

(Id. at 2-3.)

They further point out that Dr.

(Id. at 3.)

17

As stated above, the Court need not accept conclusory

18

allegations in a complaint or motion to amend; rather, it must

19

"'examine whether [they] follow from the description of facts as

20

alleged by the plaintiff.'"

21

Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F.

22

Supp. at 785).

23

provide him with boceprevir in order to save money.

24

Amend Compl.'s Prayer 4, ECF No. 69.)

25

that the need to "save money" arises from prison "overcrowding and

26

the cost for rectifying overcrowding."

27

Defendants' failure to provide him with boceprevir is based solely

28

on budgetary constraints, not medical judgment.

Holden, 978 F.2d at 1121 (quoting

Butler alleges that Defendants have failed to

16

(Pl.'s Mot.

Plaintiff further asserts

(Id.)

He concludes that

(See id. at 4-5.)

11cv02684 CAB(RBB)

1

Based on this, Butler alleges that Defendants acted with deliberate

2

indifference.

3

(Id.)

The Court is not required to "accept as true allegations that

4

are merely conclusory, unwarranted deductions of fact, or

5

unreasonable inferences."

6

broad allegations against the multiple Defendants are based on

7

unreasonable inferences unsupported by facts.

8

at 1121.

9

medication based solely on monetary concerns, Plaintiff would have

Sprewell, 266 F.3d at 988.

Butler's

See Holden, 978 F.2d

If a specific Defendant had decided to deny Plaintiff the

10

a colorable claim for deliberate indifference.

See Goring, 1997

11

U.S. Dist. LEXIS 1464, at *7.

12

does not support his claim with factual allegations directed to

13

each Defendant.

14

69.)

15

medication being scarce because of economic constraints.

16

has failed to provide the sufficient factual allegations necessary

17

to allow the Court to accept his ultimate conclusion that prison

18

overcrowding created a financial strain on the prison that led to

19

the decision by multiple Defendants that Butler would not be

20

treated with boceprevir.

This is not the case.

Plaintiff

(See Pl.'s Mot. Amend Compl.'s Prayer , ECF No.

Instead, he draws an inference based on a single reference to
Butler

See Holden, 978 F.2d at 1121.

21

Further, Defendants provide additional reasoning based on

22

sound medical judgment for not treating Butler with boceprevir and

23

telaprevir.

24

73.)

25

to provide the requested medication constitutes deliberate

26

indifference is insufficient to state a claim against the six

27

Defendants.

(See Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF No.

Without more, Butler's assertion that the Defendants' failure

See Estelle, 429 U.S. at 107.

28

17

11cv02684 CAB(RBB)

1

Although Plaintiff has sufficiently pleaded a serious medical

2

need, he has not asserted facts sufficient to show that prison

3

overcrowding caused each Defendant to be deliberately indifferent

4

to Butler's medical needs in violation of the Eighth Amendment.

5

See Jett, 439 F.3d at 1096.

6

Thus, Plaintiff's Motion to Amend his Complaint and prayer for

7

relief can be denied on this basis.

8

C.

Motion for Leave to Amend is Futile

9

Even if Plaintiff had sufficiently pleaded an Eighth Amendment

10

violation due to overcrowding, his motion to amend to add a request

11

for a prison release order is futile.

12

In this case, Defendant Kelso filed his Answer on June 7, 2012

13

[ECF No. 26].

14

only with the opposing party's written consent or the court's

15

leave."

16

leave when justice so requires."

17

discretion of the trial court whether to grant leave to amend.

18

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Outdoor

19

Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993)).

20

After an answer, "a party may amend its pleading

Fed. R. Civ. P. 15(a).

"The court should freely give
Id.

It rests in the sound
See

In general, "Rule 15's policy of favoring amendments to

21

pleadings should be applied with 'extreme liberality.'"

United

22

States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing

23

Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per

24

curium)).

25

applied even more liberally to pro se litigants" than to parties

26

represented by counsel.

27

Cir. 1987).

28

complaint would be futile that denial of leave to amend is

The policy favoring amendments under Rule 15(a) "is

Eldridge v. Block, 832 F.2d 1132 (9th

It is only where an amendment of a pro se litigant's

18

11cv02684 CAB(RBB)

1

appropriate.

2

Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

3

Lopez v. Smith, 203 F.3d at 1131; Cahill v. Liberty

The factors to be considered in deciding whether to grant a

4

motion to amend are "bad faith, undue delay, prejudice to the

5

opposing party, futility of the amendment, and whether the party

6

has previously amended his pleadings."

7

(citing W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th

8
9

Bonin, 59 F.3d at 845

Cir. 1991)).
In this case, granting Plaintiff leave to amend the Complaint

10

would be futile.

11

to consider [a] Prison Release Order."

12

Prayer 5, ECF 69.)

13

pursuant to 18 U.S.C. § 3626(a)(3).

14

2000).

15

Butler requests an "En Banc panel of three Judges
(Pl.'s Mot. Amend Compl.'s

This specific relief, however, is available
18 U.S.C.A. § 3626(a)(3) (West

Defendants Barnett, Jayunsundara, Rivera, Walker, Zamora, and

16

Gylnn assert that Butler does not meet the requirements for a

17

prison release order, and the request to amend is therefore futile.

18

(Defs.' Opp'n Pl.'s Mot. Amend Compl. 2, ECF 73.)

19
20
21
22

[P]rison release orders are permitted only if previous,
less intrusive relief has failed to remedy the federal
law violation in a reasonable time. A release order must
be supported by clear and convincing evidence that
"crowding is the primary cause of the violation of a
Federal right" and no other relief will remedy the
violation.

23

(Id. (citing 18 U.S.C. § 3626(a)(3)(E)(i)-(ii)).)

24

maintain that Butler has not shown that overcrowding is the

25

"primary cause" of the denial of requested treatment.

26

Defendants

(Id.)

Defendants further allege that Butler has failed to show that
(Id. at 2.)

In

27

"no other relief will remedy the violation."

28

Defendants' Supplemental Brief in Opposition to Plaintiff's Motion

19

11cv02684 CAB(RBB)

1

to Amend, they cite Brown v. Plata, __ U.S. __, __, 131 S. Ct.

2

1910, 1922 (2010), for the proposition that "'[t]he authority to

3

order release of prisoners as a remedy to cure a systematic

4

violation of the Eighth Amendment is a power reserved to a three-

5

judge district court, not a single judge district court.'"

6

3.)

7

Therefore, he does not meet the requirements for a prison release

8

order.

9
10
11
12

(Id. at

The remedy Butler seeks is not available in this action.

(Id.)

Prison Release Orders are governed by 18 U.S.C. § 3626
subsection (a)(3)(A).
In any civil action with respect to prison
conditions, no court shall enter a prison release order
unless –-

13

(i) a court has previously entered an order for
less intrusive relief that has failed to remedy the
deprivation of the Federal right sought to be
remedied through the prison release order . . . .

14
15
16
17

18 U.S.C.A. § 3626(a)(3)(A).
Plaintiff does not allege that a district court has previously

18

entered an order granting him less intrusive relief.

19

is unable to meet the requirements for a prison release order; his

20

request is futile; and the motion to amend may be denied on this

21

basis.

22

2012 U.S. Dist. LEXIS 59309, at *7-8 (C.D. Cal. Feb. 28, 2012)

23

(citing 18 U.S.C. § 3626(a)(3)(b)).

24

sought an order under 18 U.S.C. § 3626 asking that he be released

25

due to overcrowding.

26

order may only be issued if 'a court has previously entered an

27

order for less intrusive relief that has failed to remedy the

28

deprivation of the Federal right sought to be remedied through the

Thus, Butler

See Nagast v. Dep't of Corr., No. ED CV 09-1044-CJC (PJW)

In Nagast, the plaintiff

The court held that "[a] prisoner release

20

11cv02684 CAB(RBB)

1

prison release order' . . . ."

2

3626(a)(3)(A)).

3

been granted previous relief, "[he] cannot bring a claim under

4

§ 3626 . . . [and] this claim is dismissed with prejudice."

5

(citing 18 U.S.C. § 3626(a)(3)(B)).

The court found that because Plaintiff had not

6
7

Id. at *8 (quoting 18 U.S.C. §

III.

Id.

CONCLUSION

For the reasons discussed above, Butler has failed to state

8

claim for which relief may be granted.

9

Plaintiff has not shown that he is entitled to the requested

10

relief.

11

Even ignoring this defect,

Prayer [ECF No. 69] is DENIED.4

12

On both bases, Butler's Motion to Amend His Complaint's

IT IS SO ORDERED.

13
14

DATED:

May 2, 2013

15
16
17

_________________________________
Ruben B. Brooks, Magistrate Judge
United States District Court

cc:
Judge Bencivengo
All Parties of Record

18
19
20
21
22
23
24
25
26
27
28

4

The Court has issued an order, rather than a report and
recommendation, and agrees that "a motion to amend is not a
dispositive motion because by its nature it only seeks to add or
amend claims or [parties] rather than dismiss the action in its
entirety." Fernandez v. Nevada, No. 3:06-cv-0628-LRH-RAM, 2011
U.S. Dist. LEXIS 6162, at *8 (D. Nev. Jan. 18, 2011); accord Pat
Pelligrini Flooring Corp. v. Itex Corp., No. CV 09-376-AC, 2010
U.S. Dist. LEXIS 25856, at *4 (D. Or. Mar. 16, 2010); Darney v.
Dragon Prods. Co., LLC, 266 F.R.D. 23, 25 (D. Me. 2010); Everett v.
Cherry, 671 F. Supp. 2d 819, 820 (E.D. Va. 2009).
I:\Chambers Brooks\CASES\_1983\PRISONER\BUTLER2684\Order Den Mot. to Amnd.wpd

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11cv02684 CAB(RBB)