Pride v. Straga

Filing 51

ORDER Granting Defendant's 45 Motion to Dismiss. The Court dismisses without prejudice Plaintiff's Third Amended Complaint. Plaintiff shall file an amended complaint, if any, on or before thirty (30) days on the date this Order is electronically docketed. Signed by Judge Janis L. Sammartino on 4/10/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14-CV-414 JLS (DHB)
DAVID CODELL PRIDE, JR.,
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

Plaintiff,
v.

(ECF No. 45)

DR. STRAGA,
Defendant.

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Presently before the Court is Defendant Dr. Straga’s Motion to Dismiss Third

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Amended Complaint, (“MTD,” ECF No. 45). Also before the Court are Plaintiff David

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Codell Pride Jr.’s Response in Opposition to, (“Opp’n,” ECF No. 46), and Defendant’s

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Reply in Support of, (“Reply,” ECF No. 47), Defendant’s MTD. The Court vacated the

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hearing on the motion and took the matter under submission pursuant to Civil Local Rule

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7.1(d)(1). (ECF No. 40.) After considering the parties’ arguments and the law, the Court

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GRANTS Defendant’s MTD, (ECF No. 45), and DISMISSES WITHOUT

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PREJUDICE Plaintiff’s Third Amended Complaint.

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BACKGROUND

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Plaintiff is currently an inmate at Richard J. Donovan Correctional Facility in

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California. (First Am. Compl. (“FAC”) 1, ECF No. 6.)1 The events underlying this

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claim occurred while Plaintiff was an inmate at Calipatria State Prison (“CSP”), also in

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California. (Id.) In 2009, Plaintiff was taking Tramadol prescribed to him by his primary

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care physician at CSP for chronic knee, neck, back, and shoulder pain. (Id. at 3.) On

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February 24, 2009, Plaintiff was taken off Tramadol and prescribed Neurontin by

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Defendant, a neurologist treating Plaintiff. (Third Am. Compl. (“TAC”) ¶ 6, ECF No.

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44.)2

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After the initial appointment, Plaintiff had several more primary care appointments

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with Dr. Straga between February 2009 and July 2010. (Id. ¶ 7.) Plaintiff informed Dr.

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Straga during these visits that the Neurontin was not relieving his chronic pain. (Id. ¶ 8.)

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There are no further factual allegations that illuminate what happened concerning

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Plaintiff’s treatment after July 2010. From those factual allegations, Plaintiff concludes

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that Defendant knew the Neurontin treatment regimen provided Plaintiff no relief. (Id.

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¶ 11.) Plaintiff also alleges that Defendant failed to provide treatment, “[d]espite the

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diagnose [sic] of central neuropathic pain, and repeated complaints by plaintiff and

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request [sic] for a different method of treatment which would have brought his pain and

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treatment needs to an acceptable level of care.” (Id. ¶¶ 12–13.)

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Plaintiff now brings a claim under 42 U.S.C. § 1983 alleging that Defendant

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violated his Eighth Amendment right. (Id. ¶ 18.)

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The Court recites these background facts from Plaintiff’s First Amended Complaint, rather than his
present Third Amended Complaint, because he omits these details from his Third Amended Complaint.
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It does not appear that Plaintiff filed a Second Amended Complaint. He labeled his most recent
complaint: “Third Amended Complaint for Damages.” (ECF No. 44.) The Court will refer to the
complaint currently pending as Plaintiff’s Third Amended Complaint, or TAC, even though it is only the
second amended complaint.
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14-CV-414 JLS (DHB)

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A

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complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

Although Rule 8 “does not require ‘detailed factual

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In order to survive a motion to dismiss, “a complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is

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facially plausible when the facts pled “allow the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing

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Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there

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must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts

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“‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to

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relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true

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“legal conclusions” contained in the complaint. Id. This review requires context-specific

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analysis involving the Court’s “judicial experience and common sense.”

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(citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more

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than the mere possibility of misconduct, the complaint has alleged—but it has not

Id. at 679

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‘show[n]’—‘that the pleader is entitled to relief.’” Id.

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In the wake of the heightened pleading standard announced in Twombly and

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affirmed in Iqbal, the Court remains obligated, “where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

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(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). However,

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the Court may not “supply essential elements of claims that were not initially pled.” Ivey

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v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). And “vague

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and conclusory allegations of official participation in civil rights violations” are not

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“sufficient to withstand a motion to dismiss.” Id.

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Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to

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amend unless it determines that no modified contention “consistent with the challenged

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pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d

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655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806

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F.2d 1393, 1401 (9th Cir. 1986)).

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ANALYSIS
I.

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Eighth Amendment Standard
An inmate has an Eighth Amendment right to adequate physical and mental health
“To establish

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care.

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unconstitutional treatment of a medical condition . . . a prisoner must show deliberate

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indifference to a “serious” medical need. Id. (citing McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1992)). Deliberate indifference to the serious medical needs of an inmate

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is inconsistent with the basic standards of human decency and antithetical to the Eighth

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Amendment’s proscription of “unnecessary and wanton infliction of pain.” Gregg v.

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Georgia, 428 U.S. 153, 173 (1976).

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Doty v. Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

A determination of deliberate indifference to a serious medical need involves a

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two-step analysis consisting of both objective and subjective inquiries.

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Brennan, 511 U.S. 825, 837 (1994). First, the plaintiff must demonstrate a serious

Farmer v.

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medical need such that failure to provide treatment could “result in further significant

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injury” or “unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Second, the

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plaintiff must show that the defendant’s response to the medical need was deliberately

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indifferent. Id. (citing McGuckin, 974 F.2d at 1059–60).

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Deliberate indifference consists of (1) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (2) harm caused by the indifference. Id.

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Such indifference may be manifested when “prison officials deny, delay[,] or

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intentionally interfere with medical treatment, or it may be shown by the way in which

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prison physicians provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394

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(9th Cir. 1988). This standard is one of subjective recklessness. Farmer, 511 U.S. at

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839–40. “To satisfy this subjective component of deliberate indifference, the inmate

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must show that prison officials ‘kn[e]w [ ] of and disregard[ed]’ the substantial risk of

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harm, but the officials need not have intended any harm to befall the inmate; ‘it is enough

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that the official acted or failed to act despite his knowledge of a substantial risk of serious

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harm.’” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013)

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(alterations in original) (quoting Farmer, 511 U.S. at 837, 842). “Deliberate indifference

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is a high legal standard. A showing of medical malpractice or negligence is insufficient

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to establish a constitutional deprivation under the Eighth Amendment.”

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Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004)); see Estelle, 429 U.S. at 106.

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II.

Hamby v.

Application

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A. Serious Medical Need

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Accepting his factual allegations as true, Plaintiff sufficiently pleads a serious medical

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need. Plaintiff alleges he suffered from chronic pain throughout his body, bulging and

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ruptured discs, and nerve pain, among other maladies. (TAC ¶ 4.)

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B. Deliberate Indifference

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The Court turns to the second element, deliberate indifference. Plaintiff alleges

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that during his appointments with Defendant he complained to Defendant that she

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“purposefully failed to provide plaintiff with treatment that was effective in meeting his

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treatment needs with a regiment [sic] of care that was adequate in treating his medical

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needs and relieving his chronic pain, and which met community standards.” (Id. ¶ 8.) In

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sum, Plaintiff believes his treatment was ineffective, (see id. ¶ 11 (“Defendant Straga

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failed to afford plaintiff with treatment that was effective.”)), and inadequate to relieve

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his chronic pain, (see id. ¶ 12 (“[Defendant] failed to provide treatment which reduced or

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relived [sic] plaintiff’s medical needs.”)).

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Defendant argues that her decision to discontinue Tramadol in favor of Neurontin

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is simply a difference of opinion and is not actionable.3 (MTD 5.) Defendant states that

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Plaintiff does not allege that Dr. Straga refused to provide any pain medication, but rather

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Plaintiff was critical of the specific medication prescribed, i.e., he did not want

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Neurontin, but did want a different drug. (Id.)

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Generally, difference of medical opinion . . . [is] insufficient, as a matter of law, to

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establish deliberate indifference.” Toguchi, 391 F.3d at 1058 (alteration in original)

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

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pursue one treatment among alternatives may support a deliberate indifference claim if

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the elected course of treatment “was medically unacceptable under the circumstances”

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and was chosen in “conscious disregard of an excessive risk to the prisoner’s health.”

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Jackson, 90 F.3d at 332 (declining to grant summary judgment for doctors where the

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Defendant also argues Plaintiff’s Third Amended Complaint omits several critical allegations,
previously included in the First Amended Complaint, that are important to the context of Plaintiff’s
claims. (MTD 2.) For example, the TAC omits Plaintiff’s previous factual allegation that his Neurontin
prescription was discontinued in July 2010 due to patient compliance issues. (Id.; FAC 29.) Nor did
Defendant’s care end in July 2010—Plaintiff previously alleged that he had follow up visits with
Defendant and was prescribed other treatment regimes by Defendant. (MTD 2–3; FAC 29–31.) The
Court understands Defendant’s concern, but concludes that Plaintiff’s claim fails as a matter of law
without considering the omitted context between Plaintiff’s First and Third Amended Complaints.
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plaintiff alleged they denied him a kidney transplant out of personal animosity).

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1. Whether the Elected Course of Treatment Was Medically Unacceptable

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Plaintiff argues that he will be able to show that the FDA did not approve

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prescribing Neurontin for treatment of symptoms associated with central neuropathic pain

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and thus his treatment was medically unacceptable. (Opp’n 7.) His theory is predicated

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on a district court opinion in In re Neurontin Mktg. & Sales Practices Litig., 799 F. Supp.

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2d 110 (D. Mass. 2011), which purportedly held that Neurontin is not effective at

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relieving nerve pain. (Opp’n 8.)

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That case concerned Pfizer’s fraudulent marketing of Neurontin for off-label uses.

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See In re Neurontin, 799 F. Supp. 2d at 112. As part of its finding of fact, the district

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court made several findings concerning Neurontin’s efficacy for off-label uses, including

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neuropathic pain. See In re Neurontin Mktg. & Sales Practices Litig., No. 04-cv-10739-

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FBS, 2011 WL 3852254, at *34 (D. Mass. Aug. 31, 2011). Specifically, the court found

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that

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there is no reliable scientific evidence that Neurontin is
effective for bipolar disorder, migraine, or at high doses. With
respect to some kinds of neuropathic pain, there is some
scientific evidence of efficacy. However, as the FDA found,
there is no reliable scientific evidence to support a broad
indication of neuropathic pain.

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Id.

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assessing Neurontin’s off-label efficacy for neuropathic pain. The court found:

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The court went on to discuss several double-blind, randomized, control trials

After a review of 12 [double blind trials] studying the use of
Neurontin in the treatment of neuropathic pain, and a careful
consideration of the expert testimony, the Court finds that there
is no generally accepted scientific evidence that Neurontin is
effective in the treatment of neuropathic pain as a broad
category or indication. This is a closer call because, unlike
migraine and bipolar disorder, there are four [double-blind
trials] that concluded that Neurontin was better than placebo for
treating certain narrow indications like postamputation phantom
limb pain, neuropathic pain after spinal cord injury, and
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Complex Regional Pain Syndrome I. . . . However, using the
generally accepted standard of scientific efficacy followed by
the FDA and the scientific community (requiring two [doubleblind trials] that demonstrate efficacy), the Court is persuaded
that there is insufficient reliable evidence of the efficacy of
Neurontin with respect to the broad indication of neuropathic
pain.

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Id. at *43.

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The findings of fact in In re Neurontin Marketing & Sales Practices Litigation do

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suggest that Plaintiff has a point that Neurontin’s off-label efficacy is not conclusive.

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However, Plaintiff’s reliance on this one case sweeps too broadly. The finding of fact

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was made with respect to a “broad indication of neuropathic pain.” Id. This does not

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speak to the circumstances as they apply to Plaintiff’s own medical situation.

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Further, the district court did note that Neurontin did have some efficacy with

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respect to some kinds of neuropathic pain. Id. at *34. The court stated that its finding

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was a close call because there were four double-blind trials that concluded “Neurontin

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was better than placebo for treating certain narrow indications like postamputation

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phantom limb pain, neuropathic pain after spinal cord injury, and Complex Regional Pain

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Syndrome I.”4 Id. at *43. The primary issue with relying on a case like In re Neurontin

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Marketing & Sales Practices Litigation is that the district court’s conclusions speak to the

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broad contours of Neurontin efficacy (or lack thereof) but those conclusions do not take

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into account the particulars of Plaintiff’s medical situation. The Court finds Plaintiff has

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not alleged sufficient facts to show how the elected course of treatment was medically

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unacceptable.

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Further, it appears that at the time of Plaintiff’s treatment Neurontin was approved by the California
Department of Corrections and Rehabilitation (“CDCR”), but removed from CDCR’s formulary after
2011. See Haney v. Nangalama, No. 11-cv-1218-MCE-CMK-P, 2013 WL 4482866, at *1 (E.D. Cal.
Aug. 20, 2013); Johnson v. Sepulveda, No. 11-cv-6693-JST (PR), 2013 WL 5313133, at *1–2 (N.D.
Cal. Sept. 23, 2013). While this does undercut the scientific argument for Neurontin’s efficacy, it
bolsters Defendant’s position because Defendant was prescribing a course of treatment approved by
CDCR at the time of Plaintiff’s allegations.
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2. Whether Defendant Consciously Disregarded Excessive Risk to Plaintiff’s
Health

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“To satisfy this subjective component of deliberate indifference, the inmate must

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show that prison officials ‘kn[e]w [ ] of and disregard[ed]’ the substantial risk of harm,

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but the officials need not have intended any harm to befall the inmate; ‘it is enough that

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the official acted or failed to act despite his knowledge of a substantial risk of serious

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harm.’” Lemire, 726 F.3d at 1074 (alteration in original) (quoting Farmer, 511 U.S. at

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837, 842). In Farmer, the Supreme Court held that

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a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw
the inference.
511 U.S. at 837.

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Here, the only allegation Plaintiff puts forward is that during his appointments with

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Defendant he complained to her about the treatment. (See TAC ¶ 8.) There are no

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factual allegations that Defendant knew of an excessive risk. There are no factual

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allegations that, with the knowledge of the excessive risk to Plaintiff, Defendant

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disregarded that risk. For example, in his TAC Plaintiff fails to allege any facts as to

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what happened after July 2010. (See id. ¶ 7.) Even assuming, for the sake of argument,

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Defendant knew Neurontin constituted an excessive risk to Plaintiff’s medical condition,

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Plaintiff omits any factual allegations as to what Defendant did or did not do after

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receiving his complaints.

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In his opposition, Plaintiff seems to suggest that Defendant’s action was punitive

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because Defendant viewed Plaintiff as a “Complainer.” (Opp’n 7 (“Plaintiff will offer

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evidence that Dr. Straga often labelled [sic] plaintiff as a “Complainer” and because she

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viewed plaintiff as a “Complainer,” she deliberately prescribed a Treatment Plan that

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provided ineffective treatment for his chronic pain.”).) This argument fails for two
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reasons. First, factual allegations must be included in a complaint and not contained in

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an opposition brief. Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir.

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1998) (“[I]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look

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beyond the complaint to a plaintiff’s moving papers, such as a memorandum in

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opposition to a defendant’s motion to dismiss.”).

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connecting Defendant purportedly labeling Plaintiff a “complainer” to his allegedly

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deficient medical treatment.

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Second, there are no allegations

Thus, Plaintiff has not alleged sufficient facts to allow the Court to infer that
Defendant consciously disregarded an excessive risk to Plaintiff.

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In sum, this is a difference of opinion between a physician and a prisoner, which is

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insufficient as a matter of law to establish deliberate indifference. The crux of Plaintiff’s

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complaint is that Defendant substituted Neurontin for his previously subscribed Tramadol

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and then he was treated with Neurontin from February 2009 to July 2010. (TAC ¶¶ 6–7.)

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There are no further factual allegations, only conclusory statements like Defendant

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“failed to provide treatment which reduced or relived [sic] plaintiff’s medical needs.”

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(Id. ¶ 11.) Plaintiff previously alleged more detailed factual allegations, (see generally

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FAC), but chose to include significantly less detail in his TAC. Accordingly, the Court

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GRANTS Defendant’s MTD, (ECF No. 45).

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CONCLUSION

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For the reasons stated above, the Court GRANTS Defendant’s MTD (ECF No.

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45). The Court continues to harbor serious doubts that Plaintiff will be able to adequately

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re-plead his claims against Defendant.

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proceeding pro se, and alleging a civil rights claim the Court will allow amendment. See

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Hebbe, 627 F.3d at 342; DeSoto, 957 F.2d at 658. Accordingly, the Court DISMISSES

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WITHOUT PREJUDICE Plaintiff’s Third Amended Complaint.

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However, because Plaintiff is a prisoner,

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Plaintiff SHALL FILE an amended complaint, if any, on or before thirty (30) days on

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the date this Order is electronically docketed. Failure to file an amended complaint by

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this date may result in Plaintiff’s Eighth Amendment claims being dismissed with

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prejudice.

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IT IS SO ORDERED.
Dated: April 10, 2018

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