Arellano v. R.J. Donovan Detention Facility et al

Filing 116

ORDER: (1) Overruling Plaintiff's Objections; adopting 110 Report and Recommendation; granting 63 and 69 Defendant's Motion to Dismiss Claims Against Defendants Glynn, Seeley, and Zamora; denying 112 Plaintiff's Motion for Cons ideration. 1. overrules Plaintiff's Objections (ECF No. 114); 2. adopts in its entirety Magistrate Judge Burkhardt's R&R (ECF No. 110); 3. grants Defendants' MTDs (ECF Nos. 63, 69). Specifically, the Court dismisses with prejudice Plai ntiff's Eighth Amendment claims against Defendants Glynn, Seeley, and Zamora and dismisses without prejudice Plaintiff's equal protection claims against Defendants Glynn, Seeley, and Zamora. Plaintiff may file an amended complaint within si xty (60) days of the date on which this Order is electronically docketed. Failure to file an amended complaint by this date may result in dismissal of the aforementioned claims with prejudice; 4. denies as moot Plaintiff's Motion for Consideration (ECF No. 112); 5. denies without prejudice Plaintiff's Request for Appointment of Expert. Signed by Judge Janis L. Sammartino on 9/9/2016. (All non-registered users served via U.S. Mail Service)(Copy of ECF Doc. 114 sent to Plaintiff)(kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO, JR.,

Case No.: 14-CV-590 JLS (JLB)
Plaintiff,

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ORDER: (1) OVERRULING
PLAINTIFF’S OBJECTIONS;
(2) ADOPTING REPORT AND
RECOMMENDATION;
(3) GRANTING DEFENDANTS’
MOTIONS TO DISMISS CLAIMS
AGAINST DEFENDANTS GLYNN,
SEELEY, AND ZAMORA; AND
(4) DENYING AS MOOT
PLAINTIFF’S MOTION FOR
CONSIDERATION

v.
OFFICER HODGE, et al.,

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Defendants.

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(ECF Nos. 63, 69, 110, 112)

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Presently before the Court are Defendants K. Seeley, M. Glynn, and L. D. Zamora’s

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Motion to Dismiss Claims Against Defendants Glynn and Seeley in Plaintiff’s Third

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Amended Complaint (Glynn & Seeley MTD, ECF No. 63) and Motion to Dismiss Claims

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Against Defendant Zamora in Plaintiff’s Third Amended Complaint (Zamora MTD, ECF

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No. 69) (collectively, Defendants’ MTDs). Also before the Court is Magistrate Judge Jill

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L. Burkhardt’s Report and Recommendation advising the Court to grant Defendants’

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MTDs (R&R, ECF No. 110); Plaintiff Raul Arellano, Jr.’s Objections to the R&R (ECF
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No. 114); and Defendants’ Reply to Plaintiff’s Objection (ECF No. 115).

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considered the facts and the law, the Court OVERRULES Plaintiff’s Objections (ECF No.

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114), ADOPTS the R&R in its entirety (ECF No. 110), and GRANTS Defendants’ MTDs

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(ECF Nos. 63, 69).1

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Having

BACKGROUND

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Magistrate Judge Burkhardt’s R&R contains a thorough and accurate recitation of

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the factual and procedural history underlying the instant motions. (See R&R 2–8,2 ECF

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No. 110.) This Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD
I.

Review of the Report and Recommendation

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s R&R. The district court must “make

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a de novo determination of those portions of the report or specified proposed findings or

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recommendations to which objection is made,” and “may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge.” 28

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U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United

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States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely

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objection, the Court “need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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The Court also DENIES AS MOOT Plaintiff’s Motion for the Court to Take in Consideration that Dock
103 Did Arrived [sic] on Time. (Mot. for Consideration, ECF No. 112.) The Court notes that Plaintiff’s
Response to Court’s Use of Internet Site was mailed on July 25, 2016 (see ECF No. 108), rendering it
timely under the mailbox rule, see, e.g., Houston v. Lack, 487 U.S. 266, 270. In her R&R, Magistrate
Judge Burkhardt notes that Plaintiff’s Response “took no position on the Court’s reliance on outside source
materials, and . . . instead . . . reiterate[d Plaintiff’s] substantive arguments . . . .” (R&R 5 n.3, ECF No.
110.) Accordingly, both Magistrate Judge Burkhardt and this Court recognize the timeliness of Plaintiff’s
Response and have considered it to the extent permissible.
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Pin citations to docketed materials refer to the CM/ECF page numbers electronically stamped at the top
of each page.
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II.

Motion to Dismiss

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

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

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

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

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a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at

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555 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

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devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original)

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(quoting Twombly, 550 U.S. at 557).

Although Rule 8 “does not require ‘detailed factual

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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

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when the facts pled “allow[] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to

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say that the claim must be probable, but there must be “more than a sheer possibility that a

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defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “[F]acts that are

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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. at 678–79 (citing Twombly, 550 U.S.

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at 555). This review requires “context-specific” analysis involving the Court’s “judicial

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experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit

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the court to infer more than the mere possibility of misconduct, the complaint has alleged—
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but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ.

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P. 8(a)(2)).

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When a plaintiff appears pro se, the Court construes the pleadings liberally and

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affords the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Thompson v. Davis, 295 F.3d

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890, 895 (9th Cir. 2002) (citing Oretz v. Wash. Cnty., Or., 88 F.3d 804, 807 (9th Cir.

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1996)). When giving liberal construction to a pro se complaint, however, the Court is not

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permitted to “supply essential elements of claims that were not initially pled.” Easter v.

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Cal. Dep’t of Corr., 694 F. Supp. 2d 1177, 1183 (S.D. Cal. 2010) (quoting Ivey v. Bd. of

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Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). “Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient to withstand

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a motion to dismiss.” Id. (quoting Ivey, 673 F.2d at 268) (citing Jones v. Cmty. Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984)). The Court should allow a pro se plaintiff leave

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to amend “unless the pleading ‘could not possibly be cured by the allegation of other

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facts.’” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Lopez v. Smith, 203

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F.3d 1122, 1130, 1131 (9th Cir. 2000)).

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ANALYSIS

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Plaintiff asserts two constitutional claims against Defendants Glynn, Seeley, and

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Zamora: (1) cruel and unusual punishment in violation of the Eighth Amendment, and

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(2) denial of equal protection. (See Third Am. Compl. (TAC) 23–26, ECF No. 59.)

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I.

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Summary of the R&R’s Conclusions
A.

Cruel and Unusual Punishment
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Defendants Glynn and Seeley

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Magistrate Judge Burkhardt concludes that Plaintiff failed to plead facts supporting

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a plausible deliberate indifference claim against Defendants Glynn and Seeley based upon

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their response to Plaintiff’s second-level grievance. (See R&R 13, ECF No. 110.) In

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reaching this conclusion, Magistrate Judge Burkhardt first notes that “Plaintiff fails to plead

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any facts from which the Court may draw the reasonable inference that Defendants Glynn
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and Seeley knew of an excessive risk of harm to Plaintiff’s health” because “the second-

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level response demonstrates that it was Defendants Glynn and Seeley’s understanding that

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all of the medical issues Plaintiff complained of in his grievance were adequately assessed

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and remedied at the first level of review.” (Id.) Moreover, “[t]he allegations in the Third

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Amended Complaint fail to demonstrate that Defendants Glynn and Seeley purposefully

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disregarded any risk of harm to Plaintiff’s health” because, “[t]o the contrary, the second-

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level response demonstrates Defendants Glynn and Seeley reviewed and considered

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Plaintiff’s grievance and appeal file in full and issued a written response in accordance with

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the finding of Defendant Velardi, a medical professional, that Plaintiff’s medical conditions

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were being treated adequately.” (Id. at 14.) Magistrate Judge Burkhardt rejects the

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allegation that Defendants Glynn and Seeley should have conducted an independent

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examination of Plaintiff, reasoning “[i]t is not deliberate indifference for prison officials

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serving in administrative roles to rely on the opinions of qualified medical staff in

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responding to plaintiff’s second-level grievance.” (Id. (citing Peralta v. Dillard, 744 F.3d

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1076, 1087 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 946 (2015); Doyle v. Cal.

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Dep’t of Corr. & Rehab., No. 12-cv-2769-YGR, 2015 WL 5590728, at *9 (N.D. Cal. Sept.

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23, 2015)).) Magistrate Judge Burkhardt also rejects Plaintiff’s collateral argument that

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Defendants were deliberately indifferent when they were late in responding to Plaintiff’s

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grievance, noting that “Plaintiff fails to plead any facts that suggest the Defendants’

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tardiness was purposeful or anything more than a mere inadvertence.” (Id. at 14–15.)

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Magistrate Judge Burkhardt therefore recommends that Plaintiff’s Eighth Amendment

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claims against Defendants Glynn and Seeley be dismissed with prejudice. (Id. at 15.)

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2.

Defendant Zamora

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Magistrate Judge Burkhardt determines that “Plaintiff fails to plead any facts that

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support a plausible deliberate indifference claim against Defendant Zamora” stemming

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from Defendant Zamora’s response to Plaintiff’s third-level grievance. (Id. at 15–16.)

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Magistrate Judge Burkhardt first notes that “the Third Amended Complaint fails to plead

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any facts that suggest Defendant Zamora herself performed any action that would have
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caused her to become aware of the existence of an excessive risk to Plaintiff’s health”

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because although Defendant Zamora signed the response to Plaintiff’s third-level

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grievance, the response reveals that the grievance was reviewed by Defendant Zamora’s

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staff and not Defendant Zamora personally. (Id. at 16.) Magistrate Judge Burkhardt also

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concludes that she “cannot reasonably infer from the Third Amended Complaint that

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Defendant Zamora became aware of an excessive risk of harm to Plaintiff’s health via the

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information her staff communicated to her” because the response indicates that “the

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information Defendant Zamora’s staff provided to her suggests . . . that all of the medical

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issues Plaintiff raised in his third-level grievance had been adequately assessed and

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remedied at a lower level of review.” (Id.) Moreover, that Defendant Zamora’s response

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differs from Plaintiff’s own assessment of his medical needs does not establish deliberate

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indifference (id. (citing Estelle, 429 U.S. at 107; Sanchez v. Vild, 891 F.3d 240, 242 (9th

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Cir. 1989)), and a prison administrator may rely on the medical opinions of other qualified

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staff (id. at 17 (citing Peralta, 744 U.S. at 1087)). Finally, “Plaintiff’s Third Amended

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Complaint fails to allege any facts that suggest Defendant Zamora directed her staff to be

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deliberately indifferent in responding to Plaintiff’s medical needs or otherwise personally

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participated in any deliberately indifferent conduct of her staff,” as would be required to

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establish vicarious liability.

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recommends that the Court dismiss with prejudice Plaintiff’s Eighth Amendment claims

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against Defendant Zamora. (Id. at 17–18.)

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B.

(Id. at 17.)

Accordingly, Magistrate Judge Burkhardt

Equal Protection
1.

Defendants Glynn and Seeley

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Magistrate Judge Burkhardt concludes that “Plaintiff fails to plead any facts that

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support a plausible equal protection claim against Defendants Glynn and Seeley,” either

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under the theory that they intentionally discriminated against him based upon his

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membership in a protected class or under a “class of one” theory that Defendant Glynn and

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Seeley intentionally treated Plaintiff differently from other similarly situated individuals

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without a rational basis. (Id. at 19.) With respect to the former theory of liability,
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Magistrate Judge Burkhardt notes that Plaintiff’s TAC “fails to allege any facts that suggest

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Defendants Glynn and Seeley acted with the intent or purpose to discriminate against

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Plaintiff based upon his being Hispanic.” (Id.) Under the latter theory, the TAC “is devoid

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of any facts that suggest that Defendants Glynn and Seeley harbored any hostility toward

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Plaintiff individually and that as a result of such hostility, the Defendants intentionally

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treated Plaintiff differently from other similarly situated individuals.” (Id. at 19–20.)

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Accordingly, Magistrate Judge Burkhardt recommends that the Court dismiss without

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prejudice and with leave to amend Plaintiff’s equal protection claim against Defendants

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Glynn and Seeley. (Id. at 20.)

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2.

Defendant Zamora

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Magistrate Judge Burkhardt also “finds Plaintiff’s Third Amended Complaint fails

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to plead any facts that support a plausible equal protection claim against Defendant

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Zamora.” (Id.) First, “[t]he Third Amended Complaint is devoid of any facts connecting

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any intentional conduct by Defendant Zamora to Plaintiff’s protected class status.” (Id.)

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Second, “the Third Amended Complaint fails to allege any facts that suggest Defendant

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Zamora harbored any hostility toward Plaintiff individually and that as a result of such

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hostility, she intentionally treated Plaintiff differently from other similarly situated

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individuals.” (Id.) Moreover, the response to Plaintiff’s third-level grievance reveals that

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Defendant Zamora had a rational basis for treating Plaintiff differently from other similarly

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situated individuals, as the medical staff evaluating Plaintiff with respect to the appeal

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issues determined that Plaintiff’s medical treatment was adequate and appropriate and,

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under California law, prisoners may not demand that they be prescribed certain

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medications. (Id. at 20–21.) Magistrate Judge Burkhardt therefore recommends that the

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Court dismiss without prejudice and with leave to amend Plaintiff’s equal protection claim

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against Defendant Zamora. (Id. at 21.)
Plaintiff’s Request for Appointment of Expert

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C.

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Magistrate Judge Burkhardt also recommends that the Court deny without prejudice

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Plaintiff’s request that the Court grant Plaintiff an expert witness (see Opp’n to Glynn &
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Seeley MTD 7–8, ECF No. 72) for failure to comply with the Court’s Local Rules (R&R

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21, ECF No. 110).

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II.

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Discussion
Plaintiff “object[s] to all recommendations of the Magistrate.” (Objs. 1, ECF No.

114.) Accordingly, the Court reviews Magistrate Judge Burkhardt’s R&R de novo.

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A.

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An inmate has an Eighth Amendment right to adequate physical and mental health

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

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the serious medical needs of an inmate is not only inconsistent with the basic standards of

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decency but, more importantly, is antithetical to the Eighth Amendment’s proscription of

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“unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).

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A determination of deliberate indifference involves a two-step analysis consisting of

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both objective and subjective inquiries. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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First, the plaintiff must demonstrate a serious medical need such that failure to provide

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treatment could “result in further significant injury” or “unnecessary and wanton infliction

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of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,

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429 U.S. 97, 104 (1976)). Second, the plaintiff must show that the defendant’s response

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to the medical need was deliberately indifferent. Jett, 439 F.3d at 1096 (citing McGuckin

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v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992)). Deliberate indifference consists of (1) a

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purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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(2) harm caused by the indifference. Id. Such indifference may be manifested when

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“prison officials deny, delay[,] or intentionally interfere with medical treatment, or it may

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be shown by the way in which prison physicians provide medical care.” Hutchinson v.

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United States, 838 F.2d 390, 394 (9th Cir. 1988). This standard is one of subjective

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recklessness. Farmer, 511 U.S. at 839–40. Therefore, mere negligence in responding to

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and treating a medical condition does not rise to the standard of deliberate indifference.

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Estelle, 429 U.S. at 106. Rather, the defendant must have acted or failed to act despite

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knowing of a substantial risk of serious harm. Farmer, 511 U.S. at 843 n.8.

Cruel and Unusual Punishment

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1.

Defendants Glynn and Seeley

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Plaintiff first contests Magistrate Judge Burkhardt’s conclusion that he did not plead

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any facts that Defendants Glynn and Seeley knew of an excessive risk of harm to Plaintiff’s

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health, noting that Defendants do not contest that he had a serious medical need. (Objs. 4,

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ECF No. 114.) While it is true that Defendants do not dispute Plaintiff’s serious medical

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need (see R&R 11, ECF No. 110 (citing Glynn & Seeley MTD Mem. 6–8, ECF No. 63-1;

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Zamora MTD Mem. 6–8, ECF No. 69-1)), that does not mean that Defendants knew of a

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substantial risk of serious harm to Plaintiff, see, e.g., Jett, 439 F.3d at 1096 (explaining two

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prongs of deliberate indifference test).

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Plaintiff next argues that “Defendants could not have determined that Nurse Velardi

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had already addressed all [his] issues” for several reasons: (1) neither the first nor second

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level review addressed the adequacy of Plaintiff’s seizure medication (Objs. 4–5, 6–10,

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ECF No. 114), (2) Plaintiff wrote in his second level grievance that he was suffering from

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severe pain (id. at 5, 11–12), and (3) neither the first nor second level review addressed the

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adequacy of Plaintiff’s request for “neurotins [sic]” (id. at 5–6, 12–15). Plaintiff argues

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that prison administrative officials “can be found liable even for following the advice of

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prison medical officials if it is obvious, even to a layperson, that the person is in need of

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critical medical care.” (Id. at 9 (citing McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009))

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(emphasis in original).) Defendants counter that “Defendants Glynn and Seeley knew that

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Plaintiff was not being denied medications or medical care—only that he was not receiving

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the medication of his choice.” (Reply 3, ECF No. 115.)

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The Court agrees with Magistrate Judge Burkhardt and Defendants that Plaintiff has

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failed adequately to allege that Defendants Glynn and Seeley were deliberately indifferent

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in responding to Plaintiff’s second-level grievance. As Magistrate Judge Burkhardt (see

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R&R 14, ECF No. 110) and Defendants (see Reply 3, ECF No. 115) recognize, prison

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administrative officials are not deliberately indifferent when they rely on the opinions of

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qualified medical staff in responding to a second-level grievance, see, e.g., Peralta, 744

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F.3d at 1087 (affirming judgment as a matter of law in favor of second-level reviewer who
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authorized someone else to sign a second-level response on his behalf where the second-

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level reviewer “understood his role to be administrative” and didn’t think . . . that he should

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second-guess staff dentists’ [who signed the first-level appeals] diagnoses”); Doyle, 2015

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WL 5590728, at *9 (“It simply cannot be said that, by signing off on the denials at the

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second . . . level[], defendants . . . disregarded a substantial risk of harm to [plaintiff]’s

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health by failing to take reasonable steps to abate it.”).

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Here, Defendants Glynn and Seeley’s response to Plaintiff’s second level appeal

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notes that Defendant Velardi’s response to Plaintiff’s first level appeal “stated based on the

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Primary Care Providers interview and exam, [Plaintiff is] being treated adequately for [his]

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back pain which is musculoskeletal in nature.” (TAC 40, ECF No. 59.) Defendants Glynn

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and Seeley then note that although Plaintiff is now requesting “[n]erve pain medication &

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a stronger pain medication for back,” he “ha[s] not provided any new information or

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documentation that would alter the 1st level review findings.” (Id.) Defendants Glynn and

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Seeley reasonably relied on the expertise of Plaintiff’s Primary Care Provide and

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Defendant Velardi, and there is no indication from their response to Plaintiff’s second-level

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grievance that Plaintiff was in need of critical medical care, much less that Defendants

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Glynn and Seeley were made aware of such a need or were deliberately indifferent to it, as

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Plaintiff claims.

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Accordingly, the Court ADOPTS Magistrate Judge Burkhardt’s recommendation

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and DISMISSES WITH PREJUDICE Plaintiff’s Eighth Amendment claims against

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Defendants Glynn and Seeley.

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2.

Defendant Zamora

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Plaintiff first contests Magistrate Judge Burkhardt’s conclusion that there is no

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evidence that Defendant Zamora herself reviewed Plaintiff’s grievance, arguing that the

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fact that the third level response was reviewed by staff under Defendant Zamora’s

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supervision “means that Zamora also had knowledge of what the grievance said and to

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what her staff responded.” (Objs. 16, ECF No. 114.) The Court cannot draw the inference

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Plaintiff urges from the face of the third-level response, which clearly indicates that “[t]his
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appeal was reviewed on behalf of the Deputy Director, Policy and Risk Management

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Services, by staff under the supervision of the Chief, Office of Third Level Appeals-Health

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Care” and “[Plaintiff’s] appeal file . . . w[as] reviewed by licensed clinical staff.” (TAC

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36, ECF No. 59.)

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Turning to Magistrate Judge Burkhardt’s additional bases for dismissing his Eighth

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Amendment claim against Defendant Zamora, Plaintiff argues that “everything stated on

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the 3rd level grievance response by Zamora is all a lie[, a]nd in order to prove [it] is all a

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lie [he] would need to use discovery.” (See Objs. 16–21, ECF No. 114). Additionally,

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while Plaintiff concedes that a difference in judgment based on Plaintiff’s own assessment

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of his medical needs is insufficient to state a claim for deliberate indifference, he notes that

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such is the case “only if the current medication does not put [Plaintiff] in circumstances of

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a serious medical need due to been [sic] ineffective.” (Id. at 21.) Defendants respond that

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“Defendant Zamora noted that Plaintiff’s medical . . . records indicated that Plaintiff had

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been evaluated for seizure disorder, his seizure disorder was currently managed on Keppra,

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he was receiving Elavil for his chronic back pain, and he currently did not meet non-

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formulary criteria for gabapentin.” (Reply 3, ECF No. 115 (citing TAC 36, ECF No. 59).)

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Accordingly,

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[t]he Magistrate Judge properly determined that Defendant
Zamora . . . did not purposely disregard an excessive risk to
Plaintiff’s health since the information that staff provided to her
suggested that all of the medical issues had been adequately
assessed by medical care providers and that Plaintiff merely
presented a different assessment of his medical need than that of
the medical-care professionals.

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(Id.)

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For the reasons set forth above, see supra Part II.A.1, the Court agrees with

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Defendants. As with Defendants Glynn and Seeley, “[i]t simply cannot be said that, by

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signing off on the denials at the . . . third level[], defendant[] . . . disregarded a substantial

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risk of harm to [plaintiff]’s health by failing to take reasonable steps to abate it.” Doyle,

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2015 WL 5590728, at *9. Whether or not Defendant Zamora’s staff relayed “lies” to her
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does not change this analysis, as Defendant Zamora and her staff reasonably relied upon

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the medical information relayed to them by Plaintiff’s Primary Care Provider and

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Defendant Velardi.

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Finally, Plaintiff explains that “there was [sic] reasons why [he] didn’t need to

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specify facts on how supervisor Zamora was liable for her own subordinates[’] actions,”

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namely, (1) “these issue [sic] was never an issue brought up to [Plaintiff] before in order

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for [Plaintiff] to respond, and (2) “the Supervisor Zamora working and participating with

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her subordinates, had knowledge of 3rd level response and the merits of claim.” (Objs.

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21–22, ECF No. 114.) For the same reason that Plaintiff’s first objection to Magistrate

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Judge Burkhardt’s dismissal of this claim fails, this objection therefore does also: the face

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of the third-level response clearly indicates that Defendant Zamora was neither personally

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involved in nor directed her staff in responding to Plaintiff’s third-level grievance. (See

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TAC 36, ECF No. 59.) Therefore, as Magistrate Judge Burkhardt explained, “Plaintiff’s

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Third Amended Complaint fails to allege any facts that suggest Defendant Zamora directed

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her staff to be deliberately indifferent in responding to Plaintiff’s medical needs or

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otherwise personally participated in any deliberately indifferent conduct of her staff.”

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(R&R 17, ECF No. 110.)

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Accordingly, the Court ADOPTS Magistrate Judge Burkhardt’s recommendation

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and DISMISSES WITH PREJUDICE Plaintiff’s Eighth Amendment claims against

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Defendant Zamora.3

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B.

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The “Equal Protection Clause of the Fourteenth Amendment commands that no State

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shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

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essentially a direction that all persons similarly situated should be treated alike.” City of

Equal Protection

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Plaintiff also asks for leave to add Defendant Zamora’s staff to his complaint. (Objs. 22, ECF No. 114.)
To the extent this request can be construed as a motion for leave to amend, the Court DENIES Plaintiff’s
request on the grounds that amendment would be futile for the reasons stated above. See Saul v. United
States, 928 F.2d 829, 843 (9th Cir. 1991) (“A district court does not err in denying leave to amend where
the amendment would be futile . . . or would be subject to dismissal.”)
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Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). An equal protection

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claim may be established by showing that defendants intentionally discriminated against a

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plaintiff based on his membership in a protected class, Comm. Concerning Cmty.

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Improvement v. City of Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009); Serrano v. Francis,

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345 F.3d 1071, 1082 (9th Cir. 2003), or that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state purpose,

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Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601–02 (2008); Lazy Y Ranch Ltd. v.

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Behrens, 546 F.3d 580, 592 (9th Cir. 2008).

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1.

Defendants Glynn and Seeley

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Plaintiff notes that his “contention is that on the facts stated in 3rd Amendment

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Complaint it can be infered [sic] that deffendants [sic] intentionally treated [him] different

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that other similar situated inmates, as there was no rational basis for difference in

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treatment.”

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discriminatory treatment was intentionally directed just at [him], and it was no accident or

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a random act.” (Id.) Sending Plaintiff to a specialist or doctor to address his seizure and

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pain medication “is something that 2nd level reviewers as how Deffendants [sic] were will

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do [sic] for any similar situated inmate because thats [sic] part of their job whenever their

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confronted with individuals expressing facts that are consider serious medical needs.” (Id.

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at 24.)

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deliberately indifferent to his medical needs so they must have violated his equal protection

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rights since they must have treated other inmates differently,” which “is not the basis for

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an equal protection claim.” (Reply 4, ECF No. 115 (citing Objs. 22–26, ECF No. 114).)

(Objs. 23, ECF No. 114.)

Additionally, “it can also be inferred that

Defendants respond that “Plaintiff essentially argues that Defendants were

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Plaintiff has not alleged that Defendants Glynn and Seeley treated him any

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differently from any other inmate filing a grievance because of his membership in any

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cognizable protected class or that Defendants Glynn and Seeley harbored any hostility

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against Plaintiff individually.

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Burkhardt’s recommendation and DISMISSES WITHOUT PREJUDICE Plaintiff’s

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equal protection claim against Defendants Glynn and Seeley.

Accordingly, the Court ADOPTS Magistrate Judge

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2.

Defendant Zamora

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Plaintiff contests that “those rational basis [Defendant Zamora provided in the third-

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level response] are actually unfundamental [sic].” (Objs. 25, ECF No. 114.) Specifically,

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“[b]y Zamora not doing what they should have done, and what they do whenever other

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similar situated individuals bring forward claims like [Plaintiff’s], [i.e., sending Plaintiff to

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a specialist,] this reveals that she intentionally disregarded a multiple serious medical needs

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[Plaintiff] brought forward to her, as she left [him] to suffer daily without any help.” (Id.)

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Moreover, a nurse’s determination over a year ago that Plaintiff was prescribed the correct

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medication is not a rational basis for Defendant Zamora to deny Plaintiff help. (Id. at 25–

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26.) Defendants’ response to Plaintiff’s Objections concerning Defendant Zamora are

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identical to those raised regarding Defendants Glynn and Seeley. (See Reply 3–4, ECF

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No. 115.)

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The Court again agrees with Defendants and Magistrate Judge Burkhardt that

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Plaintiff’s equal protection claim against Defendant Zamora is deficient because Plaintiff

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has failed to allege any facts suggesting that Defendant Zamora discriminated against

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Plaintiff based upon his membership in a protected class or that Defendant Zamora

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intentionally treated Plaintiff differently from other similarly situated individuals because

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she harbored any hostility toward Plaintiff. The Court also agrees with Magistrate Judge

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Burkhardt that Defendant Zamora’s reliance upon California law and Plaintiff’s evaluation

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by medical staff provides a rational basis for denying Plaintiff’s third-level grievance.

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Accordingly, the Court ADOPTS Magistrate Judge Burkhardt’s recommendation and

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DISMISSES WITHOUT PREJUDICE Plaintiff’s equal protection claim against

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Defendant Zamora.
Plaintiff’s Request for Appointment of Expert

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C.

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Neither Plaintiff nor Defendants address Magistrate Judge Burkhardt’s

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recommendation that the Court deny without prejudice Plaintiff’s request for appointment

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of an expert. (See generally Objs., ECF No. 114; Reply, ECF No. 115.) Plaintiff does,

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however, request both that he be given leave to amend his complaint and that the Court
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send him a copy of his Objections (Objs. 26, ECF No. 114), to neither of which requests

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Defendants respond (see generally Reply, ECF No. 115).

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The Court agrees with Magistrate Judge Burkhardt’s recommendation to DENY

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WITHOUT PREJUDICE Plaintiff’s request that the Court grant him an expert witness

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for failure to comply with Civil Local Rule 7.1. The Court additionally ORDERS the

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Clerk of the Court to send Plaintiff a copy of his Objections (ECF No. 114). Finally, the

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Court GRANTS IN PART AND DENIES IN PART Plaintiff’s request that he be given

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leave to amend, as detailed above. Specifically, Plaintiff will be granted leave to amend

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his equal protection claims against Defendants Glynn, Seeley, and Zamora, but will not be

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granted leave to amend his Eighth Amendment claims against those defendants.

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CONCLUSION

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In light of the foregoing, the Court:

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1.

OVERRULES Plaintiff’s Objections (ECF No. 114);

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2.

ADOPTS in its entirety Magistrate Judge Burkhardt’s R&R (ECF No. 110);

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3.

GRANTS Defendants’ MTDs (ECF Nos. 63, 69). Specifically, the Court

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DISMISSES WITH PREJUDICE Plaintiff’s Eighth Amendment claims against

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Defendants Glynn, Seeley, and Zamora and DISMISSES WITHOUT PREJUDICE

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Plaintiff’s equal protection claims against Defendants Glynn, Seeley, and Zamora.

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Plaintiff MAY FILE an amended complaint within sixty (60) days of the date on which

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

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may result in dismissal of the aforementioned claims with prejudice;

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4.

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///

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///

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///

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///

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///

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DENIES AS MOOT Plaintiff’s Motion for Consideration (ECF No. 112);

///
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5.

DENIES WITHOUT PREJUDICE Plaintiff’s Request for Appointment of

Expert; and

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6.

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IT IS SO ORDERED.

ORDERS the Clerk of the Court to send Plaintiff a copy of ECF No. 114.

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Dated: September 9, 2016

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