Nava v. Velardi et al

Filing 37

ORDER granting in part and denying in part 28 Defendants Motion to Dismiss; and Issuing and Order to Show Cause. The Court: 1) GRANTS Defendant Ortega's Motion to Dismiss Plaintiff's Eighth Amendment claims; 2) DENIES Defendants Silva, S eeley. and Walker's Motion to Dismiss Plaintiff's Eighth Amendment claims; 3) DENIES Defendants Silva Seeley or Ortega's Motion to Dismiss Plaintiff's retaliation claims; 4) GRANTS Defendant Walker's Motion to Dismiss Plainti ff's retaliation claims. 5) Defendants will serve and file an Answer to Plaintiff's FAC within the time set forth in Fed.R.Civ.P. 12(a)(4)(A) to the remaining claims. It is further ordered that: 6) Plaintiff must show cause no later than th irty (30) days from the date this Order is filed why the claims against Defendants Velardi, Canlas, Mellon, S. Roberts, J. Walker and Clifton should not be dismissed for want of prosecution pursuant to Fed.R.Civ.P. 4(m). If Plaintiff fails to provide the Court with documentation demonstrating proper service on these Defendants within thirty (30) days from the date this Order is filed, the claims against them in this action will be dismissed without prejudice. Signed by Judge Anthony J. Battaglia on 1/11/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 FABIAN NAVA, CDCR #AH-0190, Case No.: 3:15-cv-01156-AJB-BLM 13 14 ORDER: Plaintiff, vs. 17 P. VELARDI; J. SILVA; AVELINO CANLAS; M. MELLON; ROGELIO ORTEGA; S. ROBERTS; KYLE SEELEY; J. WALKER; ROBERT WALKER; DAVID CLIFTON , 18 1) GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS PURSUANT TO Fed. R. Civ. P. 12(b)(6) [ECF No. 28] Defendants. 15 16 AND 19 2) ISSUING AN ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE DISMISSED FOR FAILING TO PROSECUTE 20 21 22 23 Introduction 24 25 Fabian Nava (“Plaintiff”), a prisoner at Richard J. Donovan Correctional Facility 26 (“RJD”) in San Diego, California, proceeding pro se and in forma pauperis (“IFP”), is 27 proceeding with a First Amended Complaint (“FAC”) filed pursuant to the Civil Rights 28 Act, 42 U.S.C. § 1983 (ECF No. 13). 1 3:15-cv-01156-AJB-BLM 1 Defendants Seeley, Rogelio Ortega, Robert Walker and Jason Silva have filed a 2 Motion to Dismiss all claims against them alleged in Plaintiff’s FAC pursuant to FED. R. 3 CIV. P. 12(b)(6). See Defs. Mot. to Dismiss (ECF No. 28).1 The Court issued a briefing 4 schedule, determined that no proposed findings and recommendations by the magistrate 5 judge pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. CAL. CIVLR 72.3(a) would be 6 necessary, and permitted Plaintiff an opportunity to file an Opposition. On October 27, 7 2016, Plaintiff filed his Opposition but Defendants have not filed a Reply. (ECF No. 35.) 8 Having considered the Motion on the papers submitted, the Court GRANTS in part, 9 and DENIES in part, Defendants’ Motions to Dismiss pursuant to FED. R. CIV. P. 12(b)(6). 10 Plaintiff’s First Amended Complaint 11 I. Factual Allegations 12 On February 18, 2010, Plaintiff was “sent to an orthopedic specialist” by prison 13 officials. (FAC at 11.) At that time, Plaintiff claims he was informed that he “had no 14 option (for life) but to wear a pair of orthopedic shoes/boots, or plaintiff would suffer 15 physical harm.” (Id. at 11; Ex. 1, CDCR Comprehensive Accommodation Chrono dated 16 February 22, 2010.) Approximately two years later on January 31, 2012, Plaintiff had an 17 x-ray of his right knee and claims that it “confirmed a 3mm metallic fragment” in his right 18 knee which was “causing plaintiff severe pain.” (Id. at 11.) However, Plaintiff alleges Dr. 19 Kyle Seeley “refused to provide him with adequate footwear and pain management” on the 20 grounds that it was “too costly for the [CDCR or RJD] to worry about fixing.” (Id.) 21 On March 16, 2012, Plaintiff was examined by Nurse Practitioner Pamela Velardi 22 who then rescinded Plaintiff’s chrono for orthopedic shoes. (Id.) 23 Defendant Velardi made a note in his chart that Plaintiff indicated he would file a grievance Plaintiff claims 24 25 1 26 27 28 No other Defendants have yet to be served, although the U.S. Marshal has returned summonses as unexecuted as to Defendants Velardi, Mellon, Clifton and Canlas (ECF Nos. 22-25). No summons has been returned for Defendants S. Roberts and J. Walker nor have these Defendants joined in the Motion currently pending before the Court. 2 3:15-cv-01156-AJB-BLM 1 and further claims Defendant Velardi commented that filing a grievance “would be a 2 mistake.” (Id.) Instead of providing Plaintiff with his orthopedic shoes, Defendant Velardi 3 issued Plaintiff “a pair of shoe insoles because it was ‘much less expensive than the 4 footwear.’” (Id. Ex. 4, Comprehensive Accommodation Chrono dated April 17, 2012.) 5 Plaintiff was “performing his assigned duties as a Housing Unit Porter” on January 6 25, 2013 when his “right leg/knee/ankle caused him to suffer pain and he lost his balance 7 then fell down a flight of stairs.” (Id. at 11.) He alleges that his supervisor, Correctional 8 Officer McGee2 witnessed the fall. (Id.) Plaintiff was examined by Dr. M. Mellon whom 9 he claims was already aware of Plaintiff’s knee condition but refused to provide him 10 treatment. (Id. at 11-12.) Plaintiff further alleges that Defendant Mellon “falsified the 11 record” by indicating that no one had witnessed his fall. (Id. at 12.) 12 Plaintiff filed an administrative grievance on May 7, 2012. (See FAC, Ex. 6, 13 Patient/Inmate Health Care Appeal dated May 7, 2012.) Plaintiff claims both Defendants 14 Velardi and Seeley continued to refuse Plaintiff “adequate medical care because of cost 15 and due to plaintiff filing medical grievance(s).” (Id. at 12.) Plaintiff then sought 16 assistance from the “Prison Law Office” who then contacted Defendant Seeley regarding 17 Plaintiff’s medical care. (Id.) However, Plaintiff claims Defendant Seeley provided the 18 Prison Law Offices with “falsehoods.” (Id.) 19 On September 20, 2013, Plaintiff was seen by Dr. Rogelio Ortega who was 20 Plaintiff’s primary care physician. (Id.) Plaintiff alleges that Defendant Ortega informed 21 him that he was “working on getting plaintiff surgery.” (Id.) Plaintiff filed another 22 grievance claiming that RJD medical staff was refusing Plaintiff adequate medical care 23 based on Defendant Velardi’s previous actions. (Id. at 11, Ex. 12, Patient/Inmate Health 24 Care Appeal dated December 16, 2013.) 25 26 27 28 2 Correctional Officer McGee is not a named Defendant. 3 3:15-cv-01156-AJB-BLM 1 Plaintiff claims Defendant Ortega prescribed physical therapy for him. 2 However, when Plaintiff was taken to see the physical therapist, David Clifton, he refused 3 to provide Plaintiff with treatment “based on [Clifton’s] opinion that Plaintiff needed 4 surgery first.” (Id. at 13.) Defendant Clifton also believed that Plaintiff should take a 5 different pain medication but allegedly told Plaintiff that “he doubted plaintiff would get 6 proper pain medication or surgery as it was very expensive and therefore, RJD would not 7 approve it as a matter of policy.” (Id.) (Id.) 8 On February 13, 2014, Plaintiff claims that Defendant Ortega subscribed “Lyrica” 9 for his “severe pain” despite the fact that a narcotic would be more effective. (Id.) 10 Defendant Ortega informed Plaintiff that the reason he provided this medication was 11 because the RJD “medical staff were fed up with plaintiff filing grievances.” (Id.) Plaintiff 12 claims that Dr. R. Walker denied the request for Lyrica “even though it was proven that 13 plaintiff was in severe pain and required medication.” (Id.) 14 Plaintiff was seen a few weeks later by Dr. Avenilo Canlas who became is primary 15 care physician. (Id.) Plaintiff requested pain medication for his “severe ongoing pain.” 16 (Id.) However, Plaintiff claims Defendant Canlas, following the previous denial by 17 Defendant Walker, refused Plaintiff’s request and informed him that he would not order it 18 for Plaintiff “especially since you continue to file grievance(s).” (Id.) 19 On July 14, 2014, Plaintiff was seen by Dr. Jason Silva. (Id. at 14.) Plaintiff alleges 20 Defendant Silva “acknowledged plaintiff’s severe medical conditions” but based on 21 Plaintiff’s history of filing medical grievances “decided not to order any treatment not 22 already ordered previously, regardless of plaintiff’s pain, injury level or need.” (Id.) 23 Plaintiff claims that Defendant Silva told him that RJD was “strapped for money right now 24 due to all the construction on every medical facility at RJD.” (Id.) 25 After his examination with Defendant Silva, Plaintiff filed another administrative 26 grievance requesting pain medication and medical care for his “knee/ankle/leg injuries.” 27 (Id. at 14-15.) While Plaintiff alleges Defendant Silva must respond to the initial level of 28 this grievance, he has not responded to date. (Id. at 15.) On September 5, 2014, Plaintiff 4 3:15-cv-01156-AJB-BLM 1 claims “Dr. Silva finally ordered plaintiff pain medication of Lyrica.” (Id.) However, he 2 alleges that he was “forced” to sign a “contract stating he could discontinue the medication 3 for any reason.” (Id.) Plaintiff claims that RJD staff “shopped around” to obtain new 4 medical test results for Plaintiff’s condition which they used to show that there was “no 5 damage than previously known to be present in Plaintiff.” (Id.) Plaintiff claims that he 6 continues to suffer “irreparable harm” as a result of Defendants’ actions. (Id. at 16.) 7 8 9 Discussion II. Legal Standards A. Rule 12(b)(6) Motion to Dismiss 10 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 11 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 12 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s substantive merits, 13 “a court may [ordinarily] look only at the face of the complaint to decide a motion to 14 dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 15 However, courts may consider exhibits that are attached to the complaint. See FED. R. CIV. 16 P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the 17 pleading for all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 18 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, 19 Inc., 583 F.2d 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the 20 complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, 21 exhibits that contradict the allegations of a complaint may fatally undermine the 22 complaint’s allegations. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 23 Cir. 2001) (a plaintiff can “plead himself out of a claim by including . . . details contrary 24 to his claims.” (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 25 1998) (courts “are not required to accept as true conclusory allegations which are 26 contradicted by documents referred to in the complaint.”))); see also Nat’l Assoc. for the 27 Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th 28 Cir.2000) (courts “may consider facts contained in documents attached to the complaint” 5 3:15-cv-01156-AJB-BLM 1 to determining whether the complaint states a claim for relief). 2 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial 4 plausibility when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 7 570 (2007)). 8 “All allegations of material fact are taken as true and construed in the light most 9 favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 10 (9th Cir. 1996) (citing Nat’l Wildlife Fed. v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995)). 11 The Court need not, however, “accept as true allegations that are merely conclusory, 12 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988 13 (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)); see also 14 Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported 15 by mere conclusory statements, do not suffice.”); Papasan v. Allain, 478 U.S. 265, 286 16 (1986) (on motion to dismiss, court is “not bound to accept as true a legal conclusion 17 couched as a factual allegation.”). “[T]he pleading standard Rule 8 announces does not 18 require ‘detailed factual allegations,’ but it demands more than an unadorned, the 19 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 20 550 U.S. at 555). 21 Thus, “[w]hile legal conclusions can provide the framework of a complaint, they 22 must be supported by factual allegations. When there are well-pleaded factual allegations, 23 a court should assume their veracity and then determine whether they plausibly give rise 24 to an entitlement to relief.” Id. at 679. “The plausibility standard is not akin to a ‘probability 25 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 26 unlawfully.” Id. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ 27 a defendant’s liability, it ‘stops short of the line between possibility and plausibility of 28 ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. at 570 (when a plaintiff has not 6 3:15-cv-01156-AJB-BLM 1 “nudged [his] claims across the line from conceivable to plausible, [his] complaint must 2 be dismissed.”)). 3 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 4 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 5 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 6 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 7 B. 8 “In civil rights cases where the plaintiff appears pro se, the court must construe the 9 pleadings liberally and must afford [the] plaintiff the benefit of any doubt.” Karim-Panahi 10 v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 11 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 12 Cir. 1992). The rule, however, “applies only to a plaintiff’s factual allegations.” Neitzke v. 13 Williams, 490 U.S. 319, 330 n.9 (1989). In giving liberal interpretation to a pro se civil 14 rights complaint, courts may not “supply essential elements of claims that were not initially 15 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 16 “Vague and conclusory allegations of official participation in civil rights violations are not 17 sufficient to withstand a motion to dismiss.” Id.; see also Jones v. Cmty. Redev. Agency, 18 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts 19 insufficient to state a claim under § 1983). 20 III. Pro Se Litigants Defendants’ Motion 21 Defendants Seeley, Ortega, Walker and Silva move to dismiss all claims against 22 them found in Plaintiff’s FAC. (Defs. Mot. at 2.) Specifically, they claim Plaintiff has 23 failed to alleges facts sufficient to state a claim “under the First, Eighth, and Fourteenth 24 Amendments to the United States Constitution.” (Id.) As stated above, Plaintiff has filed 25 an Opposition. The Court has reviewed Plaintiff’s FAC and finds that there is no attempt 26 to allege a Fourteenth Amendment claim and Defendants have not addressed Plaintiff’s 27 conspiracy claims brought pursuant to 42 U.S.C. § 1986. (See FAC at 8, 18.) Therefore, 28 the conspiracy claims remain in the action. 7 3:15-cv-01156-AJB-BLM 1 2 A. Eighth Amendment Inadequate Medical Care Claims 1. Standard of Review 3 Only “deliberate indifference to serious medical needs of prisoners constitutes the 4 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” 5 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks 6 omitted). “A determination of ‘deliberate indifference’ involves an examination of two 7 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the 8 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 9 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 10 1997) (en banc) (quoting Estelle, 429 U.S. at 104); see also Wilhelm v. Rotman, 680 F.3d 11 1108, 1113 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 12 First, “[b]ecause society does not expect that prisoners will have unqualified access 13 to health care, deliberate indifference to medical needs amounts to an Eighth Amendment 14 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 15 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 16 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 17 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). 18 “The existence of an injury that a reasonable doctor or patient would find important and 19 worthy of comment or treatment; the presence of a medical condition that significantly 20 affects an individual’s daily activities; or the existence of chronic and substantial pain are 21 examples of indications that a prisoner has a ‘serious’ need for medical treatment.” Id., 22 citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990); Hunt v. Dental Dept., 23 865 F.2d 198, 200-01 (9th Cir. 1989). 24 Here, none of the Defendants argue that Plaintiff has failed to allege facts to 25 plausibly show that his medical needs were ‘serious,’ and thus, the Court finds Plaintiff’s 26 FAC is sufficiently pleaded in this regard. 27 Therefore, the Court must next decide whether Plaintiff’s FAC further contains 28 sufficient “factual content” to show that Defendants acted with “deliberate indifference” to 8 3:15-cv-01156-AJB-BLM 1 his needs. McGuckin, 914 F.2d. at 1060; see also Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 2 678. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 3 1060 (9th Cir. 2004). 4 2. Claims against Defendant Seeley 5 Plaintiff alleges Defendant Seeley, the Chief Medical Officer, was deliberately 6 indifferent to his serious medical needs when he refused to supply Plaintiff with orthotic 7 shoes which were a form of treatment for his medical condition. (See FAC at 11-12.) 8 Plaintiff claims that Defendant Seeley denied Plaintiff this treatment due to their expense. 9 (Id.) In support of his showing for the need of these orthotic shoes, Plaintiff supplied a 10 “Comprehensive Accommodation Chrono” dated February 22, 2010. (Id., Ex. 1.) In this 11 “chrono” it is noted that “the treatment of [Plaintiff’s] condition mandates the exclusive 12 use of this footwear to prevent physical harm.” (Id.) At the top portion of this form, it 13 informs the prescribing physician to “[c]ircle P if the accommodation is to be permanent, 14 or T if the accommodation is to be temporary.” (Id.) The “P” is circled next to the 15 indication that orthotic footwear is to be provided to Plaintiff. (Id.) 16 Plaintiff argues that this demonstrates “deliberate indifference” on the part of 17 Defendant Seeley when he removed this accommodation for Plaintiff. (Pl.’s Opp’n at 6.) 18 In response, Defendants argue that a decision to review a chrono is to be made annually, 19 as also stated on the form. (Defs.’ Mot. at 23-24.) In addition, Defendants argue that the 20 decision to deny Plaintiff’s “is supported by multiple examinations showing normal stance 21 and gait, ability to walk unassisted, full range of motion in the ankle, ability to tiptoe well, 22 ability to work, absence of atrophy in the lower extremities, ability to squat, normal muscle 23 strength, and apparent ability to accommodate the ankle pain with the insoles.” (Id. at 24.) 24 Defendants then refer to a number of medical documents Plaintiff has attached to his FAC 25 as exhibits. (Id.) 26 However, Plaintiff argues that the annual review of a permanent “chrono” is to 27 review the inmate’s information and not a review of the necessity for the permanent chrono 28 itself. Moreover, as Plaintiff notes in his Opposition, he alleges in his FAC that the decision 9 3:15-cv-01156-AJB-BLM 1 by Seeley to deny Plaintiff the orthotic shoes was based on their cost, along with claims of 2 retaliation for filing grievances, and not on the medical examinations or tests that came 3 after Defendant Seeley’s treatment of Plaintiff. (See Pl.’s Opp’n at 7; see also FAC at 12.) 4 Defendants argument would have this Court interpret many medical records and arrive at 5 conclusions that are outside the allegations found in Plaintiff’s FAC. In order to show 6 “deliberate indifference,” a Plaintiff must demonstrate that “(a) a purposeful act or failure 7 to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the 8 indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096.) Here, the Court 9 finds that Plaintiff has alleged facts sufficient to state an Eighth Amendment claim against 10 11 Defendant Seeley. 3. Defendants Ortega and Silva 12 Plaintiff alleges that in 2013 Defendant Ortega was his primary physician. (See FAC 13 at 10.) Plaintiff also acknowledges that Defendant Ortega informed him that he was 14 “working on getting plaintiff surgery” and prescribed physical therapy. (Id. at 11.) He 15 also acknowledges that Defendant Ortega prescribed the medication Plaintiff wanted even 16 though Defendant Ortega expressed doubts that it would be approved due to cost. (Id.) 17 Defendants argue that Plaintiff received several examinations from Defendant 18 Ortega and Silva, was provided different pain medications and their “progress notes recited 19 comprehensive examinations, diagnostic testing, and treatment.” (Defs.’ Mot. at 25.) 20 Plaintiff argues that multiple “meaningless medical procedures” is not indicative of 21 adequate medical care. (Pl.’s Opp’n at 15.) 22 The Court agrees with Defendant Ortega that Plaintiff has not alleged facts to show 23 that he was deliberately indifferent to Plaintiff’s serious medical needs. Plaintiff alleges 24 that Defendant Ortega prescribed physical therapy, medication and informed Plaintiff that 25 he was seeking to get authorization for Plaintiff to receive surgery. None of these 26 allegations rise to the level of “deliberate indifference.” 27 However, with respect to Defendant Silva, Plaintiff alleges that Defendant Silva told 28 Plaintiff that based on Plaintiff’s history of filing medical grievances he “decided not to 10 3:15-cv-01156-AJB-BLM 1 order any treatment not already ordered previously, regardless of plaintiff’s pain, injury 2 level or need.” (See FAC at 14.) Plaintiff claims that Defendant Silva waited two months 3 to prescribe medication and he suffered severe pain as a result. (Id.) The Court finds that 4 Plaintiff’s claims that Defendant Silva allegedly refused to provide treatment as a result of 5 Plaintiff’s grievance history does sufficiently allege an Eighth Amendment inadequate 6 medical care claim. 7 4. Defendant Walker 8 Defendants maintain that Defendant Walker was not Plaintiff’s primary care 9 physician and was only involved in Plaintiff’s care when he “denied a non-formulary 10 request for Mr. Nava to receive Lyrica.” (Defs.’ Mot. at 26.) Plaintiff argues it is irrelevant 11 that Defendant Walker was not his primary care physician but instead, he argues that 12 Defendant Walker denied the Lyrica as a matter of prison policy rather than an individual 13 review of Plaintiff’s medical condition and medical needs. (Pl.’s Opp’n at 16.) In 14 furtherance of that argument, Plaintiff argues that he was given Lyrica several months later 15 but his medical records do not reflect a change in his medical condition so there is no valid 16 reason why he was denied this medication for over six months. (Id.) Moreover, Plaintiff 17 claims that when the decision was made to allow him to take this drug, there is no 18 documentation to show how the “change of denial of pain medication into an approval” 19 took place. (Id.) 20 Throughout the Defendants’ Motion, they point to evidence in the record that 21 requires interpretation that is beyond the scope of a motion to dismiss. At this stage of the 22 proceedings, the Court finds that Plaintiff has alleged facts sufficient to state an Eighth 23 Amendment claim against Defendant Walker. 24 B. 25 Defendants also move to dismiss Plaintiff’s claims of retaliation in violation of his 26 First Amendment rights. (See Defs.’ Mot. at 27-28.) In order to state a retaliation claim, 27 Plaintiff must allege facts to support the following five factors: “(1) an assertion that a state 28 actor took some adverse action against an inmate (2) because of (3) that prisoner’s Retaliation claims 11 3:15-cv-01156-AJB-BLM 1 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 2 Amendment right, and (5) the action did not reasonably advance a legitimate correctional 3 goal.” Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005); see also Barnett v. Centoni, 4 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam), Resnick v. Hayes, 213 F.3d 443, 449 (9th 5 Cir. 2000); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). 6 Defendants only argue that Plaintiff has failed to state a retaliation claim because he 7 has not alleged facts supporting the first element of the claim in that there are no facts to 8 show that Defendants took any “adverse action” against him. (See Defs.’ Mot. at 27-28.) 9 However, throughout his FAC, Plaintiff claims he was denied medical treatment because 10 he was filing multiple administrative grievances. Of fundamental import to prisoners are 11 their First Amendment “right[s] to file prison grievances,” Bruce v. Ylst, 351 F.3d 1283, 12 1288 (9th Cir. 2003), and to “pursue civil rights litigation in the courts.” Schroeder v. 13 McDonald, 55 F.3d 454, 461 (9th Cir. 1995). 14 Plaintiff alleges Defendant Seeley refused “Plaintiff adequate medical treatment care 15 because of cost and due to Plaintiff filing medical grievances.” (FAC at 12.) Plaintiff 16 alleges Defendant Ortega provided Plaintiff with a less costly, less effective pain 17 medication because “medical staff were fed up with Plaintiff filing grievances.” (Id. at 13.) 18 Plaintiff claims that Defendant Silva, due to Plaintiff filing medical grievances, “decided 19 not to order any treatment not already ordered previously, regardless of Plaintiff’s pain, 20 injury level or need.” (Id. at 14.) Based on these allegations, the Court finds that Plaintiff 21 has stated a retaliation claim against these Defendants. 22 However, as to Defendant Walker, the Court finds that Plaintiff has failed to state a While Defendant Walker did deny Plaintiff’s request for pain 23 retaliation claim. 24 medication, he did so through the grievance process. There are no allegations that Walker 25 was aware of any of Plaintiff’s prior grievances, nor is there an allegation that Walker 26 denied Plaintiff’s grievance because of his past history. Therefore, the Court finds that 27 Plaintiff has not stated a retaliation claim against Defendant Walker. 28 /// 12 3:15-cv-01156-AJB-BLM 1 IV. Remaining Defendants A review of the Court’s docket indicates that Plaintiff has failed to properly serve 2 3 Defendants Velardi, Canlas, Mellon, S. Roberts, J. Walker and Clifton. 4 Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide 5 the Marshal with sufficient information to effect service, the court’s sua sponte dismissal 6 of those unserved defendants is appropriate under Fed.R.Civ.P. 4(m)). See Walker v. 7 Accordingly, this Court ORDERS Plaintiff to show cause no later than thirty days 8 (30) after this Order is filed, why the claims against these Defendants should not be 9 dismissed for want of prosecution pursuant to Fed.R.Civ.P. 4(m). If Plaintiff wishes to 10 proceed with his claims against these Defendants he must provide the Court with proof of 11 proper service within thirty (30) days from the date this Order is filed. Otherwise, 12 Defendants Velardi, Canlas, Mellon, S. Roberts, J. Walker and Clifton will be dismissed 13 from this action without prejudice. 14 Conclusion 15 For all the reasons discussed, the Court: 16 1) 17 Amendment claims; 18 19 2) 3) DENIES Defendants Silva Seeley or Ortega’s Motion to Dismiss Plaintiff’s retaliation claims; 22 23 DENIES Defendants Silva, Seeley. and Walker’s Motion to Dismiss Plaintiff’s Eighth Amendment claims; 20 21 GRANTS Defendant Ortega’s Motion to Dismiss Plaintiff’s Eighth 4) GRANTS Defendant Walker’s Motion to Dismiss Plaintiff’s retaliation claims. 24 5) Defendants will serve and file an Answer to Plaintiff’s FAC within the time 25 set forth in Fed.R.Civ.P. 12(a)(4)(A) to the remaining claims. 26 /// 27 /// 28 /// 13 3:15-cv-01156-AJB-BLM 1 It is further ordered that: 2 6) Plaintiff must show cause no later than thirty (30) days from the date this 3 Order is filed why the claims against Defendants Velardi, Canlas, Mellon, S. Roberts, J. 4 Walker and Clifton should not be dismissed for want of prosecution pursuant to 5 Fed.R.Civ.P. 4(m). If Plaintiff fails to provide the Court with documentation demonstrating 6 proper service on these Defendants within thirty (30) days from the date this Order is filed, 7 the claims against them in this action will be dismissed without prejudice. 8 9 IT IS SO ORDERED. 10 11 Dated: January 11, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 3:15-cv-01156-AJB-BLM

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