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Theodore Butler v. Clark Kelso

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 2, 2013

THEODORE BUTLER,
PLAINTIFF,
v.
CLARK KELSO,
J. WALKER,
M. GLYNN,
RICKI BARNETT,
P. JAYUNSUNDARA, AND L.D. ZAMORA,
DEFENDANTS.

The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION TO AMEND [ECF NO. 69]

Plaintiff Theodore Butler, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on November 16, 2011, pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 4]. On May 23, 2012, he filed a First Amended Complaint alleging that Defendants, prison officials, violated his Eighth Amendment right to be free from cruel and unusual punishment by acting with deliberate indifference to his serious medical needs. (First Am. Compl. 4-8, ECF No. 23.)*fn1

Defendant Kelso filed an Answer on June 7, 2012 [ECF No. 26]. The remaining Defendants, Jayunsundara, Walker, Rivera, Glynn, Zamora, and Barnett, filed an Answer on July 5, 2012 [ECF No. 38].

Plaintiff's "Motion To Amend His Complaint's Prayer For Relief To Include Request For Prison Release Order" ("Motion to Amend") was filed nunc pro tunc to October 17, 2012 [ECF No. 69]. Defendant Kelso filed a Notice of Non-opposition to Plaintiff's Motion to Amend on November 1, 2012 [ECF No. 71]. Jayunsundara, Walker, Rivera, Glynn, Zamora, and Barnett filed Defendants' Opposition to Plaintiff's Motion to Amend on November 9, 2012 [ECF No. 73].

Because Butler requested that he be allowed to amend his Complaint to include a request for a prison release order, see Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69, on November 13, 2012, the Court directed Defendants to file a supplemental brief "addressing the applicability of Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) . . . ." (Mins. 1, ECF No. 74.) Defendant Kelso filed his supplemental brief on November 19, 2012, in response to the order [ECF No. 76]. The remaining Defendants also submitted their Court-ordered supplemental brief on the same date. [ECF No. 77].*fn2

Butler filed a Reply to Defendants' Opposition on November 28, 2012 [ECF No. 81].

For the reasons discussed below, the Motion to Amend [ECF No. 69] is DENIED.

I. FACTUAL BACKGROUND

This is a civil rights action brought under 42 U.S.C. § 1983 by a California state prisoner [ECF No. 23]. Butler contends that his constitutional rights were violated while he was incarcerated at Richard J. Donovan State Prison between May 19, 2010, and October 19, 2011. (See First Am. Compl. 3, ECF No. 23.) Plaintiff maintains that the Defendants violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. (See id. at 4.) He alleges that Defendants Kelso, Walker, Barnett, Glynn, and Zamora refused to authorize a drug needed to treat Butler's hepatitis C virus. (Id. at 6-7.) Plaintiff further contends that Defendant Glynn reviewed Plaintiff's administrative appeal at the second level and responded, "You will receive hepatitis C medication if recommended by the Infectious Disease Specialist . . . ." (Id. at 7, 39.) Butler asserts that he was seen by a specialist who recommended boceprevir, a protease inhibitor, but Defendants continued to deny him the drug. (Id. at 7.) Defendant Jayunsundara is a nurse practitioner at the prison. (Id. at 8.) Plaintiff asserts that Jayunsudara denied his request for "reasonable accommodation of outpatient medical diet and dietary supplements." (Id.)

II. DISCUSSION

A. Motion Liberally Construed

In Plaintiff's current motion, he requests that the Court allow him to amend his First Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). (Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.) Butler wishes to include a request for a "Prison Release Order" in his prayer for relief. (Id.) Although Plaintiff alleges that he is moving to amend only to add an additional prayer for relief, his request is based on allegations not asserted in his original or First Amended Complaint. (See id.; see generally First Am. Compl., ECF No. 23.) Butler is seeking a Prison Release Order "due to prison overcrowding -- and the financial crisis of California Prison Health Care Services as direct result." (Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.) Other than this motion, Plaintiff's pleadings make no mention of prison overcrowding as a basis for relief. (See generaly Compl., ECF No. 1; First Am. Compl., ECF No. 23.)

Thus, construing Plaintiff's motion liberally, as required by Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court finds that Butler's motion is more properly construed as a motion for leave to amend to include an additional Eighth Amendment violation based on prison overcrowding, and to add an additional prayer for relief based on this claim.

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

1. Legal Standards

a. Sua sponte dismissal of claims

The Prison Litigation Reform Act of 1995 ("PLRA") requires courts to review complaints filed by prisoners against officers or employees of governmental entities. See 28 U.S.C.A. §§ 1915(e)(2)(B), 1915A(b) (West 2012); Lopez v. Smith, 203 F.3d 1122, 1124, 1126-28 (9th Cir. 2000) (en banc). Courts must dismiss complaints or any portion of complaints that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. Lopez v. Smith, 203 F.3d at 1126-27.

Section 1915(e)(2)(B)(ii) essentially "'parallels the language of Federal Rule of Civil Procedure 12(b)(6).'" Id. at 1127 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Section 1915(e)(2)(B)(ii) requires the Court to dismiss the case if "'at any time . . . the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.'" Barren, 152 F.3d at 1194 (quoting 28 U.S.C. § 1915(e)(2)(B)(ii)). The same standard of review applies to a sua sponte dismissal under § 1915(e)(2)(B)(ii) or a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005) (citing id.).

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

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In both, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 663 (2009), the Supreme Court held that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 566 U.S at 678 (quoting Twombly, 550 U.S. at 555).

Butler's pleading must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678. The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Twombly, 550 U.S. at 563 n.8.

Further, the court need not accept generalized allegations in the complaint as true; rather, it must "'examine whether [they] follow from the description of facts as alleged by the plaintiff.'" Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F. Supp. 782, 785 (C.D. Cal. 1986)); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, Inc., 382 F.3d at 973 (quoting Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

c. Standards applicable to pro se litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient . . . ." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

Where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

d. Stating a claim under 42 U.S.C. § 1983

To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2012); Shah v. Cnty. of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).

e. Stating a claim for deliberate indifference

The Eighth Amendment requires that inmates have "ready access to adequate medical care." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). Deliberate indifference to medical needs violates the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle, 429 U.S. at 103. Deliberate indifference to serious medical needs consists of two requirements, one objective and the other subjective. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Lopez, 203 F.3d at 1132-33 (quoting Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995)). The plaintiff must first establish a "serious medical need" by showing that "failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)). "Second, the plaintiff must show the defendant's response to the need was deliberately indifferent." Id. (citing McGuckin, 974 F.2d at 1060).

With regard to the objective requirement, "[e]xamples of serious medical needs include '[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Lopez, 203 F.3d at 1131 (quoting McGuckin, 974 F.2d at 1059-60).

Under the subjective element, prison officials are deliberately indifferent to a prisoner's serious medical needs when they "deny, delay or intentionally interfere with medical treatment." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). "[T]he official must be both 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." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Inadequate treatment due to medical malpractice, negligence, or even gross negligence, does not rise to the level of a constitutional violation. See Wilson v. Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

A defendant's acts or omissions will not amount to a constitutional violation unless there is reckless disregard of a risk of serious harm to the prisoner. Farmer, 511 U.S. at 836. The inmate must allege that the defendant purposefully ignored or failed to respond to his pain or medical needs; an inadvertent failure to provide adequate care does not constitute a violation. Estelle, 429 U.S. at 105-06. The official must have "know[n] that [the] inmate[] face[d] a substantial risk of serious harm and disregard[ed] that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847.

2. Discussion

a. Objective element

Here, as to the objective element, Butler claims that he has the hepatitis C virus, a serious medical condition, and he is at stage three of his liver disease; stage four is the end stage (fatal stage). (First Am. Compl 6, ECF No 23.) Butler alleges that when he was first prescribed daily doses of consensus interferon, he was "at stage two of degradation of [the] disease," but an April 7, 2011 biopsy revealed that his condition had worsened. (Id.) Plaintiff alleges that without the treatment he requests, he will be "more susceptible to contract other (H.C.V.) related disease[s] such as liver cancer [and] liver cirrhosis, all irreparable diseases." (Id. at 8.) Essentially, Butler argues that failure to treat his hepatitis C virus will result in his death. (See id. at 6-8; and Pl.'s Mot. Amend Compl.'s Prayer 3, ECF 69 (Defendants' protocols require Plaintiff to "flirt with irreparable and terminal stages of disease . . . .").)

The Supreme Court in Erickson v. Pardus, 551 U.S. 89 (2007), held that denial of hepatitis C treatment that results in endangerment of a prisoner's life is sufficient to meet the objective requirement for an Eighth Amendment claim based on deliberate indifference to a serious medical need. See Erickson, 551 U.S. at 93-94.*fn3

Because Butler has alleged that Defendants are denying him required hepatitis C treatment and that continued denial will ultimately result in his death, he has adequately alleged injuries "that a reasonable doctor or patient would find important and worthy of comment or treatment . . . ." Lopez, 203 F.3d at 1131; see also Erickson, 551 U.S. at 94. Butler has pleaded sufficient facts to satisfy the objective requirement that he suffers from a serious medical need. See id.

b. Subjective element

To succeed on an Eighth Amendment claim, however, the Plaintiff must also satisfy the subjective element of deliberate indifference. Jett, 439 F.3d at 1096. Butler must allege that Defendants knew he faced a substantial risk of serious harm and acted without regard to that risk. See Farmer, 511 U.S. at 836-37; Estelle, 429 U.S. at 104-05. Negligent medical care is not the equivalent of a constitutional violation. Estelle, 429 U.S. at 105-06.

Here, Butler "seeks permission to amend his original complaint filing . . . [based] on supplemental evidence received since [the] original complaint was filed . . . ." (Pl.'s Mot. Amend Compl.'s Prayer 1, ECF No. 69.) Plaintiff maintains that he "is being denied Doctor's prescribed medical care for his hepatitis [C] virus, HCV." (Id. at 2.) Butler alleges that since his First Amended Complaint, he has received supplemental information from Dr. John Zweifler, the "Deputy Medical Executive for Field Operations in the Central Area for California Correctional Health Care Services ('CCHCS')." The medication Plaintiff seeks is "'scarce in quantity given the current economic state of (CCHCS).[']" (Id. at 3.)

Plaintiff asserts that he is "at stage 3 of 4 fibrosis," and he was "prescribed specific treatment [on] July 6, 2011[,] by [an] Infections Disease Specialist . . . ." (Id.) Butler alleges that despite this prescription, he has "remained medically untreated" for fifteen months, and no date has been given for when the "prescribed treatment will be provided." (Id.) He further alleges that the "prison only monitor[s] the progression of [his] disease [and] does nothing [to] treat [the] disease to abate its progression but can only inform when [the] disease has reached [its] end stages, [and] therefore cannot be considered adequate [c]onstitutional medical care." (Id. at 4-5.)

Butler maintains that "the medicine prescribed for him wont [sic] be [c]onstitutionally provided to him due to prison overcrowding and the financial crisis [its] rectifying has caused . . . ." (Id. at 2.) Plaintiff asserts that "[w]hen and if protocols are established due to aforestated economic reasons, the protocols to be established are [u]nconstitutional, as being established based upon economic crisis and administrative convenience[;] they deny promptly needed medical treatment for non-medical reasons . . . ." (Id. at 3.) Butler alleges that this denial places him at risk for "irreparable and terminal stages of disease . . . ." (Id.)

Plaintiff maintains that "(CCHCS) may never establish protocols for use of the medicine thats [sic] been prescribed for plaintiff as [sic] due to the current-economic state of (CCHCS) . . . ." (Id. at 4.) He continues, "When/if this plaintiff is treated, many other like-confined persons would and do need this same medical care, [and] the cost could/would colapse (CCHCS) economically." (Id.) Butler alleges that CCHCS is establishing a hepatitis C virus "policy to save money at the [expense of his health], as needed treatment is denied by economic concerns rather than the effective medical care of plaintiff." (Id.) He asserts that this "is directly caused by prison overcrowding and the cost for rectifying overcrowding." (Id.)

Butler contends that Defendants' decision not to provide him with the medication he requests amounts to deliberate indifference to his medical needs in violation of his constitutional rights.

(See id.) Plaintiff seeks to amend his complaint to include overcrowding allegations and to add to his prayer for relief a request for an "En Banc panel of three Judges to consider [a] Prison Release Order." (Id. at 5.)

Defendants Barnett, Jayunsundara, Rivera, Walker and Glynn assert that Plaintiff has failed to establish that overcrowding is the "primary cause" for the failure to treat him with boceprevir and telaprevir. (Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF 73.) Defendants also maintain, "It is true that [boceprevir] is very expensive. However, the other reason why such treatment is saved for inmates suffering from advanced HCV disease is because of serious side effects that could have an adverse impact on the health of the inmate-patient." (Id. at 2-3.)

Defendants also cite Dr. Zweifler's declaration, on which Butler relies, but Dr. Zweifler explains that boceprevir "is highly toxic with the potential for serious side effects including a depletion of the inmate-patient's red and white blood cells along with gastrointestinal problems and skin reactions." (Id. at 3.)

In Plaintiff's Reply to Defendants' Opposition, Butler addresses Defendants' claims that, because of its adverse side effects, boceprevir is saved for inmates suffering from advanced HCV, which Plaintiff is not. (Pl.'s Reply Defs.' Opp'n 3, ECF No. 81.) Butler maintains that this contention is "absurd" and "ludicrous." (Id.) Plaintiff asserts that it is inappropriate for Defendants to wait to treat HCV patients with boceprevir until they are the "most toxic." (Id.) Butler continues, "Plaintiff has been and is now denied medical care as a matter of economic concern and crisis directly linked to -- California Prison Over Crowding . . . ." (Id.)

Prison officials act with deliberate indifference when they "'intentionally interfer[e] with . . . treatment once prescribed.'" Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (alteration in original) (quoting Estelle, 429 U.S. at 104-05). A violation may be found when a prison official deliberately ignores explicit orders from the inmate's doctor for reasons unrelated to the prisoner's medical needs. Id. (citing Hamilton v. Endell, 981 F.2d 1062, 1066-67 (9th Cir. 1992) (holding that intentional interference could be found when prison officials forced Hamilton to fly on an airplane, contrary to orders from the prisoner's prior physician).)

"But the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment." Estelle, 429 U.S at 107. At most, it may constitute medical malpractice. (Id.)

Deliberate indifference may be adequately alleged where a physician pursues a treatment plan that was not "the product of sound medical judgment." Chance v. Armstrong, 143 F.3d 698, 703-04 (2th Cir. 1998). In Chance, the plaintiff alleged that two doctors recommended a course of treatment, "not on the basis of their medical views, but because of monetary incentives." Id. at 704. This was sufficient to allege deliberate indifference.

Similarly, in Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), the plaintiff alleged that he was told that he would not receive the necessary treatment because the county had a "tight budget." Id. at 771. The court noted, "We find no other explanation in the record than the budget concerns for denying Jones's surgery. Budgetary constraints, however, do not justify cruel and unusual punishment." Id. In another case, for budgetary reasons, one doctor is alleged to have "nixed the diagnostic tests required by the treating physicians." Goring v. Elyona, No. 96 C 4521, 1997 U.S. Dist. LEXIS 1464, at *7 (N.D. Ill. Feb. 13, 1997).

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

Id. (internal citation omitted). The court declined to dismiss the claim against Dr. Elyea.

Butler alleges that Defendants failed to provide him with his "Doctor's prescribed medical care for his hepatitis [C] virus (HCV)." (Pl.'s Mot. Amend Compl.'s Prayer 2, ECF No. 69.) "Refusing to treat a progressively degenerative condition that is potentially dangerous and painful if left untreated may constitute deliberate indifference." Jolley v. Corr. Managed Health Care, 3:04-cv-1582 (RNC), 2008 U.S. Dist. LEXIS 106854, at *10, (D. Conn. Jan. 30, 2008).

Plaintiff has asserted that the Defendants failed to provide the prescribed medical care in order to "save money." (Pl.'s Mot. Amend Compl.'s Prayer 4, ECF No. 69.) Butler alleges that "needed treatment is denied by economic concerns rather than the effective medical care of plaintiff." (Id.) He rests the allegation on a single statement made by Dr. Zweifler in his declaration that the medication prescribed for Plaintiff "is scarce in quantity given the current economic state of (CCHCS)." (Id. at 3.) This comment does not go so far as to state that Butler is being denied boceprevir because of its cost. (See id.)

Defendants Barnett, Jayunsundara, Rivera, Walker, Zamora and Glynn, offer other reasons for not providing Plaintiff with boceprevir. (Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF 73.) In their opposition, Defendants assert that the "treatment is saved for inmates suffering from advanced HCV disease . . . because of side effects that could have an adverse impact on the health of the inmate-patient." (Id. at 2-3.) They further point out that Dr. Zweifler also states that the medication is "highly toxic with the potential for serious side effects including a depletion of the inmate-patient's red and white blood cells along with gastrointestinal problems and skin reactions." (Id. at 3.)

As stated above, the Court need not accept conclusory allegations in a complaint or motion to amend; rather, it must "'examine whether [they] follow from the description of facts as alleged by the plaintiff.'" Holden, 978 F.2d at 1121 (quoting Brian Clewer, Inc. v. Pan American World Airways, Inc., 674 F.

Supp. at 785). Butler alleges that Defendants have failed to provide him with boceprevir in order to save money. (Pl.'s Mot. Amend Compl.'s Prayer 4, ECF No. 69.) Plaintiff further asserts that the need to "save money" arises from prison "overcrowding and the cost for rectifying overcrowding." (Id.) He concludes that Defendants' failure to provide him with boceprevir is based solely on budgetary constraints, not medical judgment. (See id. at 4-5.)

Based on this, Butler alleges that Defendants acted with deliberate indifference. (Id.)

The Court is not required to "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell, 266 F.3d at 988. Butler's broad allegations against the multiple Defendants are based on unreasonable inferences unsupported by facts. See Holden, 978 F.2d at 1121. If a specific Defendant had decided to deny Plaintiff the medication based solely on monetary concerns, Plaintiff would have a colorable claim for deliberate indifference. See Goring, 1997 U.S. Dist. LEXIS 1464, at *7. This is not the case. Plaintiff does not support his claim with factual allegations directed to each Defendant. (See Pl.'s Mot. Amend Compl.'s Prayer , ECF No. 69.) Instead, he draws an inference based on a single reference to medication being scarce because of economic constraints. Butler has failed to provide the sufficient factual allegations necessary to allow the Court to accept his ultimate conclusion that prison overcrowding created a financial strain on the prison that led to the decision by multiple Defendants that Butler would not be treated with boceprevir. See Holden, 978 F.2d at 1121.

Further, Defendants provide additional reasoning based on sound medical judgment for not treating Butler with boceprevir and telaprevir. (See Defs.' Opp'n Pl.'s Mot. Amend Compl. 2-3, ECF No. 73.) Without more, Butler's assertion that the Defendants' failure to provide the requested medication constitutes deliberate indifference is insufficient to state a claim against the six Defendants. See Estelle, 429 U.S. at 107.

Although Plaintiff has sufficiently pleaded a serious medical need, he has not asserted facts sufficient to show that prison overcrowding caused each Defendant to be deliberately indifferent to Butler's medical needs in violation of the Eighth Amendment. See Jett, 439 F.3d at 1096.

Thus, Plaintiff's Motion to Amend his Complaint and prayer for relief can be denied on this basis.

C. Motion for Leave to Amend is Futile

Even if Plaintiff had sufficiently pleaded an Eighth Amendment violation due to overcrowding, his motion to amend to add a request for a prison release order is futile.

In this case, Defendant Kelso filed his Answer on June 7, 2012 [ECF No. 26]. After an answer, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a). "The court should freely give leave when justice so requires." Id. It rests in the sound discretion of the trial court whether to grant leave to amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993)).

In general, "Rule 15's policy of favoring amendments to pleadings should be applied with 'extreme liberality.'" United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curium)). The policy favoring amendments under Rule 15(a) "is applied even more liberally to pro se litigants" than to parties represented by counsel. Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). It is only where an amendment of a pro se litigant's complaint would be futile that denial of leave to amend is appropriate. Lopez v. Smith, 203 F.3d at 1131; Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

The factors to be considered in deciding whether to grant a motion to amend are "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Bonin, 59 F.3d at 845 (citing W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)).

In this case, granting Plaintiff leave to amend the Complaint would be futile. Butler requests an "En Banc panel of three Judges to consider [a] Prison Release Order." (Pl.'s Mot. Amend Compl.'s Prayer 5, ECF 69.) This specific relief, however, is available pursuant to 18 U.S.C. § 3626(a)(3). 18 U.S.C.A. § 3626(a)(3) (West 2000).

Defendants Barnett, Jayunsundara, Rivera, Walker, Zamora, and Gylnn assert that Butler does not meet the requirements for a prison release order, and the request to amend is therefore futile. (Defs.' Opp'n Pl.'s Mot. Amend Compl. 2, ECF 73.)

[P]rison release orders are permitted only if previous, less intrusive relief has failed to remedy the federal law violation in a reasonable time. A release order must be supported by clear and convincing evidence that "crowding is the primary cause of the violation of a Federal right" and no other relief will remedy the violation. (Id. (citing 18 U.S.C. § 3626(a)(3)(E)(i)-(ii)).) Defendants maintain that Butler has not shown that overcrowding is the "primary cause" of the denial of requested treatment. (Id.)

Defendants further allege that Butler has failed to show that "no other relief will remedy the violation." (Id. at 2.) In Defendants' Supplemental Brief in Opposition to Plaintiff's Motion to Amend, they cite Brown v. Plata, __ U.S. __, __, 131 S. Ct. 1910, 1922 (2010), for the proposition that "'[t]he authority to order release of prisoners as a remedy to cure a systematic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single judge district court.'" (Id. at 3.) The remedy Butler seeks is not available in this action. Therefore, he does not meet the requirements for a prison release order. (Id.)

Prison Release Orders are governed by 18 U.S.C. § 3626 subsection (a)(3)(A).

In any civil action with respect to prison conditions, no court shall enter a prison release order unless ---

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

18 U.S.C.A. § 3626(a)(3)(A).

Plaintiff does not allege that a district court has previously entered an order granting him less intrusive relief. Thus, Butler is unable to meet the requirements for a prison release order; his request is futile; and the motion to amend may be denied on this basis. See Nagast v. Dep't of Corr., No. ED CV 09-1044-CJC (PJW) 2012 U.S. Dist. LEXIS 59309, at *7-8 (C.D. Cal. Feb. 28, 2012) (citing 18 U.S.C. § 3626(a)(3)(b)). In Nagast, the plaintiff sought an order under 18 U.S.C. § 3626 asking that he be released due to overcrowding. The court held that "[a] prisoner release order may only be issued if 'a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prison release order' . . . ." Id. at *8 (quoting 18 U.S.C. § 3626(a)(3)(A)). The court found that because Plaintiff had not been granted previous relief, "[he] cannot bring a claim under § 3626 . . . [and] this claim is dismissed with prejudice." Id. (citing 18 U.S.C. § 3626(a)(3)(B)).

III. CONCLUSION

For the reasons discussed above, Butler has failed to state claim for which relief may be granted. Even ignoring this defect, Plaintiff has not shown that he is entitled to the requested relief. On both bases, Butler's Motion to Amend His Complaint's Prayer [ECF No. 69] is DENIED.*fn4

IT IS SO ORDERED.

cc: Judge Bencivengo All Parties of Record


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