United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS'
MOTION TO DISMISS (DOC. 30) 21-DAY DEADLINE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
claims the defendants acted with deliberate indifference to
his treatment of his diplopia (double-vision) which presented
after surgery to remove nasal polyps. (See Doc. 9.)
Defendants Dr. Klang, Dr. Youssef, Dr. Songer, Dr. Patel, and
Lewis move the Court to dismiss the action, asserting that
Plaintiff's allegations fail to state a claim upon which
relief can be granted. (Doc. 30, MTD.)
the Court finds that there Plaintiff's second amended
complaint and the responses to his inmate grievances
demonstrate the defendants did not violate his Eighth
Amendment rights and because the state claims are untimely,
the Court recommends the motion be GRANTED
and this entire action be dismissed.
Court may dismiss an action under Rule 12(b)(6) if there is a
lack of a cognizable legal theory stated or there are
insufficient facts alleged to support a cognizable legal
theory. Conservation Force v. Salazar, 646 F.3d
1240, 1241-42 (9th Cir. 2011), cert. denied, 132
S.Ct. 1762 (2012). To survive a motion to dismiss, a
complaint must contain sufficient factual allegations,
accepted as true, to state a claim that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept well-pled factual
allegations as true and draw all reasonable inferences in
favor of the non-moving party. Daniels-Hall v. National
Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010);
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007);
Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04
(9th Cir. 2006); Morales v. City of Los Angeles, 214
F.3d 1151, 1153 (9th Cir. 2000). The Court liberally
construes pleadings of prisoners proceeding pro se
and any doubt is resolved in the inmate's favor.
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th
Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090,
1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010).
"[i]f there are two alternative explanations, one
advanced by defendant and the other advanced by plaintiff,
both of which are plausible, plaintiff's complaint
survives a motion to dismiss under Rule 12(b)(6)."
Starr v. Baca, 652 F.3d 1202, 1216-17.
"Plaintiff's complaint may be dismissed only when
defendant's plausible alternative explanation is so
convincing that plaintiff's explanation is
implausible. The standard at this stage of the
litigation is not that plaintiff's explanation must be
true or even probable. The factual allegations of the
complaint need only 'plausibly suggest an entitlement to
relief.'" Id. (emphasis in original).
"Rule 8(a) 'does not impose a probability
requirement at the pleading stage; it simply calls for
enough fact to raise a reasonable expectation that discovery
will reveal evidence' to support the allegations."
Id., quoting Twombly, 550 U.S. at 556
(emphasis added in Starr).
argue that Plaintiff's allegations show that none of the
doctors named denied or delayed his medical treatment and
that they and Lewis deferred to the treatment plans of the
medical specialists. (Doc. 30, 3:22-9:4.) Further, Defendants
assert that this suit was not timely filed after the Victims
Compensation and Government Claims Board ("VCGCB")
rejected his claim. (Id., at 9:5-10:2.)
Deliberate Indifference to Serious Medical Needs
maintain an Eighth Amendment claim based on medical care in
prison, a plaintiff must first "show a serious medical
need by demonstrating that failure to treat a prisoner's
condition could result in further significant injury or the
unnecessary and wanton infliction of pain. Second, the
plaintiff must show the defendants' response to the need
was deliberately indifferent." Wilhelm v.
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
(quotation marks omitted)).
the condition is one that a reasonable doctor would find
important and worthy of comment or treatment, it affects the
patient's daily activities or it causes chronic or
substantial pain, a serious medical need is likely to exist.
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(citing McGuckin v. Smith, 974 F.2d 1050, 1059-60
(9th Cir. 1992), overruled on other grounds by WMX
Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
1997) (en banc)) (quotation marks omitted); Doty v.
County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994).
Plaintiff's double vision problem that occurred after his
nasal polyp removal surgery appears to be a serious medical
indifference is "a state of mind more blameworthy than
negligence" and "requires ‘more than ordinary
lack of due care for the prisoner's interests or
safety.'" Farmer, 511 U.S. at 835 (quoting
Whitley, 475 U.S. at 319). "Deliberate
indifference is a high legal standard." Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir.2004). "Under
this standard, the prison official must not only ‘be
aware of the facts from which the inference could be drawn
that a substantial risk of serious harm exists, ' but
that person ‘must also draw the inference.'"
Id. at 1057 (quoting Farmer, 511 U.S. at
837). "‘If a prison official should have been
aware of the risk, but was not, then the official has not
violated the Eighth Amendment, no matter how severe the
risk.'" Id. (quoting Gibson v. County
of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
medical cases, this requires showing: (a) a purposeful act or
failure to respond to a prisoner's pain or possible
medical need and (b) harm caused by the indifference.
Wilhelm, 680 F.3d at 1122 (quoting Jett,
439 F.3d at 1096). More generally, deliberate indifference
"may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be
shown by the way in which prison physicians provide medical
care." Id. (internal quotation marks omitted).
neither a "difference of opinion between a physician and
the prisoner - or between medical professionals - concerning
what medical care is appropriate, " nor even medical
malpractice suffices for deliberate indifference claims.
Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow
v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)),
overruled in part on other grounds, Peralta v.
Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014);
Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir.
2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1986)). Rather, Plaintiff "must show that the
course of treatment the doctors chose was medically
unacceptable under the circumstances and that the defendants
chose this course in conscious disregard of an excessive risk
to [his] health." Snow, 681 F.3d at 988 (citing
Jackson, 90 F.3d at 332) (internal quotation marks