United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in this action
brought pursuant to 42 U.S.C. § 1983. The court screened
his first complaint and determined that, based on his Eighth
Amendment medical deliberate indifference claims, service was
appropriate for defendant Adlasghar Mohyuddin. ECF No. 9. On
August 27, 2018, plaintiff filed an amended complaint. ECF
No. 23. The court screened that complaint and determined
that, unlike its predecessor, it failed to state a cognizable
claim. ECF No. 36. The court dismissed it with leave to
amend. Id. Thereafter, plaintiff submitted his
second amended complaint (ECF No. 42) which the court must
to § 1915(e)(2), the court must dismiss the case at any
time if it determines the allegation of poverty is untrue, or
if the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against an immune defendant.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) “requires a complaint to
include a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at
before, plaintiff alleges that, in June of 2017, he was
examined by physician assistant Diedre Bodenhamer for
complaints of pain related to spinal stenosis (and
“other related neuropathic pain”). ECF No. 42 at
4-5. Bodenhamer told plaintiff that she had sought to
prescribe him more effective pain medication - like
Gabapentin or Lyrica - but was denied approval for either
medication by the institutional pain management committee
(“IPMC”). Id. at 5. In lieu of those
medications, Bodenhamer suggested using epidural steroid
injections as a stopgap until a more permanent pain
management plan could be approved by the IPMC. Id.
Plaintiff agreed to Bodenhamer's treatment plan.
Id. at 6.
September of 2017, plaintiff was re-assigned to defendant
Mohyuddin's care due to unidentified
“administrative factors.” Id. at 6-7.
Mohyuddin objected to Bodenhamer's treatment plan and
claimed that there were alternative methods of treating
plaintiff's pain. Id. at 7. He rescinded her
treatment plan and allegedly implemented only unspecified
“methods, procedures, or medications” that had
been previously “attempted unsuccessfully.”
Id. at 7-8. When plaintiff complained that
Mohyuddin's methods were not alleviating his pain, the
latter allegedly stated that “everyone has some form of
pain, they just learn to live with it.” Id. at
8. Based on the foregoing, plaintiff alleges that Mohyuddin
deprived him of the only viable treatment option to manage
his pain. Id. at 8-9.
establish deliberate indifference, a claimant must allege
that: (1) he had a serious medical need; and (2) that
defendant's response to that need was deliberately
indifferent. See Wilhelm v. Rotman, 680 F.3d 1113,
1122 (9th Cir. 2012). “Prison officials are indifferent
to prisoners' serious medical needs when they deny,
delay, or intentionally interfere with medical
treatment.” Hamilton v. Endell, 981 F.2d 1062,
1066 (9th Cir. 1992). To establish deliberate indifference
with respect to a physician's treatment decision, a
plaintiff must allege that “the course of treatment the
doctors chose was medically unacceptable under the
circumstances, and the plaintiff must show that they chose
this course in conscious disregard of an excessive risk to
plaintiff's health.” Jackson v. McIntosh,
90 F.3d 330, 332 (9th Cir. 1996) (internal citations and
quotation marks omitted). Mere differences of medical opinion
are insufficient to establish deliberate indifference.
See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989) (“At most, Sanchez has raised a difference of
medical opinion regarding his treatment. A difference of
opinion does not amount to a deliberate indifference to
Sanchez' serious medical needs.”).
essence of plaintiff's claim is, as noted supra,
that defendant Mohyuddin declined to follow Bodenhamer's
treatment plan and give plaintiff steroid injections to
manage his pain. Plaintiff has failed to allege facts which,
taken as true, establish that Mohyuddin acted with deliberate
indifference to plaintiff's medical needs. Documents
attached to the amended complaint indicate that
Mohyuddin did not believe the injections would provide more
than a “paltry” benefit to plaintiff. ECF No. 42
at 25. He also believed there to be a “finite