Thornberry v. Chau

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 screen.

         Screening

         I. Legal Standards

         Pursuant 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.

         Although 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).

         In 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 562-563 (2007).

         II. Analysis

         A. Background

         As 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.

         In 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.

         B. Analysis

         To 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.”).

         The 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^[1] to the amended complaint indicate that Mohyuddin did not believe the injections would provide more than a “paltry”^[2] benefit to plaintiff. ECF No. 42 at 25. He also believed there to be a “finite risk” ...