Bradford v. Khamooshian

          ORDER DISMISSING IN PART THIRD AMENDED COMPLAINT [ECF NO. 160]

          Hon. Cynthia Bashant United States District Judge.

         I. BACKGROUND

         Plaintiff Raymond Alford Bradford, proceeding pro se and in forma pauperis, filed this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff's first complaint was brought only against two individuals, Defendants Zhang and Khamooshian, and he alleged Eighth Amendment violations, gross negligence, and medical malpractice. (ECF No. 1.)^[1] The Court granted Zhang and Khamooshian's motions to dismiss but granted Plaintiff leave to file a first amended complaint. (ECF No. 89.) He did so and greatly expanded on the claims from his original complaint. In his First Amended Complaint (“FAC”), Plaintiff alleged that all named Defendants violated his constitutional and state law rights while he was housed at the Richard J. Donovan Correctional Facility. (ECF No. 97.) Plaintiff also alleged that his constitutional and state law rights were violated at various other state prisons.

         On July 15, 2019, the Court issued an order granting various Defendants' motions to dismiss and sua sponte dismissing Plaintiff's remaining claims. (ECF No. 144.) The Court granted Plaintiff leave to amend the following claims: Eighth Amendment claims, Fourteenth Amendment claims, Americans with Disabilities Act/Rehabilitation Act claims, RICO claims, and state law claims. (See Id. at 24.) The Court dismissed with prejudice other claims and also dismissed with prejudice the following Defendants: Freund, Merritt, Parnell, Wilson, City of San Diego, County of San Diego, and State of California. (Id.) The Court again permitted Plaintiff leave to file an amended complaint.

         Plaintiff then confusingly filed two separate second amended complaints. (ECF Nos. 153, 155.) Because doing so was improper, and because one of the complaints appeared to be missing pages, the Court permitted Plaintiff to file an amended complaint “that contains all of his allegations against all relevant Defendants.” (ECF No. 159.) Plaintiff did so. (Third Amended Complaint, “TAC, ” ECF No. 160.)

         II. ANALYSIS

         Because Plaintiff is a prisoner and is proceeding IFP, the Court may conduct a sua screening pursuant to 28 U.S.C. § 1915(e)(2) at any time. Under this statute, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“It is . . . clear that section 1915(e) not only permits but requires a district court to [sua sponte] dismiss an in forma pauperis complaint” “at any time” if the court determines that it fails to state a claim (citing 28 U.S.C. § 1915(e)(2)(B)(ii)); see also Chavez v. Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016) (“The statute governing IFP filings requires a court to dismiss an action ‘at any time' if it determines that the complaint ‘seeks monetary relief against a defendant who is immune from such relief'” (citation omitted)).

         The Defendants listed in the brief, three-page Third Amended Complaint are Zhang, Khamooshian, Deputy Attorney General Freund, Khamooshian's attorney Merritt, and Voong. Plaintiff alleges Defendants violated his Eighth Amendment Rights and denied him access to courts. (TAC at 3.)

         A. Freund and Merritt

         First, the Court has already dismissed with prejudice claims against Defendants Freund and Merritt. Plaintiff previously alleged Freund and Merritt were acting in concert to obstruct justice and to steal Plaintiff's legal papers. (ECF No. 144, at 5.) Plaintiff again makes claims against the two individuals in his Third Amended Complaint, but the claims have already been dismissed with prejudice. Plaintiff further references a conspiracy to frame him for attempted murder, but this claim has also been dismissed with prejudice. (Id.) Therefore, the Court does not analyze the previously-dismissed claims against Freund and Merritt.

         B. Zhang and Khamooshian

         As relevant here, Plaintiff previously alleged Defendants Zhang and Khamooshian violated his Eighth Amendment rights. The Court found Plaintiff had not pled that Defendants' actions rose to the level of deliberate indifference. (ECF No. 144, at 9-11.)

         Now, Plaintiff again pleads he was in pain and experiencing medical problems, but Zhang denied Plaintiff's request to be placed in the prison infirmary. (TAC at 2.) Zhang also “did nothing” to treat Plaintiff's injuries. (Id.) The Court finds Plaintiff has again not pled sufficient facts to demonstrate deliberate indifference. As the Court previously held, Plaintiff's “allegations that Zhang refused to admit him to the infirmary demonstrate nothing more than a difference of opinion as to the course of Plaintiff's medical treatment.” (ECF No. 144, at 8-9.) A “difference of opinion between a physician and the prisoner- or between medical professionals-concerning what medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citation omitted), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). Plaintiff also again pleads that Zhang was grossly negligent, but as the Court previously held, “[e]ven gross negligence is insufficient to establish deliberate indifference to serious medical needs.” (ECF No. 144, at 9 (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). The Court DISMISSES all allegations against Zhang.

         Plaintiff alleges Khamooshian “lied to Plaintiff about his medical ailment” and “did not examine him” which caused his injuries to worsen. (TAC at 2.) These allegations do not differ from what Plaintiff previously alleged against ...