United States District Court, S.D. California
ORDER DISMISSING IN PART THIRD AMENDED COMPLAINT [ECF
Cynthia Bashant United States District Judge.
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.
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.
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.
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.)
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)).
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.)
Freund and Merritt
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.
Zhang and Khamooshian
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.)
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.
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 ...