Linder v. Soltenian

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) motion to dismiss by defendants Galang and Pucelik (ECF No. 19); and (2) unopposed motion for summary judgment by Smith and Soltenian (ECF No. 24).

         I. BACKGROUND

         A. Plaintiff's Allegations

         This action proceeds on plaintiff's first amended complaint. See ECF No. 9. Plaintiff names the following doctors as defendants: (1) Jalal Soltenian, M.D.; (2) J. Chau, M.D.; (3) Christopher Smith, M.D.; (4) James Pucelik, M.D.; and (5) Carmelino Galang, M.D. Drs. Soltenian, Chau, and Smith are prison physicians. Drs. Pucelik and Galang are physicians at San Joaquin General Hospital. According to plaintiff, by 2009 he became dependent on a cane and knee braces due to degenerative changes caused by arthritis. See ECF No. 9, p. 6. Plaintiff states he had been issued a “reasonable accommodation chrono” for a lower bunk and lower tier cell assignment because of his mobility problems. Id.

         Plaintiff claims defendant Soltenian cancelled his lower tier accommodation chrono in 2014, despite the fact that plaintiff informed the doctor that doing so would “place my life, health well-being in jeopardy as to being injured and or causing an untimely death.” Id. Plaintiff further alleges: “Dr. Soltenian said he did not care and he with a clear concious [sic] and deliberate intent with no regard for my well-being took away all my reasonable accommodations except for my lower bunk. . . .” Id. Plaintiff states he was required to move to an upper tier cell and, after several months going up and down stairs, he hyperextended his left knee to the point he could no longer walk. See id. Plaintiff alleges he was taken to the clinic after this injury but “was denied treatment and sent away, ” though plaintiff does not allege by whom. Id. Plaintiff was eventually seen at the medical clinic after he fell again two weeks later and was informed by Dr. Rudest (who is not a named defendant) that plaintiff would require a total knee replacement. See id. at 7. Plaintiff states he received a total knee replacement on March 30, 2015.

         According to plaintiff, approximately two weeks following his surgery, his knee “started popping and making a grinding sound really bad, ” causing his knee to become dislocated. Id. Plaintiff was seen at the prison medical clinic by defendant Chau, who submitted a request for plaintiff to be seen by the surgeon. Id.

         Next, plaintiff claims he was seen by an outside specialist, defendant Galang, on October 20, 2015. See id. According to plaintiff, defendant Galang “did not want to hear it and tried to tell me that there is nothing wrong.” Id. Plaintiff was returned to the prison where he submitted “numerous 7362 Medical Requests” and was seen again by defendant Chau who prescribed pain medication “until I could see Dr. Galang once again.” Id. at 7-8. Plaintiff alleges that, when he was sent to see defendant Galang again, he was informed “Dr. Galang had fled the County to avoid Medical malpractice Suites [sic].” Id. at 8.

         Plaintiff states he thereafter returned to see an outside specialist a month later. He was told by Dr. Casey (who is not a named defendant) the problem with his knee replacement could have been resolved. See ECF No. 9, pg. 8. Plaintiff alleges, “out of the blue” defendant Smith approved plaintiff to see another outside specialist, defendant Pucelik, who told plaintiff “there is nothing more anyone can do. . . .” Id. According to plaintiff, defendant Pucelik informed him “he [presumably Dr. Pucelik] was told specifically by Dr. Smith that I have to deal with it, live with it, and there will be no further specialist care, per orders of Dr. Smith.” Id.

         B. Procedural History

         On November 6, 2018, the court determined the action was appropriate for service on defendants Galang, Pucelik, Smith, and Soltenian. See ECF No. 10. On November 14, 2018, the court issued findings and recommendations that defendant Chau be dismissed. See ECF No. 11. On February 13, 2019, waivers of service were returned on behalf of defendants Smith and Soltenian. See ECF No. 15. Defendants Smith and Soltenian filed their answer on March 1, 2019. See ECF No. 17. On March 12, 2019, waiver of service was returned on behalf of defendants Galang and Pucelik. See ECF No. 18. Defendants Galang and Smith filed their motion to dismiss on March 14, 2019. See ECF No. 19. On March 27, 2019, the District Judge assigned to this case adopted the court's November 14, 2018, findings and recommendations and defendant Chau was dismissed. See ECF No. 20. Defendants Smith and Soltenian filed their unopposed motion for summary judgment on May 2, 2019. See ECF No. 24.

         II. DISCUSSION

         A. Motion to Dismiss (Defendants Galang and Pucelik)

         In their motion to dismiss, defendants Galang and Pucelik argue: (1) plaintiff's action is time-barred; and (2) plaintiff fails to state a claim against them under the Eighth Amendment for deliberate indifference to his serious medial needs. Defendants also contend that, to the extent plaintiff is permitted leave to amend, he should be required to provide a more definite statement pursuant to Federal Rule of Civil Procedure 12(e).

         1. Standard for Motion to Dismiss

         In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

         Rule 8(a)(2) requires only “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.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

         In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

         Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

         2. Analysis

         i. Statute ...