United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA, UNITED STATES MAGISTRATE JUDGE
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).
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
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.
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.
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.
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.”
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.
Motion to Dismiss (Defendants Galang and
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
Standard for Motion to Dismiss
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).
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).
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).
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).